United States District Court, D. Maine
JOHN H. RICH III, UNITED STATES MAGISTRATE JUDGE
This Social Security Disability (“SSD”) and Supplemental Security Income (“SSI”) appeal raises the question of whether the administrative law judge supportably found the plaintiff capable of performing work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that the administrative law judge erred in assessing her mental residual functional capacity (“RFC”) and in refusing to admit late-tendered evidence from the Maine Department of Health & Human Services (“DHHS”), and the Appeals Council erred in declining review on the basis that there was no reasonable probability that the DHHS evidence would have been outcome-determinative. See Plaintiff’s Itemized Statement of Errors (“Statement of Errors”) (ECF No. 15) at 5-13. Because the administrative law judge’s assessment of the plaintiff’s mental RFC is unsupported by substantial evidence, I vacate the commissioner’s decision and remand this case for further proceedings consistent herewith.
Pursuant to 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 through March 31, 2009, Finding 1, Record at 14; that she had severe impairments of anxiety-related disorder/anxiety NOS (not otherwise specified), substance addiction disorder/history of alcohol abuse, benzodiazepine abuse with current evidence of prescribed Suboxone without medical basis, Finding 3, id.; that she had the RFC to perform a full range of work at all exertional levels but with the following nonexertional limitations: due to a mental health impairment, she could understand and remember simple instructions and execute simple tasks on a consistent schedule to complete a workday/workweek, interact with coworkers and supervisors, tolerate occasional, superficial contact with the general public, and adapt to occasional changes in the routine workplace, Finding 5, id. at 16; that, considering her age (29 years old, defined as a younger individual, on her amended alleged disability onset date, September 1, 2008), education (at least high school), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that she could perform, Findings 7-10, id. at 19; and that she, therefore, had not been disabled from September 1, 2008, through the date of the decision, January 15, 2014, Finding 11, id. at 20. The Appeals Council declined to review the decision, id. at 1-3, making the decision 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. §§ 405(g), 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 her past relevant work. 20 C.F.R. §§ 404.1520(g), 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).
On March 18, 2012, on initial review of the plaintiff’s disability applications, agency nonexamining consultant David R. Houston, Ph.D., noted that she had missed two consulting examiner appointments and that there was “insufficient evidence for a mental impairment” currently, in addition to no evidence of a mental impairment as of her date last insured for SSD benefits, March 31, 2009. Record at 59, 66. The plaintiff’s claims were denied. See id. at 60, 67.
As of August 15, 2012, when a second agency nonexamining consultant, Mary A. Burkhart, Ph.D., assessed the plaintiff’s claims on reconsideration of that denial, see id. at 76-80, 88-91, the plaintiff had been seen by agency examining consultant James R. Werrbach, Ph.D., who prepared a report dated August 7, 2012, see id. at 501-03. Dr. Burkhart noted that a consultative examination was required because “[t]he evidence as a whole, both medical and non-medical, is not sufficient to support a decision on the claim.” Id. at 75, 87. She indicated that, this time, the consultative examination appointment had been kept. See id.
Dr. Werrbach described his report as containing “the reasons [the plaintiff] gave for seeking disability payments, the symptoms that she suffers, a brief overview of her employment history, a brief description of her activities of daily living, a mental status assessment, diagnoses per DSM-IV, and a medical source statement.” Id. at 501. He did not indicate that he reviewed any records or interviewed anyone other than the plaintiff. See id.
Dr. Werrbach summarized the plaintiff’s report of her history, treatment, symptoms, and activities of daily living. See id. at 501-02. He then set forth what appears to be the results of his mental status examination:
[The plaintiff] was cooperative during this interviewing process. I was able to engage her in conversation and she offered adequate information to my questions. Her attire was casual but appeared to be clean and neat. She appeared to pay attention to her grooming and hygiene. [She] is a short woman with a thin build. There was nothing unusual about her posture, gait or motor activity. [She] appeared to be quite anxious during this interview. At times she was wringing her hands while talking with me. She did maintain good eye contact with me. The rate of her speech was rapid. She stated that this was so because she was so nervous being in an interview with me. The volume and fluency of her speech were within normal limits. Her speech was not marked by peculiar expressions nor was it stilted. There was nothing in this interview that suggested that [the plaintiff] suffers from hallucinations, deluded thinking or other evidence of a thought disorder. Her thought processes were sequential, clear and coherent although as stated before, she spoke very rapidly. She was oriented to time, place, person and situation. Her memory appeared to be intact. She was able to concentrate and attend to my questions appropriately. Her insight into her difficulties appeared to be fair. Her social judgment appeared to be highly compromised.
Id. at 503. Dr. Werrbach diagnosed the plaintiff with post-traumatic stress disorder, generalized anxiety disorder, social anxiety, obsessive-compulsive disorder, and alcohol dependency in sustained, full remission. See id. He concluded:
It would appear that [the plaintiff] would not have difficulty doing a work-related activity such as understanding. It would appear that her ability to do work-related activities such as memory, sustained concentration and persistence, social interaction, and adaptation to new social situations ...