United States District Court, D. Maine
REPORT AND RECOMMENDED
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 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.
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).
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).
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.
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).
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.
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.
record before the ALJ contained five opinions of four experts
bearing on the plaintiff's mental impairments. These
were, in reverse chronological order:
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.
March 11, 2011, opinion of agency nonexamining consultant
Brian Stahl, Ph.D., that the plaintiff's mental
impairments were nonsevere. See id. at 88.
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.
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 ...