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Gina C. v. Berryhill

United States District Court, D. Maine

December 31, 2018

GINA C., Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          REPORT AND RECOMMENDED DECISION [1]

          John H. Rich III United States Magistrate Judge.

         This Social Security Disability (“SSD”) 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 a number of bases, including that the ALJ failed to (i) comply with an Appeals Council remand order, (ii) address an opinion of her longtime treating provider, Penny DeRaps, FNP-C, Ph.D., concerning her ability to perform work-related mental activities, and (iii) enlist the aid of a medical advisor to resolve ambiguities in inferring her onset date of disability, as required by Social Security Ruling 83-20 (“SSR 83-20”). See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 13) at 5-17.

         The commissioner concedes that the ALJ erred in failing to address the DeRaps opinion, but argues that the error was harmless. See Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 17) at 15-17. I disagree, concluding that the error, which also transgressed a directive by the Appeals Council and called into question the ALJ's compliance with SSR 83-20, was not harmless. Accordingly, I recommend that the court vacate the commissioner's decision and remand this case for further proceedings. 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; 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 September 30, 2009, Finding 1, Record at 1798; that, through her date last insured (“DLI”), she had the severe impairments of regional pain syndrome of the bilateral upper extremities, major depressive disorder, anxiety disorder not otherwise specified, and a polysubstance abuse disorder, Finding 3, id; that, through her DLI, she had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b), except that she could never climb ladders, ropes, or scaffolds, could occasionally crawl (limits related to her regional pain syndrome), could perform simple jobs with simple instructions and limited changes, and could occasionally interact with the general public as well as with supervisors and coworkers (limits related to her affective, anxiety, and substance abuse disorders), Finding 5, id. at 1800; that, through her DLI, considering her age (38 years old, defined as a younger individual, on her DLI), 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 she could perform, Findings 7-10, id. at 1809-10; and that she, therefore, had not been disabled from March 1, 2007, her alleged onset date of disability, through September 30, 2009, her DLI, Finding 11, id. at 1811. The Appeals Council declined to assume jurisdiction of the case following remand, id. at 1782-85, making the decision the final determination of the commissioner, 20 C.F.R. § 404.984(a), (b)(2); 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); 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 her past relevant work. 20 C.F.R. § 404.1520(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

         A. Background

         The instant application for SSD benefits, filed on August 19, 2008, see Record at 113, has been the subject of two prior remands. On September 8, 2011, for reasons not at issue here, the Appeals Council vacated an ALJ's unfavorable May 26, 2011, decision and remanded this case for further proceedings. See id. at 145-46. On November 18, 2014, this court vacated the ALJ's second unfavorable decision, dated March 1, 2013, and remanded this case for further proceedings. See id. at 1865-67, 1887-88.

         In the interim, on February 12, 2013, the plaintiff filed an application for Supplemental Security Income (“SSI”) benefits, which was granted on June 5, 2013, effective as of her SSI filing date of February 12, 2013. See id. at 1892; Attach. 1 (“SSI Decision”) (ECF No. 17-1) to Statement of Errors.[2] That favorable determination was premised on a May 29, 2013, finding by agency nonexamining consultant Brian Stahl, Ph.D., that the plaintiff's mental health impairments met the criteria of Listing 12.06 (Anxiety-Related Disorders), Appendix 1 to 20 C.F.R. Part 404, Subpart P (the “Listings”). See SSI Decision at Page ID ## 2387-88.

         On July 23, 2015, in the wake of this court's remand premised on the second unfavorable SSD decision, the Appeals Council upheld the determination that the plaintiff was disabled as of February 12, 2013, (ii) vacated the second unfavorable SSD decision in accordance with this court's order, and (iii) remanded this case for resolution by a different ALJ. See Record at 1892-95. Following a hearing during which, inter alia, impartial medical expert James M. Claiborn, Ph.D., testified concerning the plaintiff's mental impairments, a new ALJ issued the instant unfavorable decision on April 13, 2016. See Id. at 1794-1811.

         B. The DeRaps Opinion

         In her January 24, 2013, opinion concerning the plaintiff's ability to perform work-related mental activities, Dr. DeRaps checked boxes indicating that, in her professional opinion, “from December 31, 2001 to the present[, ]” the plaintiff's symptoms, disorders, and/or side effects of medication rendered her markedly limited in, or effectively precluded from performing, a number of activities, including maintaining attention and concentration sufficient to perform work tasks throughout an eight-hour workday, sustaining an ordinary routine without special supervision, working in coordination with or proximity to others without being distracted by them, completing a normal workday and workweek without interruptions from psychologically-based symptoms, and performing at a consistent pace without an unreasonable number and length of rest periods. Id. at 1773-74.

         In both her brief and at oral argument, the commissioner conceded that the ALJ erred in ignoring this opinion. See, e.g., Opposition at 15-17. Thus, the only ...


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