United States District Court, D. Maine
REPORT AND RECOMMENDED 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 basis
that the ALJ erred in two respects in determining his mental
residual functional capacity (“RFC”): in
assessing a limitation flowing from his cognitive disorder
that is unsupported by any record evidence and in failing to
assess any limitation in his ability to work with coworkers
and supervisors. See Statement of Specific Errors
(“Statement of Errors”) (ECF No. 13) at 1-14. He
argues that these errors undermined the ALJ's reliance on
the testimony of a vocational expert predicated on the faulty
mental RFC determination. See id. at 14. I agree
that the ALJ erred in assessing the functional effects of the
plaintiff's cognitive disorder and that this error
warrants remand. Accordingly, I recommend that the court
vacate the commissioner's decision and remand this case
for further proceedings consistent herewith. I need not and
do not reach the plaintiff's argument that the ALJ's
omission of a limitation in working with coworkers and
supervisors separately warrants remand.
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 degenerative disc disease of the lumbar
spine, affective disorder, anxiety disorder,
attention-deficit disorder, and cognitive disorder status
post remote traumatic brain injury, Finding 2, Record at 19;
that he had the RFC to perform sedentary work as defined in
CFR § 416.967(a) except that he could lift, carry, push,
and pull up to 10 pounds occasionally, sit for six hours in
an eight-hour workday, stand and walk for two hours in an
eight-hour workday, and stand and walk for intervals of no
more than 15 minutes, would need to stand or walk for five
minutes, remaining on task, after 30 minutes of sitting,
could never climb ladders, ropes, or scaffolds, could
occasionally climb ramps or stairs, could occasionally
crouch, crawl, kneel, and stoop, could never balance on
uneven surfaces, needed to avoid exposure to extreme cold,
vibration, moving mechanical parts, and unprotected heights,
could frequently reach and handle with the right (dominant)
upper extremity, was limited to simple work in a
nonproduction-paced work setting (no assembly-line type
work), could not work with the public as part of his job
duties, was limited to simple decision making and no more
than occasional changes in a routine work setting, and would
be off-task for 10 percent of the workday in addition to
normal breaks, Finding 4, id. at 22; that,
considering his age (45years old, defined as a younger
individual, on his amended alleged disability onset date,
December 3, 2013), 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 29; and that he, therefore, had not been
disabled from December 3, 2013, through the date of the
decision, June 1, 2016, Finding 10, id. at 30-31.
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 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).
statement of errors also implicates Step 4 of the sequential
evaluation process, at which stage the claimant bears the
burden of proving inability to return to past relevant work.
20 C.F.R. § 416.920(f); Yuckert, 482 U.S. at
146 n.5. 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. §
416.920(f); Social Security Ruling 82-62 (“SSR
82-62”), reprinted in West's Social Security
Reporting Service Rulings 1975-1982, at 813.
ALJ noted, the plaintiff filed the instant application for
SSI benefits shortly after the Appeals Council denied his
request for review of a prior unfavorable ALJ decision issued
on July 27, 2012. See Record at 25. In the 2012
decision, a different ALJ had found that the plaintiff had
the severe impairments of lumbar degenerative disc disease
and depression and that he was limited, in relevant part, to
work involving simple, routine, repetitive tasks.
See Findings 3, 5, id. at 81-82.
stated, “Considering the passage of over a year between
the issuance of this decision and the application for
disability currently under review, I afford [the 2012
decision] limited weight.” Id. at 25. He
The limitations of that [RFC] are still supported, and the
review of more recent medical records demonstrates that the
[plaintiff] continues to suffer from the impairments found in
this decision. However, the [plaintiff]'s ability to sit
for long periods of time has deteriorated and his mental
impairments have been better documented, thus supporting
additional limitations such as the need to take routine
breaks while sitting and an allowance that he may be off task
for up to 10% of the work day.
following the issuance of the 2012 decision, the plaintiff
underwent a neuropsychological evaluation by Christine R.
Deering, Ph.D., on March 28, 2013, see id. at
328-35, and, in connection with the instant application, a
psychological evaluation by agency examining consultant A.J.
Butler, Ed.D., on April 16, 2014, see Id. at 369-74.
With the benefit of review of both of those reports, two
agency nonexamining consultants, Peter G. Allen, Ph.D., and
Brian Stahl, Ph.D, formulated opinions concerning the nature
and impact of the plaintiff's mental impairments. See
Id. at 105-13, 124-31.
plaintiff's primary care physician, Charles T. McHugh,
M.D., referred him to Dr. Deering “for a comprehensive
neuropsychological evaluation to assess the current level of
his cognitive and neurobehavioral functioning secondary to
declining short-term memory, problems with vision,
personality changes, and distractibility exacerbated over the
past 6-8 months.” Id. at 328; Statement of
Errors at 9. Dr. Deering noted that the plaintiff's
history included “severe head trauma with loss of
consciousness secondary to a motorcycle accident at age 18
which required a 3 month hospitalization.” Record at
328. She concluded that he had a cognitive disorder not
otherwise specified, an attention-deficit hyperactivity
disorder, and a mood disorder not otherwise specified.
See Id. at 334.
Deering noted that “[t]here was evidence of mild
degrees of distractibility/inattention and
impulsivity/restlessness despite the quiet testing
environment” and that:
Neuropsychological deficits were observed in the areas of
attention/concentration, executive functioning, memory
functions, and motor functions on his right side. Performance
on tasks of attention/concentration indicated problems with
immediate auditory attention, divided attention, processing
speed, and sustained attention. Executive functioning, often
correlated with poor attentional capacity, evidenced mild
levels of mental concreteness, inability to quickly and
easily benefit from verbal feedback, and mild response
inhibition. Memory functions were lower than expected on
delayed memory for prose, rote memory, and delayed memory for
section of her report titled “Treatment
Recommendations, ” Dr. Deering stated, “As [the
plaintiff] evidences significant neuropsychological deficits
in the areas of attention/concentration, executive functions,
memory functions (as well as significant mood dysregulation
with depression) he is not deemed capable of ...