United States District Court, D. Maine
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 erred in evaluating his fatigue associated with
multiple sclerosis (“MS”) and in failing to
provide good reasons for discounting certain opinions of
treating physician Sally Kirkpatrick, M.D. See
Statement of Specific Errors (“Statement of
Errors”) (ECF No. 13) at 2-9. I agree that the ALJ
failed to provide good reasons for discounting Dr.
Kirkpatrick's opinion that the plaintiff required
unscheduled work breaks as a result of his muscle weakness
and chronic fatigue. On that basis, I 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
22; that he had the severe impairment of MS,
relapsing-remitting type, Finding 3, id.; that he
had the residual functional capacity (“RFC”) to
perform light work as defined in 20 C.F.R. §§
404.1567(b) and 416.967(b), except that he was limited to
occasionally climbing stairs, ladders, ramps, ropes, and
scaffolds, could occasionally balance, stoop, kneel, crouch,
and crawl, could frequently reach in all directions, could
not handle constantly, could not frequently finger objects
smaller than a quarter, and had to avoid moderate exposure to
high heat and vibratory tools, Finding 5, id. at 25;
that, considering his age (43 years old, defined as a younger
individual, on his alleged disability onset date, October 22,
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 29; and
that he, therefore, had not been disabled from October 22,
2013, through the date of the decision, May 9, 2016, Finding
11, id. at 30-31. 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.
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).
Kirkpatrick submitted two opinions in support of the
plaintiff's applications for disability benefits, one of
which was a Multiple Sclerosis Medical Source Statement
(“MSS”) dated November 19, 2014. See
Record at 373-76; see also id. at 377.
MSS, Dr. Kirkpatrick indicated, in relevant part, that (i)
the plaintiff complained “of a type of fatigue that is
best described as lassitude rather than fatigue of motor
function[, ]” (ii) “this kind of fatigue
complaint is typical of M.S. patients[, ]” (iii) the
plaintiff would sometimes need to take unscheduled breaks
during a work day at unknown intervals, and (iv) the
plaintiff's impairments were likely to produce good days
and bad days. Id. at 374-76. She attributed the
plaintiff's need for unscheduled breaks to muscle
weakness and chronic fatigue. See id. at 375.
summarizing the medical evidence of record, the ALJ noted:
In August 2013, the medical record indicated that fatigue was
the main concern and problem for the [plaintiff]. The
[plaintiff] continued to experience fatigue and weakness in
April 2014, and was also reporting electrical shock type
symptoms shooting into his legs and arms without accompanying
weakness. However, when [Dr. Kirkpatrick] performed a
physical exam it was mainly unremarkable. . . . After her
examination, Dr. Kirkpatrick noted that fatigue seemed to be
the factor most affecting [the plaintiff's] life. She
noted that his relaps[ing]-remitting MS was currently stable.
Dr. Kirkpatrick reiterated her opinion that his MS was
probably stable in October 2014. As a treating provider, I
have given great weight to this opinion. She had the
opportunity to perform a comprehensive examination, and had
an understanding of the longitude [sic] of the
[plaintiff]'s treatment. Her opinion is consistent with
her physical examination as well as with the
[plaintiff]'s ongoing subjective complaints of fatigue.
Accordingly, I have given it great weight.
The [plaintiff] continued to report fatigue, and in April
2014 Dr. Kirkpatrick noted that he was flushed and appeared
chronically ill. She also noted that there was an irregular
postural tremor of his right arm and hand. At this time she
wrote a note indicating that the weakness and tremor of his
hands leads to trouble using tools. I have given great weight
to this opinion. As previously noted, Dr. Kirkpatrick is a
treating physician. Her opinion is based on her personal
examination, and is consistent with the [plaintiff's]
allegations of hand tremors and weakness.
Id. at 26-27 (citations omitted).
stated that, “[o]n the basis of the [plaintiff]'s
fatigue and muscle pain due to his MS, I have limited him to
light exertional level with only occasional climbing of
stairs, ladders, ramps, ropes and scaffolds” as well as
only occasional balancing, stooping, kneeling, crouching, and
crawling. Id. at 27.
to the opinion evidence, the ALJ indicated that she had given
Dr. Kirkpatrick's November 2014 MSS ...