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Aaron H. v. Social Security Administration Commissioner

United States District Court, D. Maine

August 28, 2018

AARON H., Plaintiff
v.
SOCIAL SECURITY ADMINISTRATION COMMISSIONER, Defendant

          REPORT AND RECOMMENDED DECISION

          JOHN C. NIVISON U.S. MAGISTRATE JUDGE

         On Plaintiff's application for disability insurance benefits under Title II, Defendant, the Social Security Administration Commissioner, found that Plaintiff has severe impairments, but retained the functional capacity to perform substantial gainful activity as of his date last insured, March 31, 2016. 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 August 31, 2017, decision of the Appeals Council, in which decision the Appeals Council reviewed an ALJ's findings together with Department of Veterans' Affairs (VA) opinion evidence the ALJ did not weigh, including supplemental evidence related to treatment Plaintiff received from VA providers. (Decision of the Appeals Council, ECF No. 9-2.) Following its review, the Appeals Council adopted the ALJ's material findings.

         The underlying ALJ decision tracks the familiar five-step sequential evaluation process for analyzing social security disability claims, 20 C.F.R. § 404.1520. The ALJ found that Plaintiff has severe, but non-listing-level impairments consisting of obesity, substance abuse, multilevel degenerative disk disease, anxiety, and chronic adjustment disorder. (ALJ Decision, ECF No. 9-4, Ex. 5A, R. 291 - 92.) According to the ALJ, Plaintiff retains the residual functional capacity (RFC) to perform a subset of the light-exertion work base, such that he is limited to no more than occasional bilateral overhead reaching or unsupported forward extension shoulder height or above, no more than occasional postural change (stoop, kneel, crouch, crawl, balance and climb ramps and stairs), and no exposure to hazards such as unprotected heights, dangerous machinery or climbing ladders, ropes or scaffolds. The ALJ further found that Plaintiff has the mental RFC to perform simple, routine and repetitive tasks that involve no more than incidental independent judgment or discretion, no more than incidental changes in work processes, no contact with the general public, and no more than incidental contact with coworkers. (R. 294.)

         As to Plaintiff's degenerative disc disease, the ALJ concluded that Plaintiff's subjective back and shoulder pain symptoms are “out of sync with the diagnostic and physical findings” of record. (R. 294 - 295.) The ALJ specifically noted that Plaintiff's congenital spinal stenosis of the thoracolumbar spine produced only a mild degree of loss of function, reflected in findings that Plaintiff had good strength, normal range of motion, and negative straight leg raise with no guarding, radiculopathy or ankyloses. (R. 295.)

         According to the ALJ, treatment providers have determined only that Plaintiff is precluded from heavy exertion, and that he would have mild limitations for lower exertion levels. (Id., citing Ex. 4F, ECF No. 9-9, R. 589.) The ALJ also found Plaintiff's activities of daily living to be appreciable, in that Plaintiff cares for two toddlers and frequently lifts them from the ground. (Id., citing Ex. 13F, ECF No. 9-10, R. 981.) Plaintiff also reported to a provider that he would like to improve his health so he could use his kayak. (Id., citing Ex. 6F, R. 849.)

         Regarding Plaintiff's mental RFC, the ALJ did not credit Plaintiff's assertion that he blacked out while driving, noting a function report in which Plaintiff denied any restrictions related to driving and that he reported going out alone. (Ex. 4E, ECF No. 9-7.) Similarly, while Plaintiff claimed to experience memory loss, during a neuropsychological examination in January 2016, he “did not show any problems with memory, with scores or delayed memory items generally average to above average.” (Ex. 5F, ECF No. 9-10, R. 843.) The ALJ surmised that Plaintiff's subjective experience could relate to his cannabis use. (R. 296; Ex. 5F, R. 837.) While Plaintiff experiences anxiety, his symptoms decrease with exercise and he has reported the cessation of symptoms when he leaves a job he does not like. (Ex. 4F, ECF No. 9-9, R. 591 - 595, 668.)

         Disability Determination Services reviewed Plaintiff's claim in July 2016 and November 2016 in connection with its initial denial and reconsideration denial, respectively, of Plaintiff's claim. (Exs. 1A, 3A, ECF No. 9-4.) All of the physicians who considered Plaintiff's records found his impairments to be non-severe for vocational purposes, and found his subjective report to be inconsistent with the other evidence of record. (Burkhart, Ph.D., R. 269 - 70; Weinberg, M.D., R. 271 - 72; Haskell, Ph.D, R. 279 - 80; Green, D.O., R. 281 - 82.)

         The ALJ noted the existence of VA records, including records that reflect Plaintiff received a disability rating from the VA. (R. 296 - 97.) The ALJ did not specifically weigh the VA records as treating source opinion evidence, but the ALJ did cite to and quote certain entries in the VA records in support of his RFC analysis, as outlined above (discussing entries in Exs. 4F - 6F). The ALJ further observed that while he considered the records, the VA disability rating process is distinct from the SSA disability assessment process, and that the VA rating is not determinative of Plaintiff's claim. (R. 297.)

         Plaintiff requested review by the Appeals Council. Pending the Council's ruling, Plaintiff provided additional treatment records, including records that reflect a mental health admission at the Togus VA hospital. (June 4, 2016, Progress Note, ECF No. 9-3, R. 202 - 225.) Plaintiff also provided the Appeals Council with a Mental Medical Source Statement from Mary Tibbetts, M.D. (Representative Correspondence, Ex. 13E; Representative Brief, Ex. 14E, ECF No. 9-7.) In the source statement, which Dr. Tibbetts signed on July 11, 2017, Dr. Tibbetts identified herself as a treatment provider “since 6/4/2017, every 3 - 4 weeks.” (ECF No. 9-2, R. 37, 42.) Based on her treatment of Plaintiff and a review of his VA Maine records, Dr. Tibbetts opined that Plaintiff has been severely impaired “since 2/2015, but probably earlier, since vet noted to have chronic adjustment disorder during military service.” (R. 42.) Among other findings, Dr. Tibbetts stated that Plaintiff would be unable to meet competitive standards related to maintaining attention in two-hour segments, or completion of a normal workday or workweek without interruptions from psychologically based symptoms. (R. 39.)

         Based on the VA opinion evidence the ALJ had not discussed, the new evidence from Dr. Tibbetts, and the fact that the ALJ had assigned little weight to the opinions of the Disability Determination Services physicians, Plaintiff requested a remand for further proceedings. (Ex. 14E, R. 475.) The Appeals Council concluded, after its review of the VA records, that there was no reasonable probability that further consideration of the records by the ALJ would change the outcome. (AC Decision at 2, R. 5.) The Appeals Council thus denied Plaintiff's request for a remand.

         Standard ...


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