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Kristal L. v. Berryhill

United States District Court, D. Maine

February 8, 2019

KRISTAL L., 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”) 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, among other things, the ALJ's mental residual functional capacity (“RFC”) determination is unsupported by substantial evidence. See Plaintiff's Statement of Errors (“Statement of Errors”) (ECF No. 15) at 14-15. I agree and, accordingly, recommend that the court 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, 2019, Finding 1, Record at 55; that she had the severe impairments of obesity, type 2 diabetes, chronic myofascial pain, fibromyalgia, depression and post-traumatic stress disorder (“PTSD”), Finding 3, id.; that she had the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that she had to be allowed to alternate between sitting and standing and/or walking every hour, but would not need to leave the work station, could occasionally reach overhead and operate foot controls, could occasionally climb ramps and stairs, stoop, and crouch, could never climb ladders, ropes, or scaffolds, kneel, crawl, or work near unprotected heights or dangerous machinery, could attend and concentrate for two-hour blocks of time, could have no more than minimal changes in work settings and routines, needed to avoid work involving a variety of instructions or tasks but could understand and carry out simple one-and two-step instructions, could understand and carry out “detailed but uninvolved” written or oral instructions involving a few concrete variables from standardized situations, could make simple work-related decisions, and could not do work that required interaction with the public, Finding 5, id. at 57; that, considering her age (35 years old, defined as a younger individual, on her alleged disability onset date, May 30, 2014), 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 59; and that she, therefore, had not been disabled from May 30, 2014, her alleged disability onset date, through the date of the decision, February 15, 2017, Finding 11, id. at 60-61. 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 her 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).

         The statement of errors also implicates Step 4 of the sequential evaluation process, at which stage the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f); Yuckert, 482 U.S. at 146 n.5. At this step, the commissioner must make findings of the plaintiff's RFC and the physical and mental demands of past work and determine whether the plaintiff's RFC would permit performance of that work. 20 C.F.R. §§ 404.1520(f), 416.920(f); Social Security Ruling 82-62 (“SSR 82-62”), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.

         I. Discussion

         Among other arguments, the plaintiff seeks remand on the basis that, in determining her mental RFC, the ALJ improperly relied on the opinion of an agency nonexamining consultant, David R. Houston, Ph.D., that was superseded by material new evidence and, after rejecting the opinion of treating mental health provider Terri Quatrano-Simpson, L.C.S.W., filled the void by interpreting raw medical evidence. See Statement of Errors at 2, 4, 14-15; see also, e.g., Gordils v. Sec'y of Health & Human Servs., 921 F.2d 327, 329 (1st Cir. 1990) (Although an ALJ is not precluded from “rendering common-sense judgments about functional capacity based on medical findings, ” she “is not qualified to assess residual functional capacity based on a bare medical record.”).

         The commissioner contends that remand is unwarranted because (i) the plaintiff fails to identify what evidence the ALJ wrongly interpreted or any “limitations the ALJ should have included[, ]” (ii) “the ALJ did not use her own lay judgment in arriving at the RFC, ” but, rather, relied on the Houston opinion, (iii) the ALJ explained that observations of the plaintiff's mental status were not supportive of a conclusion that she lacked the abilities described in the RFC finding, (iv) the plaintiff has presented no evidence, apart from a new diagnosis of PTSD, that she had any symptoms or limitations different from those addressed by Dr. Houston, whose consideration of her anxiety necessarily included consideration of PTSD symptoms, and (v) the plaintiff has not separately challenged either the ALJ's discounting of her subjective statements or her assignment of little weight to the Quatrano-Simpson opinion. Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 16) at 14-17.

         I conclude that the ALJ's assessed mental RFC is unsupported by substantial evidence, warranting remand.

         “[T]he amount of weight that can properly be given the conclusions of non-testifying, nonexamining physicians will vary with the circumstances, including the nature of the illness and the information provided the expert.” Rose v. Shalala, 34 F.3d 13, 18 (1st Cir. 1994) (citations and internal quotation marks omitted). “In some cases, written reports submitted by nontestifying, nonexamining physicians cannot alone constitute substantial evidence, although this is not an ironclad rule.” (citations and internal quotation marks omitted).

         “This court has noted that there is no bright-line test of when reliance on a nonexamining expert consultant is permissible in determining a claimant's physical or mental RFC, although factors to be considered include the completeness of the consultant's review of the full record and whether portions of the record unseen by the consultant reflect material change or are merely cumulative or consistent with the preexisting record and/or contain evidence supportably dismissed or minimized by the [ALJ].” LaFlamme v. Colvin, No. 1:14-cv-57-DBH, 2015 WL 519422, at *8 (D. Me. Feb. 6, 2015) (citation and internal punctuation omitted).

         When the plaintiff filed her concurrent SSD and SSI applications on July 3, 2014, she claimed disability based on a combination of physical and mental impairments, identifying depression, anxiety, panic disorder, and attention-deficit hyperactivity disorder as the mental conditions on which her claim was based. See Record at 341, 355. In his January 2, 2015, assessment, Dr. Houston found that the medical evidence of record supported a diagnosis of depression, which he deemed severe. See id. at 347, 361 (assessing mild restriction in activities of daily living, moderate difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence, or pace, and no episodes of decompensation). He then assessed the plaintiff's mental RFC, finding her capable of carrying out simple, but not complex, tasks in a normal schedule, interacting appropriately with co-workers and supervisors but not with the public, and adapting to simple changes in routine. See id. at 349-51, 363-65.

         The ALJ's RFC determination comports with the Houston assessment. She deemed the plaintiff capable of attending and concentrating for two-hour blocks of time with no more than minimal changes in work settings and routines, understanding and carrying out simple one- and two-step instructions and “detailed but uninvolved” written or oral instructions involving a few concrete variables from standardized situations, and ...


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