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Holli A. G. v. Berryhill

United States District Court, D. Maine

March 29, 2019

HOLLI A. G., Plaintiff
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant



         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 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.

         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 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).

         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).

         I. Discussion

         The 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.

         Dr. 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 of anxiety.

         Record at 982 (emphasis added).

         As the 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.”).

         Social 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.”).

         Here, 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 harmless.

         The 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 ...

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