United States District Court, D. Maine
HOLLI A. G., Plaintiff
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant
MEMORANDUM DECISION 
H. RICH III UNITED STATES MAGISTRATE JUDGE.
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 ignored the medical opinion
of an agency examining consultant. See Statement of
Specific Errors (“Statement of Errors”) (ECF No.
13) at 5-7. I agree and, accordingly, 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.
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, 2011, Finding 1, Record at
119; that she had the severe impairments of chronic pain,
bilateral foot pain, bilateral knee pain due to mild
degenerative joint disease, edema, restless leg syndrome,
sleep apnea, morbid obesity, anxiety with agoraphobia,
depression, post-traumatic stress disorder, and borderline
intellectual functioning, Finding 3, id. at 120;
that she had the residual functional capacity
(“RFC”) to perform sedentary work as defined in
20 C.F.R. §§ 404.1567(a) and 416.967(a), except
that she was limited to occasional climbing, balancing,
stooping, kneeling, crouching, and crawling, and occasional
performance of foot control operations bilaterally, had to
avoid exposure to extreme cold, extreme heat, wetness,
humidity, concentrated fumes, odors, dust, gases, poorly
ventilated areas, concentrated chemicals, moving machinery,
and unprotected heights, and was limited to simple, unskilled
work in a low-stress job with only occasional decision-making
and only occasional changes in the work setting and no
interaction with the public as a basic part of job
responsibilities, although she could tolerate occasional
interaction with coworkers and supervisors, Finding 5,
id. at 122-23; that, considering her age (36 years
old, defined as a younger individual, on her alleged
disability onset date, March 1, 2011), 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 129; and that she, therefore,
had not been disabled from March 1, 2011, her alleged onset
date of disability, through the date of the decision,
February 7, 2017, Finding 11, id. at 130. 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).
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).
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).
plaintiff argues that the ALJ committed reversible error in
failing to consider the opinion of agency examining
consultant David Axelman, M.D. See Statement of
Errors at 5-7.
Axelman's report concludes with the following assessment:
The [plaintiff]'s ability to do work-related activities
has been clearly affected by the lower extremity
abnormalities, as well as her psychological issues. She
has about an hour of sitting that she seems capable of
doing. Standing and walking, as well as lifting,
squatting, and bending are much more limited. She can flex at
the waist about 80 degrees, although uncomfortable. She
cannot squat. She has no major difficulty handling objects or
hearing, but traveling is limited. She does not drive because
at 982 (emphasis added).
plaintiff points out, “an individual who is not capable
of sitting more than one hour in an eight-hour work day on a
consistent, ongoing basis would not be able to perform
sedentary work.” Statement of Errors at 6-7; 20 C.F.R.
§§ 404.1567(a); 416.967(a) (“a sedentary job
is defined as one which involves sitting”); Social
Security Ruling 96-9p, reprinted in West's Social
Security Reporting Service Rulings 1983-1991 (Supp.
2018) (“SSR 96-9p”), at 157 (“If an
individual is unable to sit for a total of 6 hours in an
8-hour work day, the unskilled sedentary occupational base
will be eroded. The extent of the limitation should be
considered in determining whether the individual has the
ability to make an adjustment to other work.”).
Security regulations mandate that an ALJ “always
consider the medical opinions” of record. 20 C.F.R.
§§ 404.1527(b), 416.927(b). As this court has
noted, “an [ALJ] may not simply ignore the opinions of
treating sources or [agency] expert consultants, but must
take them into consideration and explain the weight accorded
them.” Kelly v. Astrue, Civil No. 09-78-B-W,
2009 WL 3152796, at *3 (D. Me. Sept. 28, 2009) (rec. dec.,
aff'd Oct. 20, 2009); see also, e.g.,
20 C.F.R. §§ 404.1513a(b)(1), 416.913a(b)(1) (while
ALJs are not required to adopt the findings of agency
consultants, “they must consider” them because
such consultants “are highly qualified and experts in
Social Security disability evaluation”); Social
Security Ruling 96-8p, reprinted in West's Social
Security Reporting Service Rulings 1983-1991 (Supp.
2018) (“SSR 96-8p”), at 149 (“The RFC
assessment must always consider and address medical source
opinions. If the RFC assessment conflicts with an opinion
from a medical source, the adjudicator must explain why the
opinion was not adopted.”).
the ALJ failed to mention Dr. Axelman in his decision.
See Record at 123-28. As a result, the court cannot
discern whether he “reached a supportable result
via an acceptable analytical pathway[.]”
Picard v. Berryhill, No. 2:16-cv-00636-JHR, 2018 WL
1370681, at *3 (D. Me. Mar. 16, 2018). Because the adoption
of Dr. Axelman's opinion would have precluded the
plaintiff from performing sedentary work, the error is not
commissioner raises several arguments in defense of the
error, see Defendant's Opposition to
Plaintiff's Statement of Errors
(“Opposition”) (ECF No. 15) at 3-6, all of which
are unavailing. She suggests that the ALJ did, in fact,
discuss Dr. Axelman's report by “indicat[ing] that
there were no medical opinions from examining physicians that
endorsed greater limitations than those included in the
assessed RFC.” Id. at 4 (citing Record at
128). Indeed, the ALJ cited a range of exhibits (1F through
27F), one of which is the Axelman report (11F), for the
proposition that “the record does not contain any
opinion from ...