United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
C. Nivison, U.S. Magistrate Judge
Plaintiff's application for disability insurance benefits
under Title II of the Social Security Act, Defendant, the
Social Security Administration Commissioner, found that
Plaintiff has severe impairments, but retains the functional
capacity to perform substantial gainful activity. Defendant,
therefore, denied Plaintiff's request for disability
benefits. Plaintiff filed this action to obtain judicial
review of Defendant's final administrative decision
pursuant to 42 U.S.C. § 405(g).
a review of the record, and after consideration of the
parties' arguments, I recommend the Court vacate the
administrative decision and remand the matter for further
Commissioner's final decision is the March 28, 2018,
decision of the Administrative Law Judge. (ALJ Decision, ECF
No. 7-2.) The ALJ's decision tracks the familiar
five-step sequential evaluation process for analyzing social
security disability claims, 20 C.F.R. §§ 404.1520,
found that Plaintiff has severe, but non-listing-level
impairments consisting of right shoulder degenerative joint
disease, cervical spine degenerative disc disease, depressive
disorder, and general anxiety disorder. (R. 19, 21.) The ALJ
determined that Plaintiff's mental impairments result in
moderate limitations in interacting with others,
concentrating, persisting, or maintaining pace. (R. 22.) The
ALJ also found Plaintiff has the residual functional capacity
(RFC) to perform light work; climb, stoop, kneel, crouch, and
crawl on a frequent but not constant basis; work overhead
with his right arm on a frequent, but not constant basis;
work with supervisors and coworkers, but never with the
public; and adapt to simple changes in work routine. (R. 23.)
ultimately concluded that Plaintiff could not return to past
relevant work, but could perform other substantial gainful
activity, including specific jobs existing in significant
numbers in the national economy. (R. 29-30.)
must affirm the administrative decision provided the decision
is based on the correct legal standards and is supported by
substantial evidence, even if the record contains evidence
capable of supporting an alternative outcome.
Manso-Pizarro v. Sec'y of HHS, 76 F.3d 15, 16
(1st Cir. 1996) (per curiam); Rodriguez Pagan v.
Sec'y of HHS, 819 F.2d 1, 3 (1st Cir. 1987).
Substantial evidence is evidence that a reasonable mind might
accept as adequate to support a finding. Richardson v.
Perales, 402 U.S. 389, 401 (1971); Rodriguez v.
Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981).
“The ALJ's findings of fact are conclusive when
supported by substantial evidence, but they 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).
argues the ALJ erred because she did not properly consider
the Department of Veterans Affairs (VA) disability ratings
when assessing Plaintiff's RFC. Plaintiff also contends
the ALJ did not consider her step 3 “moderate”
concentration, persistence, and pace finding when she made
her RFC finding, and failed to consider or discuss material
opinion evidence in the record. (Statement of Errors, ECF No.
assessed Plaintiff to have a disability rating for his right
shoulder and depression. (R. 633 - 645.) VA rating decisions
are entitled to “some weight.”
Genness-Bilecki v. Colvin, No. 1:15-cv-387-JHR, 2016
WL 4766229, at *2 - 3 (D. Me. Sept. 13, 2016). In this case,
after acknowledging that Plaintiff was in receipt of VA
compensation, the ALJ's discussion of the VA rating
consisted of the following:
[A] disability decision by another governmental agency is
based upon that agency's rules and is neither
dispositive nor binding upon me (emphasis added). While I am
grateful for the claimant's military service, there are
very different factors involved in this Administration's
determination of disability, the finding of which is reserved
to the Commissioner. (20 CFR §§ 404.1504 and
To wit, the VA expresses disability as a percentage of
diminished earning capacity that varies with the severity of
a veteran's medical condition, and applied to a
hypothetical average person's ability to earn income. In
contrast, this Agency does not assess degrees of disability,
but uses the 5-step sequential process applied herein to find
if a person cannot perform any past work or any other
substantial gainful work in the national ...