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 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.
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).
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).
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).
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.
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.
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.
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
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.
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.”). 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.
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.
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