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Hadley v. Berryhill

United States District Court, D. Maine

October 29, 2017

TRACI HADLEY, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          REPORT AND RECOMMENDED DECISION[1]

          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 past relevant work as a kitchen helper or, in the alternative, performing other work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that the ALJ erred in making a mental residual functional capacity (“RFC”) determination unsupported by any expert opinion of record, ignoring Global Assessment of Functioning scores, improperly rejecting the opinion of examining consultant William M. DiTullio, Ed.D., and failing to call a medical advisor to assist in inferring the onset date of her disability, pursuant to Social Security Ruling 83-20. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 11) at 4-17. Because the ALJ erred in assessing the plaintiff's mental RFC based on the raw medical evidence, and her discussion does not make clear that the error was harmless, 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. Sec'y 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 March 31, 2012, Finding 1, Record at 11; that, through her date last insured, she had severe impairments of bipolar disorder, reactive airways disease, and alcohol abuse, Finding 3, id.; that, through her date last insured, she had the RFC to perform a full range of work at all exertional levels, but with the following nonexertional limitations: she needed to avoid concentrated exposure to pulmonary irritants and extreme temperatures, she was limited in concentration, persistence, and pace with the ability to understand, remember, and carry out simple tasks, and she was further limited to object-oriented tasks with only occasional interaction with supervisors, co-workers, and the general public, Finding 5, id. at 14; that, through her date last insured, she was capable of performing past relevant work as a kitchen helper, Finding 6, id. at 21; that, in the alternative, through her date last insured, considering her age (46 years old, defined as a younger individual, on her date last insured), 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, id. at 21-22; and that she, therefore, had not been disabled at any time from August 20, 2010, her alleged onset date of disability, through March 31, 2012, her date last insured, Finding 7, id. at 23. 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. Sec'y 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. Sec'y 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. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

         The ALJ reached Step 4 and, in the alternative, Step 5 of the sequential evaluation process. At Step 4, the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. § 404.1520(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); Social Security Ruling 82-62 (“SSR 82-62”), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.

         At Step 5 of the sequential evaluation process, 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, 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. Sec'y of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

         I. Discussion

         The plaintiff filed applications for both SSD, or Title II, benefits and Supplemental Security Income (“SSI”), or Title XVI, benefits on April 12, 2013, alleging that she had been disabled since August 20, 2010, by bipolar disorder and anxiety. See Record at 99, 121. “To be eligible to receive SSD benefits [a claimant] ha[s] to have been disabled on or before [his or] her date last insured . . .; however, eligibility for SSI benefits is not dependent on insured status.” Chute v. Apfel, No. 98-417-P-C, 1999 WL 33117135, at *1 n.2 (D. Me. Nov. 22, 1999) (rec. dec., aff'd Dec. 20, 1999). Because the plaintiff's date last insured for SSD benefits was March 31, 2012, see Finding 1, Record at 11, she had to prove that she was disabled on or before that date to be entitled to SSD benefits.

         The plaintiff was found entitled to SSI benefits effective April 12, 2013. See Id. at 141-42. Accordingly, her appeal before the ALJ solely concerned her eligibility for SSD benefits. See Id. at 9.

         The record before the ALJ contained five opinions of four experts bearing on the plaintiff's mental impairments. These were, in reverse chronological order:

         1. A July 20, 2010, medical source statement of ability to do work-related activities (mental) in which examining psychological consultant William DiTullio, Ed.D., assessed the plaintiff as markedly limited in, or effectively precluded by her symptoms from performing, 13 of 20 work-related tasks, accompanied by Dr. DiTullio's July 21, 2010, report of examination. See id. at 776-80.

         2. A March 11, 2011, opinion of agency nonexamining consultant Brian Stahl, Ph.D., that the plaintiff's mental impairments were nonsevere. See id. at 88.

         3. An August 2, 2013, opinion of agency examining consultant Donna M. Gates, Ph.D., that, based on the plaintiff's presenting problems at the time of examination, “it appeared that she would have a difficult time following work rules, relating well to others, and assuming a mild level of work-related stress while completing simple instructions independently[, ]” “[s]he appeared to have inflexible problem-solving and coping skills[, ]” and “[s]he likely would have a difficult time behaving in an emotional[ly] stable manner given her depression, hypomanic features, and anxiety.” Id. at 583.

         4. An August 19, 2013, opinion of Dr. Stahl that there was insufficient evidence to assess the severity of the plaintiff's mental impairments prior to her date last insured, but that her impairments currently met the criteria of Listing 12.04 (affective disorders), Appendix 1 to Subpart P, 20 C.F.R. § 404 (the “Listings”), with moderate restriction of activities of daily living, marked difficulties in ...


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