United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION 
H. Rich III United States Magistrate Judge
Social Security Disability (“SSD”) appeal raises
the question of whether the administrative law judge
(“ALJ”) supportably found the plaintiff capable
of performing work existing in significant numbers in the
national economy. The plaintiff seeks remand on the bases
that (i) the ALJ erred in his assessment of the medical
evidence before him, (ii) substantial evidence does not
support his residual functional capacity (“RFC”)
assessment, and (iii) substantial evidence does not support
his Step 5 finding. See Plaintiff's Itemized
Statement of Errors (“Statement of Errors”) (ECF
No. 13) at 2-9. I find no error and, accordingly,
recommend that the court affirm the commissioner's
decision at issue is the second pertaining to the
Plaintiff's SSD application filed on January 25, 2011.
See Record at 113. Following an unfavorable decision
by the ALJ on March 22, 2013, see id. at 128-29, the
plaintiff sought review by the Appeals Council, which vacated
that decision and remanded the case to the ALJ for further
evaluation of the nontreating source opinion of Jonathan M.
Freedman, Ph.D. See id. at 135. The ALJ held a
second hearing on February 26, 2015, during which he took
testimony from the plaintiff, a vocational expert, and a
psychological medical expert, James M. Claiborn, Ph.D.
See id. at 12, 26-27. On April 18, 2015, he issued
the decision here at issue. See id. at 12-20.
to 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
ALJ found, in relevant part, that the plaintiff last met the
insured status requirements of the Social Security Act on
December 31, 2014, Finding 1, Record at 14; that she had
severe impairments of depression, not otherwise specified
(“NOS”), and agoraphobia with panic, Finding 3,
id; that she had the RFC to perform a full range of
work at all exertional levels, but with the nonexertional
limitations that she could understand and remember simple
instructions, accomplish simple tasks on a consistent
schedule to complete a normal workday and workweek, interact
appropriately with small groups of coworkers, and tolerate
occasional interaction with supervisors, but needed to avoid
interaction with the general public, could only occasionally
perform collaborative tasks, as she was better suited for
independent work, and could adapt to occasional routine
changes in the workplace, Finding 5, id. at 16;
that, considering her age (52 years old, defined as an
individual closely approaching advanced age, on her date last
insured, December 31, 2014), education (at least high
school), work experience (transferability of skills
immaterial), and RFC, there were jobs existing in significant
numbers in the national economy that she could perform,
Findings 7-10, id. at 19; and that she, therefore,
had not been disabled from December 8, 2010, her alleged
onset date of disability, through December 31, 2014, her date
last insured, Finding 11, id. at 20. 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; 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); 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. §
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).
The ALJ's Assessment of Expert Opinions
plaintiff first argues that the ALJ failed to properly
evaluate the opinions of three sources: treating Nurse
Practitioner (“NP”) Annette M. Hatch-Clein, Dr.
Claiborn, and Jonathan Siegel, Ph.D., the Plaintiff's
consultative examiner. See Statement of Errors at
2-5. For the reasons detailed below, these arguments do not
record before the ALJ contained the treatment notes of NP
Hatch-Clein as well as a Medical Source Statement of Ability
To Do Work-Related Activities (Mental) form that she
completed on August 6, 2012 (“Hatch-Clein
Opinion”). See Record at 500-01. The plaintiff
complains that the ALJ “completely ignored” the
Hatch-Clein Opinion. See Statement of Errors at 3.
The commissioner admits that the ALJ did not discuss the
opinion but asserts that his handling of it comported with
the requirements of Social Security Ruling 06-03p (“SSR
06-03p”). See Defendant's Opposition to
Plaintiff's Itemized Statement of Errors
(“Opposition”) (ECF No. 17) at 2-5. I agree.
form that NP Hatch-Clein filled out listed 20 mental
abilities bearing on an individual's ability to do
work-related activities on a sustained basis. See
Record at 500-01. She checked boxes indicating that the
plaintiff was markedly limited in, or effectively precluded
from performing, 17 of them. See id. She left blank
the section of the form that requested “a diagnosis and
a brief indication of what medical or clinical findings
support this assessment[.]” Id. at 501.
a nurse practitioner, does not qualify as an
“acceptable medical source” for Social Security
purposes, see 20 C.F.R. §§ 404.1513(a),
416.913(a) (versions in effect prior to Jan. 18, 2017).
“[O]nly ‘acceptable medical sources' can be
considered treating sources, as defined in 20 CFR 404.1502
and 416.902, whose medical opinions may be entitled to
controlling weight.” SSR 06-03p, reprinted in
West's Social Security Reporting Service Rulings
1983-1991 (Supp. 2016), at 329. Yet, evidence from
“other sources” such as Hatch-Clein may not be
With the growth of managed health care in recent years and
the emphasis on containing medical costs, medical sources who
are not ‘acceptable medical sources, ' such as
nurse practitioners, physician assistants, and licensed
clinical social workers, have increasingly assumed a greater
percentage of the treatment and evaluation functions
previously handled primarily by physicians and psychologists.
Opinions from these medical sources, who are not technically
deemed ‘acceptable medical sources' under our
rules, are important and should be evaluated on key issues
such as impairment severity and functional effects, along
with the other relevant evidence in the file.
Id. at 330. “The weight to which such evidence
may be entitled will vary according to the particular facts
of the case, the source of the opinion, including that
source's qualifications, the issue(s) that the opinion is
about, and many other factors[.]” Id. at 331.
Although there is a distinction between what an adjudicator
must consider and what the adjudicator must explain in the
disability determination or decision, the adjudicator
generally should explain the weight given to opinions from
these ‘other sources, ' or otherwise ensure that
the discussion of the evidence in the determination or
decision allows a claimant or subsequent reviewer to follow
the adjudicator's reasoning, when such opinions may have
an effect on the outcome of the case.
Id. at 333.
court has held that “a decision complies with the
requirements of SSR 06-03p when it makes clear that, had the
administrative law judge expressly discussed the opinion of
an ‘other source, ' he or she would have rejected
it.” Robshaw v. Colvin, No. ...