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Susan S. v. Berryhill

United States District Court, D. Maine

July 30, 2018

SUSAN S., Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          REPORT AND RECOMMENDED DECISION [1]

          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 past relevant work and, in the alternative, performing work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that the ALJ lacked any medical opinion support for her residual functional capacity (“RFC”) determination and impermissibly rejected the opinion of a treating physician, George E. Bokinsky, M.D. See Plaintiff's Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 13) at 3-8. I agree that the RFC determination is unsupported by substantial evidence and, on that basis, 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 second point of error regarding the ALJ's treatment of Dr. Bokinsky's opinion.

         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 September 30, 2018, Finding 1, Record at 12; that she had the severe impairments of a sleep-related breathing disorder and obesity, Finding 3, id. at 13; that she had the RFC to perform a full range of work at all exertional levels but with the following nonexertional limitations: she could not climb ladders, ropes, or scaffolds, needed to avoid exposure to unprotected heights and dangerous equipment, commercial driving, and heavy machinery, and needed to avoid concentrated exposure to pulmonary irritants, Finding 5, id. at 15; that she was capable of performing past relevant work as a CNA, which did not require the performance of work-related activities precluded by her RFC, Finding 6, id. at 19; that, in the alternative, considering her age (49 years old, defined as a younger individual, on her alleged disability onset date, November 19, 2012), 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 she could perform, id. at 19; and that she, therefore, had not been disabled from November 19, 2012, through the date of the decision, January 12, 2016, Finding 7, id. at 20-21. 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 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. §§ 404.1520(f), 416.920(f); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). 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. §§ 404.1520(f), 416.920(f); Social Security Ruling 82-62 (“SSR 82-62”), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.

         In the alternative, 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 her past relevant work. 20 C.F.R. §§ 404.1520(g), 416.920(g); Yuckert, 482 U.S. at 146 n.5; 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 plaintiff complains that, after rejecting the opinions of treating and examining physicians, the ALJ improperly adopted the findings of a Single Decision Maker (“SDM”) in assessing her RFC, warranting remand. See Statement of Errors at 3-6.

         An SDM “is an employee of the Social Security Administration who has no medical credentials” and whose opinion “is entitled to no weight.” Chambers v. Colvin, Civil No. 15-cv-150-JL, 2016 WL 614405, at *4 (D.N.H. Feb. 16, 2016). Accordingly, if an ALJ relies on the opinion of an SDM in formulating an RFC, the ALJ is considered to have “effectively substituted [her] own judgment for medical opinion.” Id. (citation and internal quotation marks omitted).

         The commissioner concedes that reliance on the opinion of an SDM is inappropriate. See Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 16) at 4; Omar v. Astrue, Civil No. 08-270-P-S, 2009 WL 961230, at *2 n.2 (D. Me. Apr. 7, 2009) (rec. dec., aff'd May 1, 2009) (“[A] physical [RFC] form completed by a “single decision maker” is not an acceptable medical source opinion and thus not available as evidence on which the [ALJ] could rely.”). However, she argues that, rather than relying on the findings of the SDM, the ALJ made a common-sense determination of the effects of the plaintiff's obesity and sleep-related breathing disorder. See Opposition at 4-7. She contends that, in any event, the actual limitations assessed by the ALJ were more favorable than called for by the medical evidence of record. See id. at 8.

         Turning first to the question of whether the ALJ relied on the SDM, the commissioner argues that “[t]here is no indication that the ALJ was under any misapprehension that the SDM's assessment was a medical opinion[, ]” noting that she expressly addressed the medical opinions of agency nonexamining medical and psychological consultants, and that “[m]erely because elements of the ALJ's RFC are similar to the SDM's assessment, does not mean that the ALJ impermissibly relied on the SDM.” Id. at 4-5. However, as the plaintiff's counsel underscored at oral argument, the ALJ's RFC is virtually identical to that of the SDM. Compare Finding 5, Record at 15 with id. at 67-69. The inference that she relied on it is inescapable. That she discussed only the expert consultants' opinions, omitting mention of that of the SDM, see id. at 18, does not undercut that inference.

         Moreover, while the ALJ stated that she did “not accord[] great weight” to the expert agency nonexamining consultants' opinions because those experts “did not have access to . . . lat[]er adduced evidence[, ]” id., as a practical matter she could not have accorded their opinions any weight regarding the plaintiff's physical impairments - the only impairments she found severe. On initial review, only the SDM offered an opinion regarding the plaintiff's physical impairments: no expert consultant did so. See id. at 67-69, 74. On reconsideration, Robert Hayes, D.O., reviewed the plaintiff's physical impairments; however, he made no RFC assessment, explaining that there was insufficient evidence for both the period prior to her date last insured for SSD benefits, May 31, 2013, and the current period for purposes of her SSI claim. See id. at 83-84, 88. Compounding matters, the date last insured on which Dr. Hayes relied in assessing the SSD claim turned out to be erroneous, rendering that opinion irrelevant in any event. See id. at 29-30, 34. The ALJ's sub silentio reliance on the SDM opinion was clear error. See, e.g., Omar, 2009 WL 961230, at *2 n.2.

         The commissioner, nonetheless, argues that the ALJ independently made a permissible common-sense determination of the plaintiff's RFC. See Opposition at 5-7. As the commissioner observes, see Opposition at 5, the First Circuit has carved an exception to the general rule that, “since bare medical findings are unintelligible to a lay person in terms of [RFC], the ALJ is not qualified to assess [RFC] based on a bare medical record[, ]” holding that “[t]his principle does not mean . . . that the [commissioner] is precluded from rendering common-sense judgments about functional capacity based on medical findings, as long as [she] does not overstep the bounds of a lay person's competence and render a medical judgment[, ]” Gordils v. Sec'y of Health & Human Servs., 921 F.2d 327, 329 (1st Cir. 1990). The First Circuit elaborated:

Obviously, speaking hypothetically, if the only medical findings in the record suggested that a claimant exhibited little in the way of physical impairments, but nowhere in the record did any physician state in functional terms that the claimant had the exertional capacity to meet the requirements of sedentary ...

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