United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
JOHN H. RICH III, Magistrate Judge.
This Social Security Disability ("SSD") and Supplemental Security Income ("SSI") appeal raises the questions of whether the administrative law judge's opinion concerning the plaintiff's residual functional capacity ("RFC") lacked substantial evidentiary support and whether the administrative law judge posed an erroneous hypothetical question that invalidated the testimony of the vocational expert. I recommend that the commissioner's decision be vacated and the case remanded for further proceedings.
In accordance with the commissioner's sequential evaluation process, 20 C.F.R. §§ 404.1520, 416.920; Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the administrative law judge found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act for purposes of SSD only through September 30, 2009, Finding 1, Record at 15; that he suffered from an anxiety disorder, substance addiction, fibromyalgia, and obesity, impairments that were severe but which, considered separately or in combination, did not meet or medically equal the criteria of any impairment listed in Appendix 1 to 20 C.F.R. Part 404, Subpart P (the "Listings"), Findings 3-4, id. at 15-16; that he retained the RFC to perform light work that would allow him to change position every hour for one to two minutes, except that he could only occasionally climb ramps or stairs, balance, stoop, kneel, crouch, or crawl, could not climb ladders, ropes, or scaffolds, must avoid unprotected heights and sloping or irregular work surfaces, would be able to understand, remember, and carry out simple and repetitive jobs, could occasionally interact superficially with the public, could not work in crowds larger than five to six people, and could occasionally interact with co-workers and supervisors in routine interactions, Finding 5, id. at 17; that he was unable to perform any past relevant work, Finding 6, id. at 22; that, given his age (25 on the alleged date of onset of disability, February 18, 2009), at least high school education, work experience, and RFC, and using the Medical-Vocational Rules in Appendix 2 to 20 C.F.R. Part 404, Subpart P (the "Grid") as a framework for decision-making, there were jobs existing in significant numbers in the national economy that the plaintiff could perform, Findings 7-10, id, at 22-23; and that, therefore, the plaintiff was not under a disability, as that term is defined in the Social Security Act, at any time from the alleged date of onset through the date of the decision, September 28, 2012, Finding 11, id. at 23. The Appeals Council declined to review the decision, id. at 1-3, making it the final determination of the commissioner, 20 C.F.R. §§ 404.981, 416.1481; Dupuis v. Secretary of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).
The standard of review of the commissioner's decision is whether the determination made is supported by substantial evidence. 42 U.S.C. § 1383(c)(3); Manso-Pizarro v. Secretary of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
The administrative law judge reached Step 5 of the sequential evaluation process, at which stage the burden of proof shifts to the commissioner to show that a claimant can perform work other than his past relevant work. 20 C.F.R. § 416.920(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the commissioner's findings regarding the plaintiff's RFC to perform such other work. Rosado v. Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).
The plaintiff contends that the record contains "no support" for an RFC for light work. Plaintiff's Itemized Statement of Errors ("Itemized Statement") (ECF No. 11) at 4. He points out that the DDS reviewing physicians both assigned the plaintiff an RFC for sedentary work, and Dr. Axelman, a consulting examining physician, assigned him physical limitations more severe than those assigned by the DDS physicians, Drs. Turnbull and Chamberlin. Id. at 4-5. Because there is no other medical assessment of the plaintiff's physical capacities in the record, he asserts, the administrative law judge could only have crafted the RFC that he assigned to the plaintiff by improperly interpreting raw medical evidence on his own. Id. at 5.
The defendant responds that that, while affording Dr. Chamberlin's opinion little weight, the administrative law judge adopted the following limitations from his report: the need to change position every hour for one to two minutes; the ability to climb ramps or stairs, balance, stoop, kneel, crouch, or crawl only occasionally; the lack of any ability to climb ladders, ropes, or scaffolds; and the need to avoid unprotected heights and sloping or irregular work surfaces. Defendant's Opposition to Plaintiff's Itemized Statement of Errors ("Opposition") (ECF No. 12) at 9. This is an accurate statement. Compare Record at 17 with id. at 405-08. However, it is not accurate to conclude from this fact, as the defendant does, that the administrative law judge's physical RFC for the plaintiff is "largely supported by medical opinion evidence." Opposition at 9.
The exertional level assigned to a claimant is the single most defining characteristic of a physical RFC, see, e.g., Adkins v. Commissioner of Soc. Sec., 251 Fed.App'x 346, 349, 2007 WL 3037281, at **3 (6th Cir. 2007); Campbell v. Astrue, Civil Action No. 09-5356, 2010 WL 4689521, at *4 (E.D. Pa. Nov. 2, 2010), and it is that component of the RFC that is at issue here.
The defendant goes on to contend that the administrative law judge sufficiently stated the reasons why he adopted only a portion of Dr. Chamberlin's findings and rejected those of Drs. Turnbull and Axelman, Opposition at 9-10. However, that is not the issue here. The question is whether the administrative law judge's decision to assign the plaintiff an RFC at the light exertional level is supported by medical evidence of record -it is not-and, if not, whether it could only have resulted from the administrative law judge's own lay interpretation of the raw medical evidence. See Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) ("As a lay person, however, the ALJ was simply not qualified to interpret raw medical data in functional terms[.]").
The defendant addresses this question by suggesting that the choice of exertional level in this case does not required a medical judgment that is beyond the bounds of a lay person's competence. Id. at 11. Specifically, the defendant asserts, the administrative law judge "permissibly used common sense to determine that Plaintiff was capable of a range of light work activity[, ]" by noting evidence that recorded that the plaintiff was doing well with treatment for certain physical impairments and, "more importantly, " by drawing a "common sense inference" from the evidence of the plaintiff's activities of daily living. Id. at 11-12.
The first proffered support could only be performed by interpreting raw medical evidence; the question of what degree of "doing well" in treatment for a particular impairment equates to what exertional level is not a matter of "common sense" or general knowledge.
The second, "more important" justification has been rejected as a stand-alone basis for a finding of exertional level. See, e.g., Ormon v. Astrue, 497 Fed.App'x 81, 87, 2012 WL 3871560, at **6 (1st Cir. Sept. 7, 2012) ("[T]here is a difference between a person's being able to engage in sporadic physical activities and her being able to work eight hours a day five consecutive days of the week." Citation omitted.); Draper v. Barnhart, 425 F.3d 1127, 1131 (8th Cir. 2005) (fact that claimant tried to maintain home and engaged in household chores, laundry, grocery shopping, mowing, and other chores "in no way directs a finding that she is able to engage in light work."). See also, e.g., Gordils v. Secretary of Health & Human Servs., 921 F.2d 327, 329 (1st Cir. 1990) (common sense judgment appropriate where record has little evidence of physical impairments and sedentary RFC assigned, but same conclusion for more physically demanding light work would be troubling); Coleman v. Astrue, 726 F.Supp.2d 36, ...