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Staples v. Berryhill

United States District Court, D. Maine

March 15, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security,[1]Defendant


          John H. Rich III, United States Magistrate Judge

         This Social Security Disability (“SSD”) appeal raises the question of whether substantial evidence supports the residual functional capacity (“RFC”) assigned to the plaintiff by the administrative law judge. I conclude that it does not and, accordingly, recommend that the court vacate the commissioner’s decision and remand this case for further proceedings consistent herewith.

         In accordance with the commissioner’s sequential evaluation process, 20 C.F.R. § 404.1520; 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 September 30, 2013, Finding 1, Record at 13; that she suffered from bipolar disorder with panic and agoraphobia, bilateral plantar fasciitis, status-post fascieotomy to the right foot, degenerative joint disease and tarsal tunnel syndrome to the right foot, obesity, chronic obstructive pulmonary disease (“COPD”), and a substance addiction disorder, impairments that were severe but which, considered separately or in combination, failed to 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 13-14; that she had the RFC to perform light work, except that she could occasionally use foot controls and climb ramps and stairs, could not climb ladders, ropes, or scaffolds, could not work around dangerous equipment, temperature extremes, humidity, wetness, or concentrated environmental pollutants, could not perform tasks requiring a variety of instructions, but could understand and carry out simple, one or two-step oral or written instructions and detailed, but uninvolved, written or oral instructions involving a few concrete variables in standardized situations, could tolerate only minimal changes in the workplace setting and to her routine, could make simple work-related judgments, and could not work in crowds, but could tolerate occasional and incidental contact with the general public, Finding 5, id. at 16; that, through her date last insured, she was unable to perform any past relevant work, Finding 6, id. at 21; that, considering her age (50 years old, defined as an individual closely approaching advanced age, on her date last insured), limited education, work experience, and RFC, there were jobs existing in significant numbers in the national economy that she could perform, Findings 7-10, id.; and that she, therefore, had not been disabled from February 29, 2011, the alleged date of onset of disability, through the date last insured, September 30, 2013, Finding 11, id. at 23. The Appeals Council declined to review the decision, id. at 1-4, making the decision the final determination of the commissioner, 20 C.F.R. § 404.981; 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); 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), 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).

         I. Discussion

         The plaintiff seeks remand on the bases that, in determining both her physical and mental RFC, the administrative law judge improperly (i) relied in part on the opinions of agency nonexamining consultants that she acknowledged were superseded by material new evidence, (ii) rejected the opinions of treating physician Karen Lawes, M.D., and (iii) filled the void by construing raw medical evidence, as a result of which neither component of the RFC determination was supported by substantial evidence. See Plaintiff’s Itemized Statement of Errors (“Statement of Errors”) (ECF No. 11) at 4-15.

         I conclude that the administrative law judge permissibly accorded little weight to the Lawes opinions but that her mental and physical RFC determinations were neither supported by expert medical opinion nor the product of a permissible commonsense judgment. See Gordils v. Secretary of Health & Human Servs., 921 F.2d 327, 329 (1st Cir. 1990) (Although an administrative law judge is not precluded from “rendering common-sense judgments about functional capacity based on medical findings,” he “is not qualified to assess residual functional capacity based on a bare medical record.”). Because the administrative law judge expressly gave only “little” or “some” weight to agency nonexamining consultants’ opinions on the basis that evidence received at the hearing level demonstrated that the plaintiff had greater restrictions, I reject the commissioner’s argument, see Defendant’s Opposition to Plaintiff’s Statement of Errors (“Opposition”) (ECF No. 13) at 11, 14-16, that she assessed an RFC more favorable than the evidence supports and/or gave the plaintiff the benefit of the doubt, rendering any Gordils error harmless.

         A. Mental RFC

         Adjudicators must follow a prescribed technique in assessing whether, at Step 2, a claimant has medically determinable mental impairment(s); if so, whether, at Steps 2 and 3, such impairments are severe and meet or equal the criteria of any of the Listings; and, if one proceeds to Steps 4 and 5, the degree to which such impairments impact RFC. See 20 C.F.R. § 404.1520a.

