United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
C. Nivison, U.S. Magistrate Judge.
Plaintiff George Hamm's application for disability
insurance benefits under Title II and supplemental security
income benefits under Title XVI of the Social Security Act,
Defendant, the Social Security Administration Commissioner,
found that Plaintiff has severe impairments, but retains the
functional capacity to perform substantial gainful activity.
Defendant, therefore, denied Plaintiff's request for
disability benefits. Plaintiff filed this action for judicial
review of Defendant's final administrative decision
pursuant to 42 U.S.C. § 405(g).
a review of the record, and after consideration of the
parties' arguments, I recommend the Court vacate the
administrative decision and remand for further proceedings.
Commissioner's final decision is the October 15, 2015,
decision of the Administrative Law Judge. (ALJ Decision, ECF
No. 9-2.) The administrative record has been supplemented, by
order of the Appeals Council, to include a Department of
Veterans Affairs rating decision issued on October 27, 2015.
(Notice of Appeals Council Action, ECF No. 9-2, R. 2.)
ALJ's decision tracks the familiar five-step sequential
evaluation process for analyzing social security disability
claims, 20 C.F.R. §§ 404.1520, 416.920. The ALJ
found that Plaintiff has severe, but non-listing-level
impairments consisting of mood disorder, anxiety disorder,
and history of alcohol abuse. (Id. ¶¶ 3 -
4, R. 17 - 19.) The ALJ further found that despite his
impairments, Plaintiff has no exertional limitation, can
perform simple and moderately complex tasks, such as those
found in semi-skilled work, and can tolerate occasional
superficial contact with the public. (Id. ¶ 5,
R. 19.) In the course of her review of the record, the ALJ
considered a Department of Veterans Affairs determination
that Plaintiff has a service-related, 70 percent disability
rating, but concluded that the VA determination was not
persuasive evidence that Plaintiff is disabled for purposes
of social security. (Id., R. 22.) Based on her
residual functional capacity findings and testimony from a
vocational expert, the ALJ determined that Plaintiff is not
disabled because he retains the capacity to perform work
existing in substantial numbers in the national economy,
including such representative occupations as hand packer,
janitor, and office cleaner. (Id. ¶¶ 10 -
11, R. 23.)
must affirm the administrative decision provided the correct
legal standards were applied and provided the decision is
supported by substantial evidence. This is so even if the
record contains evidence capable of supporting an alternative
outcome. Manso-Pizarro v. Sec'y of HHS, 76 F.3d
15, 16 (1st Cir. 1996) (per curiam); Rodriguez Pagan v.
Sec'y of HHS, 819 F.2d 1, 3 (1st Cir. 1987).
Substantial evidence is evidence that a reasonable mind might
accept as adequate to support a finding. Richardson v.
Perales, 402 U.S. 389, 401 (1971); Rodriguez v.
Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981).
“The ALJ's findings of fact are conclusive when
supported by substantial evidence, but they are not
conclusive when derived by ignoring evidence, misapplying the
law, or judging matters entrusted to experts.”
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).
contends the ALJ erred because she “essentially ignored
the medical evidence supporting the VA findings, ”
specifically the “mental disorders examination report
completed by Dr. Kimball.” (Statement of Errors at 3,
ECF No. 15, referencing Ex. 6F, R. 436 - 42.) Plaintiff
further argues the ALJ's residual functional capacity
(RFC) assessment cannot be reconciled with the medical
opinion evidence of record, including the opinions of the
Disability Determination Services reviewing psychologists.
(Id. at 4, 9 - 11.) In addition, Plaintiff argues
that the VA rating decision presented to and considered by
the Appeals Council should have prompted the Appeals Council
to remand the matter for further administrative proceedings.
(Id. at 5 - 7.)
initial Disability Determination Services determination
relied on the findings of David Houston, Ph.D., to support
certain mental residual functional capacity findings. The
determination reflects that Dr. Houston considered VA records
generated through December 4, 2013. (R. 62.) Similarly, the
reconsideration decision relied on Thomas Knox, Ph.D., to
support certain mental residual functional capacity findings.
The decision reflects that the record contained, at that
time, VA records generated through August 24, 2014. (R. 87.)
August 24, 2014, the VA had not issued either of its rating
decisions. The rating decisions are based primarily on VA
progress notes found in the record at exhibit 6F, in
particular the March 25, 2015, consultative examination
report of Kerry Kimball, Ph.D., which report apparently in
part informed the VA rating decisions. (R. 436.) Dr. Houston
and Dr. Knox thus did not have the opportunity to review the
VA ratings and the records upon which the ratings were based.
A review of the more recent records and the VA disability
rating decisions suggests that the more recent records and
decisions are not simply cumulative of the records reviewed
and relied upon by Drs. Houston and Knox.
decision, the ALJ discussed the VA decision dated April 8,
2015. (Rating Decision, Ex. 19E, ECF No. 9-6; see
also Apr. 15, 2015, VA Letter to George Hamm, Ex. 5D,
ECF No. 9-5.) The VA assigned a 70 percent disability rating
to Plaintiff's symptoms of depression, anxiety, and mood
disorder. The ALJ was not persuaded that the VA rating
established disability for social security purposes because
the VA service-related disability standards do not govern a
social security disability determination. (ALJ Decision, R.
22.) The ALJ also noted that Plaintiff did not testify to
some of the more serious symptoms he reported to the VA,
including suicidal ideation. (R. 20 - 21.)
the ALJ hearing, Plaintiff received another rating decision
from the VA, dated October 27, 2015. (ECF No.
15-1.) In its report, the VA continued the 70
percent disability finding based on Plaintiff's
psychological condition. (Id. at 3.) Plaintiff
submitted the VA's determination to the Appeals Council,
but the Appeals Council found that the evidence did not
support a reconsideration of the ALJ's decision. (R. 2.)
In part, the Appeals Council found that the VA ...