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Vallier v. Berryhill

United States District Court, D. Maine

November 26, 2017

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 basis that the ALJ erred at Steps 2, 3, and 4 in determining the nature and severity of her mental impairments and her mental residual functional capacity (“RFC”) as of her date last insured. See Plaintiff's Statement of Errors (“Statement of Errors”) (ECF No. 11) at 5-17. I agree that remand is warranted because of the ALJ's error in assessing the plaintiff's mental RFC at Step 4, which in turn undermined her conclusion that the plaintiff could perform other work existing in significant numbers in the national economy. 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 alternative arguments that remand is warranted on the basis of errors at Steps 2 and 3, including the ALJ's asserted wrongful rejection of the opinions of treating nurse practitioner (“NP”) Donna Huff, PMHNP, CS, ANP. See id. at 6-13.[2]

         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 December 31, 2013, Finding 1, Record at 23; that, through her date last insured, she had severe impairments of disorder of the left knee requiring surgery and an additional procedure before the relevant time “with residuals, ” an affective disorder, and obesity, Finding 3, id.; that, through her date last insured, she retained the RFC to perform medium work as defined in 20 C.F.R. § 404.1567(c), except that she could sit for up to six hours, stand/walk for up to four hours at a time but would need a sit/stand option for one to two minutes every hour, could rarely kneel, crouch, or crawl, could not climb ladders, ropes, or scaffolds or be exposed to hazards, and was limited to work that was simple and repetitive, could not work with the public, although she could work with co-workers and respond appropriately to supervision, and could adapt to routine changes in the workplace, Finding 5, id. at 26; that, through her date last insured, considering her age (29 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 have performed, Findings 7-10, id. at 32; and that she, therefore, had not been disabled from January 1, 2012, her alleged onset date of disability, through December 31, 2013, her date last insured, Finding 11, id. at 34. 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 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 her 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. Sec'y of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

         I. Discussion

         In this unusual case, the commissioner recalculated the plaintiff's date last insured for benefits after her SSD application had already been reviewed initially and on reconsideration by agency nonexamining consultants. See Record at 43-44, 46, 127, 137. On initial review on October 29, 2013, and reconsideration on April 29, 2014, both Brian Stahl, Ph.D., and David R. Houston, Ph.D., concluded that there was insufficient evidence to assess the plaintiff's mental impairments for the then-relevant period, from June 30, 2007, her alleged onset date of disability, through September 30, 2010, her date last insured for SSD benefits. See id. at 130-31, 144-45.

         Prior the plaintiff's hearing before the ALJ on December 10, 2015, the commissioner recalculated her date last insured to December 31, 2013, see id. at 325, following which the plaintiff amended her alleged onset date of disability to January 1, 2012, see id. at 45. The plaintiff submitted evidence both predating and postdating her new date last insured that was unseen by Drs. Stahl and Houston, see Statement of Errors at 3, including notes of an inpatient stay at a mental-health crisis stabilization unit from May 21-26, 2013, see, e.g., Record at 636-38, mental-health counseling by Ann Morgan, LCPC, CCS, from May 30, 2013, through May 1, 2014, see, e.g., id. at 774-75, and mental-health treatment by NP Huff and Maryanne Barrows, MHRT-C, in 2015, see, e.g., id. at 1250-58, 1379, 1432, 1780-86, as well as a report of a neuropsychological evaluation dated May 24, 2002, by James D. Thomas, Ph.D. (Exh. 20F), see id. at 1006-20, a psychological testing report dated May 16, 2014, by Richard Thomas, Ph.D. (Exh. 17F), see id. at 766-72, a December 24, 2014, letter To Whom It May Concern from NP Huff (Exh. 22F), see id. at 1151, NP Huff's responses to a mental impairment questionnaire dated November 18, 2015 (Exh. 33F), see id. at 1440-46, and a letter from NP Huff to the plaintiff's attorney dated November 18, 2015 (Exh. 34F), see id. at 1447-48.[3]

         With respect to the opinion evidence of record, the ALJ stated that she gave “some weight” to the Houston opinion that there was insufficient evidence of a mental impairment before the plaintiff's date last insured, adding that she “agree[d] with this finding and accord[ed] his opinion great weight.” Id. at 31. She gave “no weight” to NP Huff's 2014 letter, “little weight” to her November 2015 mental impairment questionnaire, and “no weight” to her November 2015 letter. Id. at 31-32. She accorded “some weight” to the May 16, 2014, report of Dr. Richard Thomas. Id. at 32.

         She proceeded to assess a mental RFC that, as counsel for the commissioner conceded at oral argument, is unsupported by any expert opinion, Dr. Houston having expressed an opinion bearing on the by-then irrelevant time period ending on September 30, 2010. The commissioner nonetheless argues that the ALJ made a permissible commonsense judgment of the plaintiff's mental RFC and, even if she did not, remand is unwarranted because the plaintiff points to no reliable evidence that she had a more restricted mental RFC, rendering any error harmless. See Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 15) at 9-14. For the reasons that follow, I find neither point persuasive.

         A. ALJ's Asserted Commonsense Judgment

         The commissioner cites Manso-Pizarro for the proposition that, “where the medical evidence shows relatively little physical impairment, an ALJ permissibly can render a commonsense judgment about functional capacity even without a physician's assessment[, ]” Opposition at 12 (quoting Manso-Pizarro, 76 F.3d at 17) (internal quotation marks omitted), and Gordils v. Sec'y of Health & Human Servs., 921 F.2d 327 (1st Cir. 1990), for the proposition that an ALJ may make “common-sense judgments about functional capacity based on medical findings, ” id. (quoting Gordils, 921 F.2d at 329) (internal quotation marks omitted).

         Yet, both Manso-Pizarro and Gordils concerned physical impairments. See Manso-Pizarro, 76 F.3d at 17; Gordils, 921 F.2d at 229-30. In addition, in Manso-Pizarro, the First Circuit deemed the record “sufficiently ramified that understanding it require[d] more than a layperson's effort at a commonsense functional capacity assessment[, ]” warranting remand. Manso-Pizarro, 76 F.3d at 19. That is true here, as well.

         As the commissioner recognizes, see Opposition at 10-11, the ALJ relied heavily in assessing the plaintiff's mental RFC on her finding that the plaintiff's “allegations of severe psychiatric limitations [were] inconsistent with her activities of daily living[, ]” Record at 30. For example, the ALJ found that, “[d]uring the relevant time, [the plaintiff] was able to focus on arts and crafts including cake decorating[, ]” “attended numerous family gatherings for her family including nieces and nephews[, ]” “read[] fantasy books, despite allegations of a reading disorder[, ]” and, ...

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