United States District Court, D. Maine
MEMORANDUM DECISION 
H. Rich III, United States Magistrate Judge
Supplemental Security Income (“SSI”) 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 by declining to admit late-tendered
evidence, and made findings regarding the plaintiff's
residual functioning capacity (“RFC”) and
credibility that were not supported by substantial evidence.
See Plaintiff's Itemized Statement of Errors
(“Statement of Errors”) (ECF No. 14) at 1. I
conclude that the ALJ acted within her discretion by
declining to admit the late-tendered evidence and that her
RFC and credibility findings were supported by substantial
evidence. Accordingly, I affirm the commissioner's
to the commissioner's sequential evaluation process, 20
C.F.R. § 416.920; 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 had the
severe impairments of lumbar disc herniation with
radiculopathy, morbid obesity, status post knee arthroscopy,
personality disorder, post-traumatic stress disorder, bipolar
disorder/depression, and attention deficit hyperactivity
disorder, Finding 2, Record at 39; that she had the RFC to
perform light work as defined in 20 C.F.R. § 416.967(a)
except that she could occasionally climb ramps and stairs,
ladders, ropes, and scaffolds and occasionally balance,
stoop, kneel, crouch, and crawl, was limited to simple,
routine tasks, and should have no interaction with the
public, Finding 5, id. at 42; that, considering her
age (26 years old, defined as a younger individual, on the
date her SSI application was filed, August 14, 2013),
education (limited), work experience (transferability of
skills immaterial), and RFC, there were jobs existing in
significant numbers in the national economy that she could
perform, Findings 6-9, id. at 49; and that she,
therefore, had not been disabled from August 14, 2013,
through the date of the decision, December 29, 2015, Finding
10, id. at 50. 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. §
416.1481; 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. § 1383(c)(3); 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 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. § 416.920(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).
plaintiff's primary contention on appeal is that the ALJ
abused her discretion by declining to admit late-tendered
medical evidence in the form of a treating source's
Medical Source Statement (“MSS”). See
Statement of Errors at 6-8. She also challenges the ALJ's
RFC finding, arguing that she gave undue weight to the
opinions of agency nonexamining consultants, and her
credibility determination, arguing that it is unsupported by
substantial evidence. See id. at 14-19. For the
reasons that follow, I find no error.
Exclusion of Post-Hearing Evidence (Woelflein MSS)
plaintiff's administrative hearing was held on December
2, 2015. See Record at 67. By Notice of Hearing
dated August 28, 2015, the ALJ informed the plaintiff, in
bold typeface, that she “may decline to consider”
any evidence submitted “later than 5 business days
before the date of [the] hearing . . . unless the late
submission falls within a limited exception.”
Id. at 175.
hearing, the plaintiff testified that she was prescribed
medication to treat her back pain by her primary care
physician, Kendra Emery, D.O., and that she had previously
received the prescriptions from Karyn Woelflein, M.D. See
id. at 75. At the close of the hearing, the ALJ noted
that she had received “recent records from Dr.
Woelflein” and inquired of plaintiff's counsel
whether “records” from the plaintiff's
“primary care doctor[, ]” who had taken over her
care from Dr. Woelflein, had been filed. Id. at
95-96. The plaintiff's counsel responded that he had
recently received “two office notes from Dr.
Emery” but had not filed them because “I would
not have gotten them in within the five-day limit.”
Id. at 96. The ALJ asked counsel if the two notes
from Dr. Emery were the “only records” in
counsel's “possession” that had not been
submitted, and when counsel said yes, she told him to
“send them in[, ]” stating that he should do so
“today or tomorrow.” Id. at 96-97.
plaintiff's counsel then commented, “[M]y
experience has been that if I can't get them in within
the five-day deadline they're not admitted so that's
why I didn't send them in.” Id. at 97. The
ALJ responded, “[I]f you have me again, you should go
ahead and send them in[, ]” adding, “I mean
I'll rule on them if for some reason I think they
shouldn't be admitted, but you can go ahead and send them
in, okay?” Id.
day, the plaintiff's counsel filed two progress notes
authored by Dr. Emery, which the ALJ admitted as evidence.
See id. at 36, 1046-53. However, two days later, he
also filed an MSS by Dr. Woelflein, dated the day after the
hearing. See id. at 36; Woelflein MSS (ECF No. 13).
The ALJ “decline[d] to admit” the Woelflein MSS
because it “was submitted late and no reason was
provided to explain why it was submitted late.” Record
at 36. As a result, she noted, the plaintiff had failed to
satisfy the requirements of 20 C.F.R. § 405.331(c).
See id. In the alternative, the ALJ found that the
Woelflein MSS would have been given “little
weight” if it had been admitted. Id. at 48.
plaintiff contends that the ALJ's refusal to admit the
Woelflein MSS amounts to an abuse of discretion in light of
her decision to admit Dr. Emery's two progress notes.
See Statement of Errors at 7. The commissioner
counters that the ALJ did not abuse her discretion in making
a straightforward finding that, as to the Woelflein MSS, the
plaintiff fell short of making the requisite showing.
See Defendant's Opposition to Plaintiff's
Statement of Errors (“Opposition”) (ECF No. 18)
at 3-7. I agree.
405.331 requires that claimants “submit any written
evidence no later than 5 business days before the date of the
scheduled hearing[, ]” failing which an ALJ “may
decline to consider the evidence unless the circumstances
described in paragraphs (b) or (c) of this section
apply.” 20 C.F.R. § 405.331(a).
will admit evidence submitted “after the hearing and
before the hearing decision is issued” if a claimant
shows both “that there is a reasonable possibility that
the evidence, alone or when considered with the other
evidence of record, would affect the outcome of [the] claim,
and” either: (1) the claimant was “misled”
by an “action” of the commissioner, (2) the
claimant was “prevented . . . from submitting the
evidence earlier” due to “a physical, mental,
educational, or linguistic limitation(s)[, ]” or (3)
some “other unusual, unexpected, or unavoidable
circumstance beyond [the claimant's] control prevented
[the claimant] from submitting the evidence earlier.”
20 C.F.R. § 405.331(c).
plaintiff does not argue that the ALJ should have found
circumstances mandating the admission of the Woelflein MSS
under paragraph (c). See Statement of Errors at 6-8.
Rather, she argues that the ALJ abused her discretion by
admitting the Emery progress notes while declining to admit
the Woelflein MSS, asserting that, in light of “the
ALJ's specific request for updated information, the
relevance of the [Woelflein MSS], and the ALJ's practice
of accepting late arriving evidence, the decision to exclude
[the MSS] appears arbitrary, irrational and biased.”
Id. at 7 (citing 20 C.F.R. § 416.1440; Social
Security Ruling 13-1p (“SSR 13-1p”)). The
plaintiff contends that the ALJ's request for ...