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Dawn S. v. Social Security Administration Commissioner

United States District Court, D. Maine

August 16, 2018

DAWN S., Plaintiff
v.
SOCIAL SECURITY ADMINISTRATION COMMISSIONER, Defendant

          REPORT AND RECOMMENDED DECISION

          JOHN C. NIVISON U.S. MAGISTRATE JUDGE

         On Plaintiff Dawn S.'s application for disability insurance benefits under Title II and supplemental security income benefits under Title XVI of the Social Security Act, Defendant, the Social Security Administration Commissioner, found that Plaintiff has severe impairments, but retains the functional capacity to perform substantial gainful activity. Defendant, therefore, denied Plaintiff's request for disability benefits. Plaintiff filed this action to obtain judicial review of Defendant's final administrative decision pursuant to 42 U.S.C. § 405(g).

         Following a review of the record, and after consideration of the parties' arguments, I recommend the Court vacate the administrative decision and remand the matter for further proceedings.

         The Administrative Findings

         The Commissioner's final decision is the July 22, 2016, decision of the Administrative Law Judge. (ALJ Decision, ECF No. 9-2.)[1] The ALJ's decision tracks the familiar five-step sequential evaluation process for analyzing social security disability claims, 20 C.F.R. §§ 404.1520, 416.920.

         The ALJ found that Plaintiff has severe, but non-listing-level impairments consisting of degenerative disk disease of the cervical spine with posterior spondylosis at ¶ 3-4 and narrowing of the lateral recess, as well as disk narrowing with left-sided recess at ¶ 6-7, and bilateral carpal tunnel syndrome, right worse than left. (ALJ Decision ¶¶ 3 - 4, R. 18.) The ALJ determined Plaintiff has the residual functional capacity (RFC) to perform light work; frequently use her right upper extremity for the operation of hand controls; occasionally climb ramps and stairs, but never ladders, ropes or scaffolds; frequently balance and kneel; occasionally stoop, crouch or crawl; and frequently work overhead with both upper extremities. (Id. ¶ 5.)

         Considering Plaintiff's RFC, Plaintiff's age and vocational profile, and the testimony of a vocational expert, the ALJ found Plaintiff is able to perform substantial gainful activity, including the representative jobs of counter clerk (DOT # 249.366-010), tanning salon attendant (# 359.567-014), and photocopy machine operator (# 207.685-014). Accordingly, the ALJ found Plaintiff was not under a disability for the period commencing August 12, 2013, through July 22, 2016. (ALJ Decision ¶¶ 10 - 11, R. 29 - 30.)

         Standard of Review

         A court must affirm the administrative decision provided the decision is based on the correct legal standards and 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 they 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).

         Discussion

         The ALJ gave great weight to the opinions of Katherine Lapierre, a non-expert “single decision maker” (SDM), [2] and J.H. Hall, M.D., who reviewed Plaintiff's records on behalf of Disability Determination Services. (R. 25, citing Exs. 3A, 4A, 7A, 8A.) The ALJ also gave some weight to the opinion of the worker's compensation examining physician, Dr. William Boucher, but Dr. Boucher's opinion is not part of the record. (Id.) The ALJ gave little weight to treatment provider Paul Upham, M.D. (Ex. 5F.) The ALJ found Dr. Upham's opinions to be inconsistent with longitudinal findings and treatment modalities, Plaintiff's primary reliance on non-prescribed marijuana for treatment, and Plaintiff's reported activities of daily living. (R. 26.) The ALJ gave even less weight to the opinion of Dr. Robert Phelps, who examined Plaintiff both upon referral by Plaintiff's counsel and upon referral by Disability Determination Services. (Exs. 7F, 9F, 10F.)

         Plaintiff argues the ALJ erred when she placed any weight on an opinion of Ms. Lapierre, the SDM, or on a medical expert opinion that was not part of the record (i.e., Dr. Boucher). Plaintiff also contends the ALJ erred in her overall assessment of the expert medical opinion evidence.

         In her decision, the ALJ wrote, “I give great weight to the assessments of Dr. Lapierre and Dr. Hall.” (ALJ Decision at 10, R. 25.) Given the ALJ's description of Ms. Lapierre as “an advising physician to the Disability Determination Service, ” and her consistent reference to Ms. Lapierre as “Dr. Lapierre, ” the ALJ evidently believed Ms. Lapierre was a medical doctor. Defendant concedes that the ALJ's reliance on Ms. Lapierre's opinion was improper as Ms. Lapierre is not a medical professional. Defendant, however, maintains the ALJ's error was harmless because the ALJ relied more heavily on Dr. Hall's assessment and the RFC is consistent with Dr. Hall's assessment.

         On February 14, 2015, Dr. Hall assessed Plaintiff's physical RFC based on Plaintiff's severe cervical degenerative disk disease (neck pain, arm numbness and weakness) and carpal tunnel syndrome (pain and difficulty with manipulation). As part of his assessment, Dr. Hall reviewed the January 2015 medical opinion of Dr. Phelps (Ex. 7F), and the records and opinions provided by SMHC Workwell, which contain Dr. Upham's records (Ex. 5F). (See Hall Assessment, Ex. 8A, R. 158 - 59.) Dr. Hall's RFC opinion is supportive of the ALJ's RFC finding.[3] Dr. Hall noted that his assessment was based on his review of the evidence ...


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