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Coyne v. Berryhyill

United States District Court, D. Maine

October 1, 2017

KEVIN COYNE, Plaintiff
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant


          John H. Rich III, United States Magistrate Judge

         This 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 the ALJ erred in (i) interpreting raw medical evidence to determine his mental residual functional capacity (“RFC”), (ii) rejecting the opinions of treating psychiatrist Ami Lim, M.D., and examining psychologist Kenneth Freundlich, Ph.D., and (iii) misconstruing progress notes of treating psychiatrist Peter Wilk, M.D., and ignoring his opinions expressed in disability insurance questionnaires that she admitted into evidence. See Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 10) at 2-7. The first point is dispositive in the plaintiff's favor and, on that basis, I recommend that the court vacate the commissioner's decision and remand this case for further proceedings consistent herewith. I do not reach the plaintiff's remaining points of error.

         Pursuant 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 met the insured status requirements of the Social Security Act through December 31, 2016, Finding 1, Record at 13; that he had severe impairments of an anxiety disorder and a depressive 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: that he had a limitation in concentration, persistence, or 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 14; that, considering his age (44 years old, defined as a younger individual, on his alleged disability onset date, December 29, 2011), 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 he could perform, Findings 7-10, id. at 19-20; and that he, therefore, had not been disabled from December 29, 2011, through the date of the decision, August 10, 2015, Finding 11, id. at 20-21. 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).

         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 ALJ 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); 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

         As the plaintiff points out, see Statement of Errors at 2-7, the ALJ's finding that he had the above mental RFC is unsupported by any expert opinion of record. She did not discuss the May 23, 2013, opinion of agency nonexamining consultant Ellen Gara, M.D., on initial review of the plaintiff's SSD application that, although he had moderate limitations in activities of daily living, there was otherwise insufficient evidence to review his claim. See Record at 19, 58. She noted that, on reconsideration of the plaintiff's claim on January 17, 2014, agency nonexamining consultant Brian Stahl, Ph.D., found insufficient evidence to assess the claim in any respect. See id. at 19, 69-70. However, she stated that she found that there was “significant evidence to make a determination.” Id. at 19.

         She stated that she did not afford great weight to the March 2013 opinion of Dr. Lim that the plaintiff was unable to sustain attention and focus, unable to work with others, could not interact with the public, was unable to respond appropriately to changes in the workplace, was markedly impaired in concentration, persistence, and pace, and had continual episodes of decompensation, explaining that the opinion was “not supported by, or consistent with, the longitudinal record.” Id. at 18-19.

         She did not explain the weight given to Dr. Freundlich's June 2012 opinion that the plaintiff continued to exhibit significant psychological and cognitive impairments that prevented him from returning to work at that time. See id. at 18. However, she seemingly rejected it, stating that it was “not consistent with, and supported by, the longitudinal record.” Id. She explained that (i) the Freundlich assessment appeared to be “based upon the [plaintiff's] subjective complaints over objective clinical findings[, ]” (ii) Dr. Freundlich's mental status examinations revealed no significant abnormalities, and (iii) Dr. Freundlich had noted that the plaintiff's history of alcohol abuse could be a factor in his presentation. Id.

         She made no mention of Dr. Wilk's responses to disability questionnaires spanning the period from September 23, 2014, to June 4, 2015, in which Dr. Wilk continually expressed the opinion that the plaintiff was unable to return to work. See id. at 18-19, 26-30. He stated, for example, on June 4, 2015: “If forced to engage in tasks when he is anxious, his anxiety ↑↑.” Id. at 30. He added: “My focus is on helping him have improved health quality of life within his fairly constricted range.” Id.

         The ALJ described her RFC finding as “supported by the diagnostic testing, clinical signs and examinations of record, the [plaintiff's] treatment history, and his activities of daily living.” Id. at 19.

         The commissioner does not dispute that the ALJ crafted a mental RFC absent reliance on expert opinion. See Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 12) at 5-7. However, she contends that the ALJ made a permissible commonsense judgment based on the totality of that evidence. See id.; see also, e.g., 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, ” she “is not qualified to assess residual functional capacity based on a bare medical record.”).[2] She cites Davis v. Colvin, No. 1:14-cv-343-JHR, 2015 WL 3937423, at *2 n.2 (D. Me. June 25, 2015), for the proposition that a physical RFC determination need not be buttressed by the opinion of a medical expert, and Soto v. Colvin, No. 2:14-cv-28-JHR, 2015 WL 58401, at *3 (D. Me. Jan. 5, 2015), for the proposition that remand is unwarranted when an ALJ has adequately explained a mental RFC finding. See Opposition at 6-7. Both cases are distinguishable.

         The quotation from Davis on which the commissioner relies on its face addresses only physical RFC determinations. See Opposition at 6; Davis, 2015 WL 3937423, at *2 n.2. In Davis, the court held remand unwarranted with respect to the ALJ's mental RFC finding after it rebuffed the claimant's argument that, in making that finding, the ALJ had rejected every expert opinion of record. See id. at *5-*6. The court noted, for example, that the ALJ's mental RFC determination was consistent with the opinion of a psychologist-reviewer that the claimant could perform work involving only simple tasks and changes in routine and only small groups of coworkers. See id. at *6.

         In Soto, the court rejected a claimant's bid for remand on the basis that an ALJ had impermissibly interpreted raw medical evidence to determine his mental RFC when that finding was “more favorable than the evidence would otherwise support.” Soto, 2015 WL 58401, at *3 (footnote omitted). The Soto court distinguished the then-recently decided case of Bernier v. Colvin, No. 1:14-cv-29-JHR, 2015 WL 46062 (D. Me. Jan. 2, 2015), in which the ...

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