United States District Court, D. Maine
MEMORANDUM DECISION 
H. Rich III, United States Magistrate Judge.
Social Security Disability (“SSD”) and
Supplemental Security Income (“SSI”) appeal
raises the questions of whether the administrative law judge
wrongly ignored a finding of the state Department of Health
and Human Services and whether the residual functional
capacity (“RFC”) assigned to the plaintiff was
fatally flawed. I affirm the commissioner's decision.
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 that the plaintiff suffered
from chronic obstructive pulmonary disorder
(“COPD”), history of head trauma, right shoulder
injury, and degenerative disc disease, 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, Record
at 13-14; that he had the RFC to perform light work, except
that he had limited push and pull with the right upper
extremity, could occasionally climb ramps and stairs but
never climb ladders, ropes, or scaffolds, could occasionally
stoop, kneel, and crouch but never crawl, could occasionally
reach overhead and to the front and/or sides with the right
upper extremity, could not constantly reach on the right
side, should avoid concentrated exposure to cold, humidity,
and heat, and should avoid even moderate exposure to fumes,
odors, dust, gasses, and poor ventilation as well as hazards,
Finding 5, id. at 15; that he was unable to perform
any past relevant work, Finding 6, id. 19; that,
considering his age (44 years old on his alleged disability
onset date, August 31, 2011, at least high school education,
work experience, and RFC, there were jobs existing in
significant numbers in the national economy that he could
perform, Findings 7-10, id. at 20; and that he,
therefore, had not been disabled from his alleged disability
onset date through the date of the decision, March 28, 2014,
Finding 11, id. at 21. 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).
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).
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. §§
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).
DHHS Disability Finding
plaintiff faults the administrative law judge for failing to
mention a disability finding of the Maine Department of
Health and Human Services which he says “was e-filed
prior to the decision and was duly included in the
record.” Plaintiff's Itemized Statement of Errors
(“Itemized Statement”) (ECF No. 13) at 5.
to be considered by the administrative law judge must be
submitted no later than five business days before the date of
the hearing. 20 C.F.R. § 405.331(a). The plaintiff was
informed of this requirement in the notice of hearing that
was sent to him. Record at 153. The hearing in this case was
held on February 6, 2014. Record at 36. The document in
question is dated February 26, 2014, id. at 35, and
is stamped “Mar 4 2014” at the top of the first
page. Id. at 27. Either date is after the hearing.
The plaintiff's attorney at the hearing did not request
leave to submit any additional evidence. Record at 39, 53,
fact that this document was added to the administrative
record on March 26, 2014, was established when I granted (ECF
No. 20) the plaintiff's motion to correct the record (ECF
No. 18 and ECF No. 18-1), without objection by the defendant
(ECF No. 19). The administrative law judge's opinion is
dated March 28, 2014. Record at 21.
is no indication in the record that the submission of this
document on March 26, 2014, was accompanied by any attempt to
demonstrate that the requirements of 20 C.F.R. §
405.331(c) for submission of additional evidence after the
hearing and before the hearing decision was issued. An
applicant for benefits who wishes to submit additional
evidence during this period of time must meet the following
[T]he administrative law judge will accept the evidence if
you show that there is a reasonable possibility that the
evidence, alone or when considered with the other evidence of
record, would affect the outcome of your claim, and:
(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic
limitation(s) that prevented you from submitting the ...