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Christopher G. v. Berryhill

United States District Court, D. Maine

September 27, 2018

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 basis that the ALJ's determination of his mental residual functional capacity (“RFC”) was unsupported by substantial evidence, undermining her reliance on the testimony of a vocational expert predicated on that flawed finding. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 13) at 4-12. I agree and, accordingly, vacate the commissioner's decision and remand this case for further proceedings consistent herewith.

         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 March 31, 2015, Finding 1, Record at 24; that he had the severe impairments of degenerative disc disease of the spine, diabetes mellitus, history of deep vein thrombosis, degenerative joint disease of the left knee, chronic pain, bipolar affective disorder, generalized anxiety disorder, depression, attention deficit disorder, and obesity, Finding 3, id.; that he had the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except that, inter alia, he could not work with the public, Finding 5, id. at 26; that, considering his age (42 years old, defined as a younger individual, on his alleged disability onset date, February 25, 2010), education (limited), 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 33-34; and that he, therefore, had not been disabled from February 25, 2010, through the date of the decision, March 24, 2016, Finding 11, id. at 35. The Appeals Council declined to review the decision, id. at 1-4, 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

         The record before the ALJ contained sharply conflicting opinions as to the severity and effects of the plaintiff's mental impairments. Agency nonexamining consultant Mary A. Burkhart, Ph.D., deemed those impairments nonsevere and, therefore, did not assess a mental RFC. See Record at 144; 20 C.F.R. §§ 404.1520a(d)(1) & (3), 416.920a(d)(1) & (3) (“If we rate the degrees of your limitation as ‘none' or ‘mild,' we will generally conclude that your impairment(s) is not severe . . . . If we find that you have a severe mental impairment(s) that neither meets nor is equivalent in severity to any listing, we will then assess your [RFC].”). By contrast, the plaintiff's treating counselor, Richard J. Staples, Ph.D., assessed a number of marked impairments in the mental abilities needed to perform even unskilled work, including, in relevant part, the ability to accept instructions and respond appropriately to criticism from supervisors. See Id. at 759.

         The ALJ stated that she gave “little weight” to both opinions. Id. at 32.

         With respect to the Burkhart opinion, she explained:

[Dr. Burkhart] indicated the [plaintiff]'s impairments were mild and not severe. She considered the previous psychological consultative examination from 2011 in which the [plaintiff]'s intelligence was assessed as average. She determined the [plaintiff] had a learning disorder, not otherwise specified and a depression, not otherwise specified but that he had only mild symptoms related to these impairments. Based on the [plaintiff]'s complaints of not getting along with people[, ] I added a limitation to not working with the public.


         With respect to the Staples opinion, she explained, in relevant part:

The opinion indicates mostly social problems with co-workers, the public and dealing with normal work stress and states the [plaintiff] would miss more than four days of work a month. However, these findings are inconsistent with the medical evidence of record. The [plaintiff] talks about having friends, was adamant that he worked successfully for many years for companies installing drywall[, ] and managed to get along with his family and medical providers. There is no suggestion that the [plaintiff] has had problems getting along with others in the work ...

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