United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
H. Rich III United States Magistrate Judge.
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.
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.
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.
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).
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).
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.
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. 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.
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.
The DeRaps Opinion
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.
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 ...