United States District Court, D. Maine
ORDER ON THE RECOMMENDED DECISION OF THE MAGISTRATE
LEVY, UNITED STATES DISTRICT JUDGE
States Magistrate Judge, John H. Rich III, filed his
Recommended Decision (ECF No. 20) on Dale W.'s Social
Security Disability (“SSD”) appeal with the Court
on May 18, 2018, pursuant to 28 U.S.C.A § 636(b)(1)(B)
(2018) and Fed.R.Civ.P. 72(b). Dale W. filed an Objection to
the Recommended Decision (ECF No. 21) on June 1, 2018. The
Commissioner filed a Response to the Objection (ECF No. 22)
on June 15, 2018.
appeal of the administrative law judge's
(“ALJ”) denial of SSD benefits, Dale W. seeks
remand, alleging that: (1) the ALJ failed to consider a
consultative report by Dr. Douglas Buxton (the “Buxton
Report”) that was admitted at the administrative
hearing; (2) the ALJ erred in his assessment of Dale W.'s
subjective complaints; (3) the ALJ's residual functional
capacity formulation is unsupported by substantial evidence;
and (4) the Appeals Council erred in its rejection of Dale
W.'s request for a review of the ALJ's decision.
See ECF No. 20 at 1. The Magistrate Judge found no
reversible error and recommended that the Court affirm the
reviewing and considering the Magistrate Judge's
Recommended Decision, together with the entire record and the
parties' briefing, I have made a de novo
determination of all matters adjudicated by the Magistrate
Judge's Recommended Decision. I concur with and adopt the
Magistrate Judge's conclusions as to Dale W.'s
second, third, and fourth arguments for remand. For the
reasons explained below, I do not concur with the Magistrate
Judge's conclusion as to the first argument and I
conclude that it was harmful error for the ALJ to fail to
consider the Buxton Report and remand the case for further
proceedings before the ALJ.
argues that the ALJ erred in failing to consider evidence
which was admitted at his June 16, 2016, hearing before the
ALJ and made part of the record. See ECF No. 13 at
8-9. At the outset of the hearing, Dale W.'s counsel
requested that the ALJ admit the Buxton Report, which
documented a consultative examination performed two days
earlier, on June 14, 2016, by Douglas H. Buxton, M.D., of
Maine Medical Partners Neurosurgery & Spine. See ECF No.
9-8 at 200-06. The ALJ granted the request, stating that he
had “determined that there is good cause and we will
make that part of the record.” ECF No. 9-3 at 67. In
his final written decision, however, the ALJ stated that he
had not found good cause to enter the Buxton Report into the
record and made no further mention of it. ECF No. 9-2 at 13.
The ALJ further explained, in supporting his conclusion that
Dale W. was not disabled, that the absence of medical records
from 2015 or 2016 suggested that “the claimant's
condition is stable and improved.” Id. at 21.
to this conclusion, the Buxton Report states:
“Unfortunately, it sounds as though [Dale W.] has begun
to develop a right C8 radicular pattern which is likely the
source of this right arm pain and weakness and numbness that
involves the third through fifth digits.” ECF No. 9-8
at 202. The Buxton Report further notes in Dale W.'s
clinical history that his “back pain has worsened as of
the past 2-3 years.” Id. at 203. The report
indicates that Dr. Buxton had ordered cervical spine x-rays
and an MRI to reassess the status of the C7-T1 segment.
Id. at 202.
STANDARD OF REVIEW
social security context, a court must affirm the
administrative decision provided that the ALJ applied the
correct legal standards and the decision is supported by
substantial evidence, even if the record contains evidence
capable of supporting an alternative outcome.
Manso-Pizarro v. Sec'y of HHS, 76 F.3d 15, 16
(1st Cir. 1996) (per curiam); Rodriguez Pagan v.
Sec'y of HHS, 819 F.2d 1, 3 (1st Cir. 1987).
