United States District Court, D. Maine
NICOLE D. F., Plaintiff
ANDREW M. SAUL, Commissioner of Social Security,  Defendant
REPORT AND RECOMMENDED DECISION
H. RICH III UNITED STATES MAGISTRATE JUDGE.
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 the ALJ erred in determining the functional limitations
stemming from three severe impairments - neck pain,
headaches, and obesity - without the benefit of medical
expertise and, in the case of her obesity, in contravention
of Social Security Ruling 02-1p (“SSR 02-1p”).
See Plaintiff's Statement of Errors
(“Statement of Errors”) (ECF No. 9) at
5-13. I agree that the ALJ's handling of the
plaintiff's obesity fails to comport with SSR 02-1p,
warranting remand. 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. § 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 had the
severe impairments of osteoarthritis, herniated disc with
radiculopathy, status post lumbar laminectomy, headaches,
neck pain, obesity, generalized anxiety disorder with panic
attacks, and depression, Finding 2, Record at 14; that she
had the residual functional capacity (“RFC”) to
perform light work as defined in 20 C.F.R. § 416.967(b),
except that she was limited to three hours of standing or
walking per day but needed to alternate from sitting to
standing or vice versa for five minutes each hour,
could occasionally balance, stoop, kneel, crouch, crawl, or
climb ramps or stairs, could not climb ladders, ropes, or
scaffolds, could tolerate frequent exposure to hazards such
as unprotected heights and sloped or uneven surfaces, was
limited to performing simple, repetitive tasks, could not
tolerate interaction with the general public, could not
tolerate working in large groups, and could tolerate only
occasional change in the work routine, Finding 4,
id. at 15-16; that, considering her age (24 years
old, defined as a younger individual, on the date her
application was filed, December 28, 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, Findings 6-9, id. at 23-24; and that she,
therefore, had not been disabled from December 28, 2012, the
date her application was filed, through April 11, 2018, the
date of the decision, Finding 10, id. at 24-25. 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. § 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. § 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. § 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 filed the instant SSI application on December 28,
2012. See Finding 1, Record at 13. After her claim
was denied both initially and on reconsideration, an ALJ held
a hearing on May 13, 2015, following which, on July 17, 2015,
she issued a decision denying the claim. See id. at
166, 176. The plaintiff appealed that decision to the Appeals
Council, which, by decision dated September 21, 2016,
remanded it to the ALJ for a supplemental hearing. See
id. at 184-85. The plaintiff received notice that a new
hearing had been scheduled for March 21, 2018, at which both
a psychological and a medical expert, as well as a vocational
expert, would appear. See id. at 328, 331, 350, 353.
Prior to the hearing, a new ALJ was assigned to hear the
case. See id. at 65. A psychological expert and a
vocational expert appeared and testified, but no medical
expert appeared. See id. at 63-64. On April 11,
2018, the ALJ issued the instant decision denying the
plaintiff's claim. See Finding 10, id.
at 24-25. In so doing, he gave “great weight” to
the opinion of Dr. Johnson, “who reviewed the medical
evidence at the reconsideration level on January 22,
2014.” Id. at 22 (citation omitted). He
[Dr. Johnson's] opinion was offered after the
[plaintiff]'s lumbar laminectomy and the evidence
submitted since his review does not show much change. He
opined the [plaintiff] could perform a limited range of light
work with occasional postural limits and standing/walking
limited to only three hours. I have adopted most of his
findings but have included additional limitations to the
length of time she could stand/walk and have provided for her
to have a sit/stand option that would accommodate her
complaints of pain with prolonged sitting/standing.
plaintiff notes, see Statement of Errors at 3, the
bulk of the medical evidence of record, including that
pertaining to her neck disorder, obesity, and headaches, was
submitted after Dr. Johnson's review, see Record
at 30-33. Dr. Johnson found that the plaintiff had a severe
impairment of spine disorders and assessed limitations
related to her lumbar spine. See id. at 155, 157-59.
He did not note review of any records pertaining to her
cervical spine, obesity, or headaches. See id. at
plaintiff observes, see Statement of Errors at 10
n.12, she reported to treating nurse practitioner Susan
Chessa, F.N.P., on March 15, 2016, that she had gained 80
pounds in the prior year, and F.N.P. Chessa determined that
she had a Body Mass. Index (“BMI”) of 39.6,
see Record at 934-95. On April 5, 2017, F.N.P.
Chessa recorded a BMI of 36.7. See id. at 1032. Both
findings placed the plaintiff in the second-highest of three
levels of obesity. See SSR 02-1p, reprinted in
West's Social Security Reporting Service Rulings
1983-1991 (Supp. 2018), at 250. Without discussion, the ALJ
deemed the plaintiff's obesity severe. See
Finding 2, Record at 14. He did not address obesity in
determining her RFC. See id. at 16-23.
plaintiff contends that, in the absence of an expert's
consideration of the impact of her obesity, “the record
was legally insufficient to support whatever conclusions the
ALJ reached as to how the added contribution of [her]
significant post-surgery weight gain further limited her
ability to perform such physical functions as lifting and
carrying, standing and walking, bending, stooping, etc.[,
]” which is not readily apparent to a layperson.
Statement of Errors at 10-11 (footnote omitted). She adds
that the ALJ failed to follow ...