United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
C. NIVISON U.S. MAGISTRATE JUDGE
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).
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
Commissioner's final decision is the July 22, 2016,
decision of the Administrative Law Judge. (ALJ Decision, ECF
No. 9-2.) The ALJ's decision tracks the familiar
five-step sequential evaluation process for analyzing social
security disability claims, 20 C.F.R. §§ 404.1520,
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. ¶
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.)
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).
gave great weight to the opinions of Katherine Lapierre, a
non-expert “single decision maker” (SDM),
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.)
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.
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.
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. Dr. Hall noted
that his assessment was based on his review of the evidence