United States District Court, D. Maine
LEVY CHIEF U.S. DISTRICT JUDGE
B. challenges the final administrative decision of the Social
Security Administration Commissioner which determined that
Andrea B. was not disabled and affirmed the denial of her
application for disability insurance benefits. Andrea B.
seeks remand on the basis that the determination of her
residual functional capacity (“RFC”) was flawed.
I conclude that the Appeals Council's RFC determination
was supported by substantial evidence. Accordingly, the
administrative decision is affirmed.
Commissioner's final decision is the September 11, 2018,
decision of the Appeals Council upholding the administrative
law judge's (“ALJ”) decision. See
ECF No. 6-2 at 5-9. The ALJ's decision tracked the
familiar five-step sequential evaluation process for
analyzing social security disability claims. See 20
C.F.R. § 404.1520 (West 2019). The claimant carries the
burden of production on the first four steps, and the burden
shifts to the Commissioner at Step 5. Purdy v.
Berryhill, 887 F.3d 7, 9-10 (1st Cir. 2018). The five
steps proceed as follows:
1) if the applicant is engaged in substantial gainful work
activity, the application is denied; 2) if the applicant does
not have, or has not had within the relevant time period, a
severe impairment or combination of impairments, the
application is denied; 3) if the impairment meets the
conditions for one of the “listed” impairments in
the Social Security regulations, then the application is
Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001).
If the impairment does not meet a listed impairment at Step
3, the ALJ must, as an interim step, determine the
claimant's “residual functional capacity, ”
§ 404.1520(a)(4), (e), which is the most a claimant can
still do despite their limitations. § 416.945(a)(1). The
RFC is used to assess Step 4 and Step 5:
4) [I]f the applicant's “residual functional
capacity” is such that he or she can still perform past
relevant work, then the application is denied; 5) if the
applicant, given his or her residual functional capacity,
education, work experience, and age, is unable to do any
other work, the application is granted.
Seavey, 276 F.3d at 5. Put differently, the steps
ask (1) was the claimant working during the period of
disability, (2) did they have a severe impairment during that
period, (3) did the impairment impose limitations that the
Social Security Administration deems per se
disabling, (4) if not, could the claimant still do their past
jobs given their maximum capacity to engage in mental and
physical work, and (5) if not, were there any jobs the
claimant could perform?
1, the ALJ found that Andrea B. had not engaged in
substantial gainful activity during the disability period.
ECF No. 6-2 at 21. At Step 2, the ALJ found that Andrea B.
had the following severe impairments: osteoarthritis, chronic
fatigue, obesity, obsessive compulsive disorder, depression,
and post-traumatic stress disorder. Id. At Step 3,
the ALJ found that Andrea B.'s impairments did not meet
or medically equal the severity of an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1. Id. at
22-24. The ALJ was therefore required to make a determination
of Andrea B.'s RFC before Step 4, and he found that she
had the RFC to perform light work with the following
[S]he is capable of lifting and carrying 20 pounds
occasionally and 10 pounds frequently. She must be able to
stretch or change position, such as the freedom of a
sit-stand option to be exercised at her sole discretion
throughout the day. She is able to walk up to four hours with
normal breaks. She can occasionally climb ramps and stairs,
but can never climb ladders ropes or scaffolds. She can
occasionally balance, stoop, kneel, crouch and crawl. She
should avoid concentrated exposure to extreme cold. She
should avoid all exposure to unprotected heights. Lastly, she
is limited to a low stress work environment with only simple,
routine, repetitive tasks and no interaction with the public.
Id. at 24-31. Based on that RFC, the ALJ found at
Step 4 that Andrea B. was unable to perform any past relevant
work. Id. at 31. At Step 5, however, he found that
there were jobs that exist in significant numbers in the
national economy that she could perform. Id. at
31-33. The ALJ therefore concluded that Andrea B. was not
disabled during the alleged period of disability, and denied
her disability insurance benefits. Id. at 33.
B. asked the Appeals Council to review the ALJ's
decision. The Appeals Council agreed with the ALJ's
conclusion that Andrea B. was not disabled during the alleged
period of disability but found that the ALJ's evaluation
of the opinion evidence of Dr. Harold Van Lonkhuyzen, a
psychiatrist, was not supported by substantial evidence. In
making his mental RFC determination, the ALJ gave
“significant” weight to the 2017 opinion of Dr.
Van Lonkhuyzen. ECF No. 6-2 at 29. Dr. Van Lonkhuyzen's
opinion included a finding that Andrea B. could not deal with
changes in a routine work setting, which would support an
ultimate finding of disability. Id. However, the
ALJ's decision did not include that limitation in the RFC
despite giving Dr. Van Lonkhuyzen's opinion significant
weight. Thus, as the Commissioner acknowledges, the ALJ
decision had an inherent conflict: “The ALJ gave
significant weight to Dr. Van Lonkhuyzen's opinion, but
did not incorporate or explain the reason for failing to
incorporate the purported inability to deal with changes in a
routine work setting.” ECF No. 10 at 2. The Appeals
Council resolved this conflict by affording
“little” weight to Dr. Van Lonkhuyzen's 2017
opinion that Andrea B. could not deal with changes in a
routine work setting. ECF No. 6-2 at 6.
STANDARD OF REVIEW
administrative decision must be affirmed if it 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 Health & Human Servs., 76 F.3d 15, 16
(1st Cir. 1996) (per curiam). Substantial evidence is
evidence that a reasonable mind might accept as adequate to
support a finding. Biestek v. Berryhill, 139 S.Ct.
1148, 1154 (2019); Applebee v. Berryhill, 744
Fed.Appx. 6 (1st Cir. 2018) (per curiam). “The
ALJ's findings of fact are conclusive when supported by
substantial evidence, but are not conclusive when ...