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Picard v. Berryhill

United States District Court, D. Maine

March 16, 2018

LEONEL PICARD, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          MEMORANDUM DECISION [1]

          John H. Rich III United States Magistrate Judge.

This 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 (i) ignored material evidence, (ii) failed to find that his impairments met the criteria of sections 12.04, 12.06, and 12.08 of Appendix 1 to 20 C.F.R. Part 404, Subpart P (“the Listings”), (iii) mischaracterized the evidence, (iv) disregarded evidence from “nonacceptable” medical sources, and (v) erroneously relied on the opinions of agency nonexamining consultants. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 12) at 1. I conclude that remand is warranted based on the ALJ's failure to acknowledge and resolve a material evidentiary conflict regarding the plaintiff's ability to handle work stress. Accordingly, I vacate the commissioner's decision and remand this case for further proceedings consistent herewith. I need not and do not reach the plaintiff's remaining points of error.

         Pursuant 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 severe impairments of anxiety, depression with bipolar disorder, and personality disorder, Finding 2, Record at 40; that he had the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels, but with the following nonexertional limitations: he was limited to performing simple, routine, competitive, repetitive, non-abstract tasks on a sustained basis over a normal eight-hour workday and in a stable environment, with no more than simple decision-making, no close interpersonal interactions with supervisors or coworkers, no teamwork, no interaction with the public, and no performance of complex and detailed tasks, Finding 4, id. at 42; that, considering his age (50 years old, defined as an individual closely approaching advanced age, on the date his application was filed, April 25, 2013)[2], 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 he could perform, Findings 6-9, id. at 47; and that he, therefore, had not been disabled from April 25, 2013, through the date of the decision, June 25, 2015, Finding 10, id. at 48. The Appeals Council declined to review the decision, id. at 1-4, 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).

         The 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).

         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 his 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).

         I. Discussion

         On August 14, 2013, agency examining consultant Margaret A. Morrison, Ph.D., evaluated the plaintiff, diagnosing him with social phobia, major depression, and avoidant personality disorder and stating, in relevant part:

The following statement is offered regarding [the plaintiff's] ability to perform employment activities. [He] should be able to follow work rules. He appears to struggle with dealing with relating to others appropriately. He appears capable of using appropriate gross judgment. He does not appear capable of dealing with work stressors. He should be able to function independently. Difficulties with attention, concentration, persistence, pace, and memory [were] not observed. He appears capable of maintaining personal appearance. He may have some difficulties behaving in an emotionally stable manner. He demonstrated adequate social skills during today's evaluation. He is reporting that he has not worked in many years, in part because he was taking care of his dying parents but predominantly because of social anxiety.

Record at 521-22.

         Two agency nonexamining psychological consultants, Lewis F. Lester, Ph.D., and Brian Stahl, Ph.D., subsequently reviewed the then-available record, including the Morrison report. See id. at 97-103 (initial review by Dr. Lester dated August 30, 2013), 112-19 (reconsideration review by Dr. Stahl dated April 1, 2014). Both made clear that they rejected Dr. Morrison's conclusion that the plaintiff did “not appear capable of dealing with work stressors[, ]” explaining:

Opinion that [the plaintiff] does not appear capable of dealing with work stressors reflects a very severe limitation that is not supported by other evidence. [The plaintiff's] limited capacity for stress was considered in the MRFC [mental RFC].

Id. at 103, 119. They described the Morrison opinion, in relevant part, as “an overestimate of the severity of the [plaintiff's] restrictions/limitations and based only on a snapshot of [his] functioning.” Id.

         The ALJ stated, in relevant part:

Even though [Dr. Morrison] noted that [the plaintiff] might have problems with work stress and relating to others, she concluded that [he] ...

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