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Robert W. v. Berryhill

United States District Court, D. Maine

July 2, 2018

ROBERT W., Plaintiff
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant



         This Social Security Disability (“SSD”) and 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 in (i) evaluating pain-related limitations in persistence and pace, (ii) assigning only partial weight to a functional capacity evaluation, and (iii) relying on vocational testimony unsupported by substantial evidence. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 13) at 4-16. I agree that the ALJ erred in determining the plaintiff's pain-related persistence and pace limitations and that this error undermined her reliance on the vocational expert's testimony at Step 5. On that basis, 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 additional point regarding the functional capacity evaluation.

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. §§ 404.1520, 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 met the insured status requirements of the Social Security Act through March 31, 2017, Finding 1, Record at 31; that he had the severe impairments of degenerative osteoarthritis of the left hip, degenerative disc disease of the lumbar spine, asthma, chronic obstructive pulmonary disease, and chronic pain, Finding 3, id.; that he had the residual functional capacity (“RFC”) to lift 10 pounds frequently and 25 pounds occasionally, was limited to sitting for 40 minutes at a time for a total of six hours in an eight-hour workday, could stand or walk for 30 minutes at a time for a total of four hours in an eight-hour workday, needed to avoid environmental irritants, chemicals, and fumes, as well as hazards and vibrations, could not climb or crawl and could only occasionally kneel and stoop, and could not work in a fast-pace work environment, Finding 5, id. at 33; that, considering his age (45 years old, defined as a younger individual, on his alleged disability onset date, October 1, 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 7-10, id. at 41; and that he, therefore, had not been disabled from October 1, 2013, through the date of the decision, August 2, 2016, Finding 11, id. at 42. 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, 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. §§ 405(g), 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. §§ 404.1520(g), 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

         The ALJ determined, in relevant part, that the plaintiff could not “work in a fast pace work environment.” Finding 5, Record at 33. She gave “great weight” to the testimony at hearing of medical expert Leonard Rubin, M.D., who had opined, inter alia, that “it was medically reasonable to find that pain would limit the [plaintiff]'s concentration and pace.” Id. at 39. She elaborated:

As for the portion of [Dr. Rubin's] opinion with respect to concentration and pace, his assessment was somewhat vague and without specific, quantifiable limitations, rendering it of less probative value. The undersigned included a limitation against fast-paced work, consistent with the doctor's testimony and with the previously outlined weight of the evidence.


         She observed that Frank Graf, M.D., a physician who had completed a disability evaluation at the request of the plaintiff's representative, had concluded, inter alia, that the plaintiff “would be impaired in maintaining pace by reason of shortness of breath with exertion and chronic pain” and that “pain would limit persistence and pace.” Id. (citation omitted). However, she stated that she gave less weight to the Graf opinion because it was “inconsistent with his benign examination” and unsupported by “the substantial weight of the record, including other benign physical examinations, only mild or moderate abnormalities on diagnostic studies, the [plaintiff]'s treatment history showing improvement, and his largely intact activities of daily living.” Id. at 39-40.

         The plaintiff argues that, while the ALJ purported to adopt a limitation consistent with Dr. Rubin's testimony, her finding is unsupported by that testimony and appears to have been the product of her own layperson's interpretation of the raw medical evidence. See Statement of Errors at 4-7. I agree.

         At hearing, after noting that Dr. Graf had stated that the plaintiff's pain would limit his persistence and pace, the plaintiff's counsel asked Dr. Rubin whether it was “medically reasonable that that is an accurate limitation for somebody with [the plaintiff]'s medically determinable impairments[.]” Record at 67. Dr. Rubin testified, “Yes, I think it's a reasonable statement.” Id.

         The ALJ then asked Dr. Rubin, “[H]ow would it limit his pace in your view, medically, in what way?” Id. at 67-68. Dr. Rubin responded: “Well, with any pain, Your Honor, particularly in a weight bearing joint, it's hard to imag[in]e the patient continuing to be able to function the way an employer would expect if the pain was so disabling that he had to take narcotics, which he does.” Id. at 68.

         As the plaintiff observes, “there is a disconnection between Dr. Rubin's testimony and the ALJ's limitation prohibiting fast-paced work.” Statement of Errors at 6. While, at oral argument, the plaintiff's counsel conceded that the ALJ's limitation was appropriate with respect to pace, she contended that the ALJ had ignored Dr. Rubin's testimony bearing on persistence. Indeed, as the plaintiff's counsel observed at oral argument, Dr. Rubin's testimony suggests that he doubted that the plaintiff was capable of persisting at any pace. See Record at 68. In that respect, the ALJ's limitation is also ...

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