         At Step 2, the severity of a mental impairment is assessed on the basis of a rating of the degree of limitation in four broad functional areas: (i) activities of daily living, (ii) social functioning, (iii) concentration, persistence, or pace, and (iv) episodes of decompensation. See Id. If a mental impairment is judged to be severe but not to meet or equal a Listing, assessment of a claimant’s mental RFC is required; if it is judged nonsevere, no mental RFC assessment need be made. See id.[3]

         The record contains three expert opinions bearing on the severity of the plaintiff’s mental impairments, none of which constitutes an RFC opinion in the sense that it sets forth specific capacities or limitations. Two agency nonexamining consultants, Thomas Knox, Ph.D., in an opinion dated December 28, 2012, and Brian Stahl, Ph.D., in an opinion dated June 7, 2013, deemed the plaintiff’s mental impairments nonsevere, finding only mild limitations in the first three broad functional areas and no episodes of decompensation. See Record at 106, 120. As a result, they made no assessment of the plaintiff’s mental RFC. See id. at 106-07, 120-21. In an opinion dated July 18, 2014, the plaintiff’s treating physician, Dr. Lawes, indicated that the plaintiff’s mental impairments markedly limited or effectively precluded a number of work-related functions, including the abilities to maintain attention and concentration sufficient to perform work tasks throughout an eight-hour workday, sustain an ordinary routine without special supervision, complete a normal workday and workweek without interruptions from psychologically-based symptoms, and interact appropriately with the general public. See id. at 1174-75.

         The administrative law judge gave “little weight” to the Knox and Stahl opinions, explaining that “[e]vidence received at the hearing level demonstrates that the [plaintiff’s] mental impairments are severe and result in moderate difficulties in maintaining social functioning and concentration, persistence or pace.” Id. at 20.

         She also accorded “little weight” to Dr. Lawes’ opinion, “as her treatment records consistently noted the [plaintiff] as alert and in a euthymic mood.” Id. (citations omitted). In addition, in the context of addressing Dr. Lawes’ physical RFC opinion, she made an observation that pertains to her opinion on the severity of the plaintiff’s mental impairments: that Dr. Lawes had noted that her treatment relationship with the plaintiff was limited to four office visits. See id.

         In doing so, she alluded to the following handwritten statement by Dr. Lawes at the conclusion of her opinions:

[The plaintiff] is somewhat new to me but has already been in 6 times since establishing 4 months ago. She is obese and has severe asthma that restrict her physically, as well as chronic pain. She also has a psychiatrist who manages her longstanding severe mental health issues – which also limit her ability to work.

Id. at 1175.[4]

         An administrative law judge is required to supply good reasons for the weight assigned to a treating source’s opinion. See, e.g., 20 C.F.R. § 404.1527(c) & (c)(2) (“Regardless of its source, we will evaluate every medical opinion we receive. . . . We will always give good reasons in our notice of determination or decision for the weight we give your treating source’s opinion.”). The administrative law judge did so here, identifying inconsistencies between Dr. Lawes’ notes and her opinion and alluding to Dr. Lawes’ acknowledgement that the plaintiff was “somewhat new” to her and that the plaintiff’s psychiatrist, rather than Dr. Lawes, managed her mental health issues. See id. § 404.1527(c) (factors relevant to the assessment of a treating source’s medical opinion are: (i) examining relationship, (ii) treatment relationship, including length of the treatment relationship, frequency of examination, and nature and extent of the treatment relationship, (iii) supportability – i.e., adequacy of explanation for the opinion, (iv) consistency with the record as a whole, (v) specialization – i.e., whether the opinion relates to the source’s specialty, and (vi) other factors that tend to support or contradict the opinion); Newcomb v. Colvin, No. 2:15-cv-463-DBH, 2016 WL 3962843, at *10 (D. Me. July 22, ...

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