United States District Court, D. Maine
REPORT AND RECOMMENDED 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 bases
that the ALJ erred in rejecting the opinions of all medical
experts of record that she had a reaching limitation,
ignoring post-hearing evidence documenting the existence of
bilateral carpal tunnel syndrome, and crafting her mental
residual functional capacity (“RFC”).
See Plaintiff's Itemized Statement of Errors
(“Statement of Errors”) (ECF No. 11) at 3-13. I
agree that the ALJ's omission of a reaching limitation is
unsupported by substantial evidence and, on that basis,
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.
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, 2016, Finding 1, Record at 35;
that she had the severe impairments of degenerative disc
disease (“DDD”), bipolar disorder, generalized
anxiety disorder, post-traumatic stress disorder, and alcohol
dependence, Finding 3, id. at 36; 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 was
precluded from all but occasional postural adaptation
(stooping, kneeling, crouching, crawling, balancing, or
climbing ramps and stairs), could have no exposure to hazards
such as unprotected heights and dangerous machinery, could
not climb ladders, scaffolds, and ropes, was relegated to
simple, routine, repetitive tasks involving no more than
occasional exercise of independent judgment or discretion or
occasional changes in work processes, and could have no
interaction with the general public, Finding 5, id.
at 40-41; that, considering her age (49 years old, defined as
a younger individual, on her alleged disability onset date,
September 23, 2013), 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 51; and that she, therefore, had not been
disabled from September 23, 2013, her alleged onset date of
disability, through the date of the decision, April 5, 2017,
Finding 11, id. at 52-53. 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).
record contained four expert opinions bearing on the
plaintiff's physical RFC as of the relevant time period.
March 19, 2015, report, agency examining consultant Robert N.
Phelps Jr., M.D., indicated, in relevant part, that the
plaintiff's medical records documented “significant
cervical disc problems” and that she had
“[p]inched nerves in neck due to cervical disc disease
with numbness of the right arm by history with an exam
showing diffuse right trapezial, clavicular,
acromio-clavicular joint and scapular tenderness to
palpation, markedly limited cervical flexion and extension,
markedly limited cervical rotation, especially to the right
with pain, markedly positive Spurling's test, [and]
diffuse right arm weakness[.]” Record at 466. He also
noted “[m]arkedly limited range of motion of the
shoulders with pain[.]” Id. He concluded that
the plaintiff's “ability to reach” was
“severely limited bilaterally[.]” Id. at
assessments dated March 26, 2015, and October 27, 2015,
respectively, agency nonexamining consultants Richard T.
Chamberlin, M.D., and J.H. Hall, M.D., both described the
plaintiff's ability to reach overhead as
“[l]imited[, ]” explaining, “No reaching
overhead with either upper extremity to avoid hyperextension
of the neck.” Id. at 127-28, 159-60.
the plaintiff's treating physician, Rosalind Waldren,
M.D., completed a Medical Source Statement of Ability To Do
Work-Related Activities (Physical) dated April 8, 2015, in
which she indicated that the plaintiff could reach only
occasionally. See id. at 590.
gave “great weight, with some modification, ” to
the Hall assessment, explaining that he had “not
adopted Dr. Hall's finding of no overhead reaching
bilaterally, as it [wa]s not supported by the evidence of
record overall, including the [plaintiff]'s lack of
objective radiculopathy or upper extremity dysfunction,
physical activities, and her work history, including her work
as a painter at the medium work capacity with no intervening
objective worsening of her DDD, as detailed in this
Decision.” Id. at 45-46 (citation omitted).
accorded “less weight” to the Chamberlin
assessment and “very little weight” to both the
Waldren and Phelps assessments, deeming them inconsistent
with the evidence as a whole, including the objective medical
evidence and the plaintiff's work history and daily
activities. Id. at 46, 48.
the ALJ gave “some weight” to a December 17,
2012, assessment by agency examining consultant Robert
Charkowick, D.O., that the plaintiff was generally healthy
and had no work-related physical restrictions, which, in the
ALJ's view, “underscore[d] the disparity between
the [plaintiff]'s subjective report of her symptoms and
her overall unremarkable physical examination at that time,
as well as the unreliability of [her] self-report
overall.” Id. at 48-49 (citation omitted),
446. However, he acknowledged that the Charkowick report
preceded the plaintiff's alleged onset date of disability
and, therefore, was “of limited probative value in
assessing [her] functional abilities during the relevant time
period” and was “not adopted[.]”
Id. at 48-49.
“ALJ's findings of fact are conclusive when
supported by substantial evidence, but are not conclusive
when derived by ignoring evidence, misapplying the law, or
judging matters entrusted to experts.” Nguyen v.
Chater,172 F.3d 31, 35 (1st Cir. 1999) (citations
omitted). “With a few exceptions . . ., an ALJ, as a