Substantial evidence is evidence that a reasonable mind might
accept as adequate to support a finding. Richardson v.
Perales, 402 U.S. 389, 401 (1971); Rodriguez v.
Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981).
“The ALJ's findings of fact are conclusive when
supported by substantial evidence, but are not conclusive
when derived by ignoring evidence, misapplying the law, or
judging matters entrusted to experts.” Nguyen v.
Chater, 172 F.3d 31, 35 (1st Cir. 1999) (internal
citation omitted). The Social Security Act permits the Court
to remand a claim and order the ALJ to consider new evidence,
see 42 U.S.C.A. § 405(g) (2018), provided the
evidence is more than cumulative and can support a reasonable
inference that the administrative decision might have been
different had the evidence been considered. Falu v.
Sec'y of HHS, 703 F.2d 24, 27 (1st Cir. 1983).
argues that the Buxton Report directly contradicts an
explicit basis for the ALJ's finding that he was not
disabled: that the lack of treatment records from 2015 and
2016 suggested that his condition was stable. ECF No. 21 at
2. The Commissioner concedes that it was error for the ALJ to
find that the Buxton Report was not entered into the record
when he had, in fact, already entered it into the record. ECF
No. 20 at 4; ECF No. 16 at 2. The Commissioner argues,
however-and the Recommended Decision agrees-that the error is
harmless because the Buxton Report postdates Dale W.'s
date last insured (“DLI”) by nearly six months,
and nothing in the Report makes clear that his condition had
deteriorated as of the date the claimant was last insured:
December 31, 2015. ECF No. 20 at 4-5.
support, the Commissioner and the Recommended Decision cite
to Stain v. Astrue, No. 2:11-cv-225-DBH, 2012 WL
1067867 (D. Me. Mar. 28, 2012) (rec. dec., aff'd Apr. 17,
2012), and Pierce v. Astrue, No. 1:10-cv-242-JAW,
2011 WL 2678919 (D. Me. July 7, 2011) (rec. dec., aff'd
July 29, 2011), for the proposition that an ALJ's failure
to consider evidence postdating a claimant's DLI is
harmless. The Commissioner further cites Pierce for
the proposition that a medical opinion phrased in the present
tense-as Dr. Buxton's is here-is not indicative of a
claimant's prior condition. 2011 WL 2678919 at *5.
cases are distinguishable. In Pierce, the medical
evidence in question was issued twelve years after
the claimant's DLI. There, given the passing of more than
a decade, the conclusion that the medical opinion-phrased in
the present tense-“indicate[d] on its face that it
reflect[ed] the plaintiff's then-current condition”
was reasonable. Id. In Stain, meanwhile,
the post-dated medical evidence related solely to post-DLI
treatment and there was no indication in the record that it
related to the pre-DLI period. 2012 WL 1067867 at *4-5. Here,
however, the Report refers to the pre-DLI period, noting that
Dale W.'s back pain “has worsened as of the past
2-3 years” and his neck pain “has worsened for
unspecified time - about one year.” ECF No. 9-8 at 203.
Given that, unlike in Pierce, the Buxton Report was
created just six months after the DLI, the language
“has begun to develop a right C8 radicular pattern,
” id. at 202, can reasonably be interpreted to
indicate a degeneration that began more than six months
earlier. Furthermore, the Buxton Report does not note any
contemporaneous trauma that precipitated the medical visit,
further suggesting that the diagnosed condition-one
implicating chronic neck and back pain-could plausibly be a
longstanding degeneration that predates the DLI.
the ALJ's reliance on the lack of medical records from
2015 to 2016 showing degeneration in Dale W.'s condition
is an explicit basis for the ALJ's decision, the Buxton
Report, which plausibly suggests degeneration, can support an
inference that the administrative “decision might have
reasonably been different had the new evidence been
[considered].” Falu, 703 F.2d at 27. I
therefore vacate the ALJ's ...