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Christopher H. v. Berryhill

United States District Court, D. Maine

July 23, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant


          John H. Rich III United States Magistrate Judge.

         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 (i) erred in assessing his standing, walking, hearing, and vision limitations in determining his residual functional capacity (“RFC”), (ii) failed to apply the so-called “borderline age rule” to determine whether he was disabled pursuant to Appendix 2 to Subpart P, 20 C.F.R. Part 404 (the “Grid”), and (iii) failed to consider a closed period of disability. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 11) at 3-14. I agree that the ALJ erred in determining the plaintiff's standing/walking abilities and that this error undermined his reliance on the testimony of a vocational expert predicated on the faulty RFC determination. 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 remaining points of error.

         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 December 31, 2018, Finding 1, Record at 135; that he had the severe impairments of status post severed right anterior cruciate ligament (“ACL”), status post right ACL knee surgery, and vision loss in the left eye, Finding 3, id.; that he had the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that he no longer had the ability to climb ladders, ropes, or scaffolds or kneel, but had the ability to climb ramps or stairs, crawl, stoop, and crouch occasionally and had limited depth perception on his left side because he did not have vision in his left eye, Finding 5, id. at 136-37; that, considering his age (47 years old, defined as a younger individual, on his alleged disability onset date, October 2, 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 140; and that he, therefore, had not been disabled from October 2, 2013, through the date of the decision, April 1, 2016, Finding 11, id. at 141. 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. §§ 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 found that the plaintiff was capable of light work, see Finding 5, Record at 136, “the full range” of which “requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday[, ]” Social Security Ruling 83-10, reprinted in West's Social Security Reporting Service Rulings 1983-1991 (“SSR 83-10”), at 29. The plaintiff contends that this finding is unsupported by substantial evidence. See Statement of Errors at 4-7. I agree.

         The record contains physical RFC assessments by four medical experts: those of treating orthopedic surgeon Stephen Thompson, M.D., dated January 21, 2014, see Record at 345-48, agency examining consultant David Axelman, M.D., dated April 22, 2014, see Id. at 380-84, and agency nonexamining consultants Donald Trumbull, M.D., dated May 13, 2014, see Record at 82-85, and Richard T. Chamberlin, M.D., dated October 16, 2014, see Id. at 108-10.

         As the plaintiff observes, see Statement of Errors at 5, none of those medical experts deemed him capable of standing or walking for more than three hours in an eight-hour workday, see Record at 345 (per Dr. Thompson, plaintiff could stand or walk for less than two hours), 383 (per Dr. Axelman, plaintiff could stand for up to two hours and walk for about a half hour), 83 & 108 (per Drs. Trumbull and Chamberlin, plaintiff could stand and/or walk with normal breaks for a total of three hours).

         However, the ALJ gave those opinions little or partial weight, explaining that they were inconsistent with the plaintiff's testimony at hearing and “did not account for the drastic improvement in the [plaintiff]'s right knee status post right knee arthroscopy.” Id. at 139-40. The right knee arthroscopy to which the ALJ referred, performed in February 2015, constituted the second and final stage of knee reconstruction surgery after an initial surgery to address a workplace-related right knee injury in November 2013. See id. at 138.[2]

         The ALJ elaborated that he deemed the plaintiff's “allegations of pain and his physical restrictions credible[, ]” including his testimony that he “has little difficulty walking[.]” Id. at 138. He added that he gave partial weight to the Axelman opinion “because the [plaintiff] has the ability to stand longer than two-hours [sic] because he testified at the hearing that he does not like sitting around for very long during a normal day.” Id. at 139.

         The plaintiff contends that, because the ALJ rejected all medical expert opinion of evidence in determining his ability to stand and walk, he necessarily impermissibly substituted his own lay judgment, requiring remand. See Statement of Errors at 5-7; see also, e.g., Gerry v. Berryhill, No. 1:16-cv-00351-DBH, 2017 WL 2894126, at *6 (D. Me. July 7, 2017) (rec. dec., aff'd July 25, 2017) (“While the First Circuit does permit an [ALJ] to pick and choose among physicians' findings and opinions, it does not permit the crafting of an RFC based on the raw medical evidence of record unless common-sense judgments about functional capacity can be made.”) (citation and internal quotation marks omitted).

         The defendant counters that the ALJ merely resolved a conflict in the evidence, as he was tasked to do, by choosing to credit the plaintiff's own statements over the experts' opinions. See Defendant's Opposition to Plaintiff's Itemized Statement of Errors (“Opposition”) (ECF No. 13) at 3-5. She adds that, in any event, he made a permissible common-sense judgment about the plaintiff's capacity to stand and walk based on “objective findings that included . . . full range of motion and only mild tenderness and stiffness in his right knee[, ]” “satisfactory surgical intervention, ” and “limitations to avoid only ‘extreme activity' and pivoting and twisting activity.” Id. at 5-6 (quoting Record at 138). Finally, she notes that the ALJ pointed out that the experts' opinions all predated much of that medical evidence. See id. at 6.

         As the plaintiff's counsel rejoined at oral argument, however, the ALJ's reliance on his client's vague testimony is misplaced. In response to questions by the ALJ, ...

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