United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
H. Rich III United States Magistrate Judge.
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.
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.
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).
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).
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.
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
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).
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
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.
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).
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.
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, ...