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Ferguson v. Berryhill

United States District Court, D. Maine

June 4, 2017

JEFFREY E. FERGUSON, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant

          REPORT AND RECOMMENDED DECISION [2]

          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 returning to his past relevant work as a bagger or, in the alternative, performing other work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that the administrative law judge (i) failed to find his left eye amblyopia a severe impairment at Step 2, (ii) ignored opinion evidence from Rose Mary Porter-Fetterman, M.Ed., Jason Merrin, Ph.D., Psy.D., Ryan C. Gallant, MOT, OTR/L, and state caseworker Anne Wheeler, (iii) erred in assessing his credibility, and, (iv) as a result of those errors, arrived at a residual functional capacity (“RFC”) determination unsupported by substantial evidence. See Plaintiff's Statement of Errors (“Statement of Errors”) (ECF No. 11) at 4-20. I conclude that the administrative law judge failed to consider, let alone address, evidence that the plaintiff's restrictions were greater than those she assessed, calling into question her credibility/RFC determinations and warranting remand. Accordingly, I recommend that the court 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 meets the insured status requirements of the Social Security Act through December 31, 2018, Finding 1, Record at 60; that he had severe impairments of learning disorder and anxiety disorder, Finding 3, id.; that he had the RFC to perform a full range of work at all exertional levels but with the following nonexertional limitations: he had a limitation in concentration, persistence, and pace with the ability to understand, remember, and carry out simple tasks and was limited to object-oriented tasks with only occasional superficial work-related interactions with supervisors, coworkers, and the general public, Finding 5, id. at 62; that he was capable of performing past relevant work as a bagger, which did not require the performance of work-related activities precluded by his RFC, Finding 6, id. at 68; and, in the alternative, considering his age (41 years old, defined as a younger individual, on his amended alleged disability onset date, November 8, 2013), education (at least high school), work experience (transferability of skills immaterial), and RFC, there were other jobs existing in significant numbers in the national economy that he could perform, id. at 69; and that he, therefore, had not been disabled from November 8, 2013, through the date of the decision, September 25, 2015, Finding 7, id. at 70. 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, 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 4 of the sequential evaluation process, at which stage the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). At this step, the commissioner must make findings of the plaintiff's RFC and the physical and mental demands of past work and determine whether the plaintiff's RFC would permit performance of that work. 20 C.F.R. §§ 404.1520(f), 416.920(f); Social Security Ruling 82-62 (“SSR 82-62”), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.

         In the alternative, 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. §§ 404.1520(g), 416.920(g); Bowen, 482 U.S. at 146 n.5; 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 worked part-time for Hannaford Brothers (“Hannaford”), initially as a bagger and then as a cashier, for 14 and a half years, quitting on October 25, 2013, as a result of anxiety caused by increasing conflict with a difficult supervisor who had overseen his work since 2005. See Record at 93-94, 104-05. He alleged disability beginning on November 8, 2013. See id. at 58. He testified that he had received vocational rehabilitation support during the entire time he worked at Hannaford and “had a job coach who would come in and help me deal with issues, and I had quite a lot of issues.” Id. at 93. He explained that his job coach would come into Hannaford to advocate for him with the supervisor because he was too intimidated and nervous to speak with her. See id. at 105-06. He testified that he would not have been able to remain at Hannaford as long as he did without the job coach's assistance. See id. at 105.

         The plaintiff further testified that Hannaford received a tax credit for hiring him and that he was not able to learn product codes as quickly as other cashiers. See id. at 106-107. He testified that it took at least “a few months” longer for him to learn those codes than others, “because the more I entered it in the more they would get in there because a lot of repetition's good for me because I can get it in my brain and understand it and remember it.” Id. at 107.

         The administrative law judge stated that she “considered but granted little probative weight to the [plaintiff's] testimony.” Id. at 67. She found, inter alia, that he had “been able to work with a learning disorder for many years without significant difficulty[, ]” “he apparently was able to deal with a particular manager since 2005 despite his difficulties[, ]” “[t]he record indicates that vocational rehabilitation was having a difficult time placing [him] due to his self-imposed restrictions for limited daytime hours, close geographical proximity, certain tasks, and non-stressful positions[, ]” and he “testified that he had a job coach when he was working, but the record does not reflect this allegation.” Id. at 66.

         She stated that, in assessing the plaintiff's RFC, she gave “substantial evidentiary weight” to the opinions of agency examining consultant Edward Quinn, Ph.D., dated February 11, 2014, and agency nonexamining consultants Brian Stahl, Ph.D., and Leigh Haskell, Ph.D., dated February 24, 2014, and July 24, 2014, respectively, but “minimal weight” to a mental impairment questionnaire of treating counselor Sean Douglas, LCSW, dated August 18, 2015. See id. at 68, 185-87, 201-03, 906-09, 956-60. She summarized:

The [plaintiff] has received minimal conservative and routine treatment. Clinical findings do not suggest a more restrictive functional capacity than that assessed in this decision. The [plaintiff's] activities of daily living belie the severity of his impairments. [He] has received vocational rehabilitation services, but the record suggests self-imposed resistance to opportunities for other employment. The opinions that have been afforded substantial weight are consistent with the record. The [plaintiff's] allegations are not entirely credible because they are not supported by the evidence of record to the extent they suggest a more restrictive [RFC] than found above.

Id. at 68.

         As the plaintiff points out, see Statement of Errors at 4-5, 8-17, the administrative law judge never mentioned the July 1998 psychological evaluation of Porter-Fetterman, a licensed psychological examiner and certified school psychological service provider, the October 19, 2011, statement of caseworker Wheeler, the August 3, 2011, evaluation of occupational therapist Gallant, or the February 1, 2012, neuropsychological evaluation of Dr. Merrin, a licensed psychologist, see id. at 60-70, 739, 764-73, 774-84, 815-18.

         The plaintiff cites Bickford v. Barnhart, 242 F.Supp.2d 39, 42 (D. Me. 2002), for the proposition that the failure to mention these evaluations and the Wheeler report warrants remand. See Statement of Errors at 8; Bickford, 242 F.Supp.2d at 42 (because administrative law judge did not mention Veterans Administration (“VA”) records that contained medical opinions supporting VA physicians' conclusion that he suffered a 60 percent disability and was unemployable due to back pain, “it is not possible to determine whether the administrative law judge complied with 20 C.F.R. § 404.1527(d), which requires the commissioner to evaluate every medical opinion received”; noting that the VA records were “not necessarily consistent on their face with a functional capacity for light work[, ]” which the administrative law judge had found the claimant capable of performing).

         The commissioner concedes that, although an administrative law judge need only develop a medical history for the 12 months prior to a claimant's alleged onset date of disability, he or she must consider all of the evidence in the record. See Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 15) at 6 (citing 42 U.S.C. § 423(d)(5)(B)).

         However, she contends that the administrative law judge did consider the evidence at issue, as demonstrated by its inclusion in the List of Exhibits appended to the decision and her reference to Exhibit 18E, containing the Merrin and Gallant evaluations. See Opposition at 4-5, 8-10, 13, (citing Social Security Administration, Hearings, Appeals, and Litigation Law Manual (HALLEX) § I-2-1-20; Chapman v. ...


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