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Allison P. v. Berryhill

United States District Court, D. Maine

March 24, 2019

ALLISON P., Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          MEMORANDUM 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, as of her date last insured for SSD benefits, of performing past relevant work or, in the alternative, other work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that (i) the ALJ assessed a physical residual functional capacity (“RFC”) that was not supported by substantial evidence, (ii) the ALJ assessed a mental RFC that was not supported by substantial evidence, and, (iii) because of the faulty RFC, the testimony of the vocational expert (“VE”) was flawed and cannot stand as substantial evidence for the ALJ's conclusion of non-disability. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 11) at 5-16. I find no reversible error and, accordingly, affirm the commissioner's decision.

         This court vacated a prior ALJ decision in this case and remanded the matter for further proceedings. See Record at 883. Post-remand, an ALJ held a new hearing on June 14, 2016, at which the plaintiff and a VE testified. See Id. at 908. The ALJ issued a new decision on August 29, 2016. See id. at 897.

         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 June 30, 2012, Finding 1, Record at 885; that, through her date last insured (“DLI”), she had the severe impairments of affective disorder, temporomandibular joint dysfunction, degenerative disc disease of the cervical spine, myofascial pain in the neck and shoulders, and asthma, Finding 3, id.; that, through her DLI, she had the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b) except that she was limited to occasional overhead reaching due to neck and upper extremity dysfunction and occasional exposure to extremes of temperature, humidity, wetness, and concentrated environmental pollutants such as dust, chemicals, and fumes, that she should have minimal changes in work settings and routines and avoid tasks involving a variety of instructions or tasks, and that she was able to understand and carry out simple one- or two-step instructions and understand and carry out “detailed but uninvolved” written or oral instructions involving a few concrete variables in or from standardized situations, but could make judgments only on simple work-related decisions, Finding 5, id. at 887; that, through her DLI, she was capable of performing past relevant work as a Census enumerator, which did not require the performance of work-related activities precluded by her RFC, Finding 6, id. at 894; that, in the alternative, considering her age (50 years old, defined as an individual closely approaching advanced age, on her DLI, June 30, 2012), 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, id. at 895; and that she, therefore, had not been disabled from January 1, 2011, her alleged onset date of disability, through June 30, 2012, her DLI, Finding 7, id. at 896. The Appeals Council declined to assume jurisdiction of the case following remand, id. at 873-76, 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 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); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). 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); Social Security Ruling 82-62 (“SSR 82-62”), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.

         In the alternative, 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); Yuckert, 482 U.S. at 146 n.5; 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. Physical RFC

         The plaintiff argues that the ALJ's limitation to light work is unsupported by substantial evidence because, as a practical matter, she rejected all of the expert opinions of record: those of agency nonexamining consultants Benjamin Weinberg, M.D., and Anthony Pileggi, M.D., that she had no severe physical impairment, and those of treating sources Peggy R. Cyr, M.D., and Ellen Lee, M.D., that she had a sedentary RFC. See Statement of Errors at 5-7. She argues that, therefore, “there is no connection between the ALJ's assessed functional limitations and any particular evidence of record” and that the RFC was “impermissibly based on [the ALJ's] lay assessment of medical evidence.” Id. at 5. She cites, inter alia, Staples v. Berryhill (“Lisa Staples”), No. 1:16-cv-00091-GZS, 2017 WL 1011426 (D. Me. Mar. 15, 2017) (rec. dec., aff'd Mar. 30, 2017), Staples v. Colvin (“Donald Staples II”), No. 2:15-cv-392-DBH, 2016 WL 4146083 (D. Me. Aug. 3, 2016) (rec. dec., aff'd Oct. 6, 2016), and Staples v. Astrue (“Donald Staples I”), Civil No. 09-440-P-S, 2010 WL 2680527 (D. Me. June 29, 2010) (rec. dec., aff'd July 19, 2010), in support of that proposition. See Id. at 7.

         The commissioner distinguishes the Staples cases on the basis that, in this case, the ALJ made a permissible commonsense judgment, gave the plaintiff the benefit of the doubt, and clarified how she derived the specific components of her RFC assessment. See Defendant's Opposition to Plaintiff's Statement of Specific Errors (“Opposition”) (ECF No. 15) at 8-9. The commissioner has the better argument.

         The First Circuit has held that, “since bare medical findings are unintelligible to a lay person in terms of [RFC], the ALJ is not qualified to assess [RFC] based on a bare medical record.” Gordils v. Sec'y of Health & Human Servs., 921 F.2d 327, 329 (1st Cir. 1990). “This principle does not mean, however, that the [commissioner] is precluded from rendering common-sense judgments about functional capacity based on medical findings, as long as [she] does not overstep the bounds of a lay person's competence and render a medical judgment.” Id. See also, e.g., Manso-Pizarro, 76 F.3d at 17 (an ALJ may assess an RFC without relying on a medical opinion when “the medical evidence shows relatively little physical impairment”).

         In all three Staples cases, this court found remand warranted when ALJs rejected all available expert opinions of record and then seemingly construed the raw medical evidence to assess RFC, exceeding the bounds of their competence as laypersons. See Lisa Staples, 2017 WL 1011426, at *4-5; Donald Staples II, 2016 WL 4146083, at *5; Donald Staples I, 2010 WL 2680527, at *3. In all three cases, the court noted that the ALJs had failed to explain how they derived the components of their RFC determinations. See Lisa Staples 2017 WL 1011426, at *8 (observing that, “[i]n the absence of any explanation by the [ALJ] as to how, in deviating from the [agency nonexamining consultants'] opinions, she derived components of her physical RFC, that RFC determination cannot be found to be supported by substantial evidence”); Donald Staples II, 2016 WL 4146083, at *5 (noting that, “when a claimant raises the issue, the connection between a functional limitation included in an RFC and some particular evidence in the record must be apparent” and that “[t]he absence of such a connection demonstrates that the [ALJ] drew a conclusion that either was without support in the evidence or was beyond his capacity as a lay person to draw”); Donald Staples I, 2010 WL 2680527, at *3-4 (observing that the commissioner's argument that the ALJ had “permissibly assessed the plaintiff's mental RFC as of 1992 by crediting, at least in part, his subjective allegations” and other evidence “might have proved persuasive had the [ALJ] clarified how she derived the specific components of her RFC from these sources”).

         Here, the ALJ explained how she arrived at the plaintiff's physical RFC.

         First, she stated that she gave little weight to the Cyr and Lee physical RFC opinions - the only opinion evidence that the plaintiff was more physically limited than she found. See Record at 892-93. The plaintiff does not ...


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