United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
H. Rich III United States Magistrate Judge
Supplemental Security Income (“SSI”) appeal
raises the questions of whether the administrative law judge
properly evaluated the opinion of a treating physician and
whether the Appeals Council properly decided not to consider
evidence submitted by the plaintiff after her hearing before
the administrative law judge. I recommend that the court
vacate the commissioner's decision and remand this case
for further proceedings consistent herewith.
accordance with the commissioner's sequential evaluation
process, 20 C.F.R. § 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 suffered from anxiety and
affective disorders, fibromyalgia, obesity, right shoulder
degenerative joint disease, and personality disorder,
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
2-3, Record at 16; that she had the residual functional
capacity (“RFC”) to perform light work, except
that she would require a sit/stand-at-will option, could
frequently climb ramps and stairs, balance and kneel, but
only occasionally climb ladders, ropes, and scaffolds, or
stoop, crouch or crawl, was limited to occasional overhead
reaching with her right upper extremity, could understand,
remember and carry out simple instructions, could make simple
work-related decisions, could response appropriately to
co-workers and supervisors but only occasionally to
situations involving the public, and could adapt to changes
in an ordinary work setting, Finding 4, id. at 18;
that she had no past relevant work, Finding 5, id.
at 22; that, considering her age (44 years old on the date
her application was filed, January 19, 2012), education (at
least high school), and RFC, there were jobs existing in
significant numbers in the national economy that she could
perform, Findings 6-9, id. at 22-23; and that she,
therefore, had not been disabled from January 19, 2012,
through the date of the decision, May 29, 2014, Finding 10,
id. at 24. The Appeals Council reviewed the
decision, id. at 1-3, revised the plaintiff's
RFC to the sedentary level, and otherwise upheld the
administrative law judge's decision, id. at 4-6,
making its decision the final determination of the
commissioner, 20 C.F.R. § 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. § 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 her 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).
plaintiff's “itemized statement” is presented
as a continuous narrative, with no itemized specification of
the issues that she wishes to present to the court.
Plaintiff's Itemized Statement of Errors (“Itemized
Statement”) (ECF No. 13) at 5-9. Accordingly, and
without objection from plaintiff's counsel at oral
argument, I address the issues as identified by the defendant
in her response. Defendant's Opposition to
Plaintiff's Statement of Errors
(“Opposition”) (ECF No. 17).
Dr. Kahl's Opinion
plaintiff contends that the administrative law judge
“fail[ed] to evaluate the opinion of the psychologist,
Dr. Kahl.” Itemized Statement at 5. She asserts that
the limitation stated by Dr. Kahl, a consulting examiner,
“in addition to the reasons given in the Meuse
affidavit, ” which was submitted after the hearing,
would preclude the document preparer job, id., one
of two jobs that the administrative law judge found to be
available to the plaintiff, given his RFC. Record at 23.
fact that the plaintiff does not challenge the administrative
law judge's finding that the job of table worker would be
available to her, id., means that the court need go
no further with this argument. This court has previously held
that the existence of a single suitable job in sufficient
numbers in the national economy that fits the plaintiff's
RFC is sufficient to withstand appeal. See, e.g.,
Robinson v. Astrue, Civil No. 09-629-B-W, 2010 WL
4365755, at *4 (D. Me. Oct. 27, 2010).
addition, the administrative law judge did not fail to
evaluate Dr. Kahl's opinion. He recited Dr. Kahl's
findings. Record at 21. He reports the mention of Dr.
Kahl's report by Dr. Hymoff, the medical expert who
testified at the hearing, including his testimony that
“no records gave him any idea of the level of
functioning.” Id. at 22. When the
administrative law judge expressly “adopt[ed] the
testimony of Dr. Hymoff, ” id., he necessarily
also adopted Dr. Hymoff's statement that Dr. Kahl's
report did not give the reader “any idea of the level
of functioning.” Id. The administrative law
judge did not “ignore” Dr. Kahl's report.
Itemized Statement at 5.
plaintiff makes much, id., of Dr. Kahl's
statement that her “ability to understand, remember,
and carry out one or two-step job instructions should be
inspected [sic] to be reasonably satisfactory from a
psychological and cognitive perspective[, ]” Record at
699, and the fact that the administrative law judge does not
mention it specifically. However, in this district, an
administrative law judge is not required to discuss every
item of evidence in the record. Peak v. Colvin, No.
2:15-cv-67-JHR, 2015 WL 7681256, at *4 (D. Me. Nov. 24,
2015). That rule should be particularly apt where, as here,
the omitted statement would not affect the outcome of the
plaintiff is not entitled to remand on the basis of this