United States District Court, D. Maine
JEFFREY E. FERGUSON, Plaintiff
NANCY A. BERRYHILL, Acting Commissioner of Social Security,  Defendant
REPORT AND RECOMMENDED DECISION
H. Rich III United States Magistrate Judge.
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
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).
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 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.
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).
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.
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.
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.
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
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.
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.
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).
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)).
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. ...