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Thomas A. v. Berryhill

United States District Court, D. Maine

August 26, 2018

THOMAS A., Plaintiff
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant



         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 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.

         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 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. 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 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).

         I. Discussion

         Dr. 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.

         In her 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.

         In 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).

         The ALJ 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.

         Turning to the opinion evidence, the ALJ indicated that she had given Dr. Kirkpatrick's November 2014 MSS ...

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