United States District Court, D. Maine
AMANDA M. T., Plaintiff
v.
ANDREW M. SAUL, Commissioner of Social Security,[1] Defendant
MEMORANDUM DECISION [2]
John
H. Rich III United States Magistrate Judge
This
Social Security Disability (“SSD”) 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 ignoring the rebuttal opinion of a
treating physician, Jean Antonucci, M.D., and rejecting the
opinion of an agency examining consultant, David S. Axelman,
M.D. See Itemized Statement of Errors Pursuant to
Local Rule 16.3 Submitted by Plaintiff (“Statement of
Errors”) (ECF No. 8) at 2-4. I agree that the ALJ erred
in ignoring the Antonucci opinion and that the error cannot
fairly be described as harmless. On that basis, I vacate the
commissioner's decision and remand this case for further
proceedings consistent herewith. I need not and do not
address the plaintiff's argument that the ALJ's error
in assessing the Axelman opinion separately warrants remand.
Pursuant
to the commissioner's sequential evaluation process, 20
C.F.R. § 404.1520; 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 December 31, 2015, Finding 1, Record at 14; that,
through her date last insured (“DLI”), she had
the severe impairment of a spine disorder, Finding 3,
id.; that, through her DLI, she had the residual
functional capacity (“RFC”) to perform light work
as defined in 20 C.F.R. § 404.1567(b), except that she
could occasionally stoop, kneel, crouch, crawl, and climb
ramps, stairs, ladders, ropes, and scaffolds, Finding 5,
id. at 16; that, considering her age (35 years old,
defined as a younger individual, as of her DLI), 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 19; and that she,
therefore, had not been disabled from August 29, 2009, her
alleged onset date of disability, through December 31, 2015,
her DLI, Finding 11, id. at 20. The Appeals Council
declined to review the decision, id. at 1-3, making
the decision the final determination of the commissioner, 20
C.F.R. § 404.981; 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); 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); 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
In
assessing the plaintiff's RFC, the ALJ summarized the
record evidence spanning the period from the plaintiff's
alleged onset date of disability, August 29, 2009, through
her DLI, December 31, 2015. See Record at 16-18. She
concluded:
Based on the longitudinal evidence of the objective medical
findings and the [plaintiff]'s activities and response to
treatment, I find insufficient support for a conclusion that
she was disabled for a period of at least 12 consecutive
months at any time from August 2009 through December 2015. I
also note that the [plaintiff] told Jane Glass, D.O., who
examined her in June 2016, that she only used a walking stick
“for distances, ” and wore a lumbar corset when
“standing for long periods of time, ” which is
not consistent with her assertion that she can only stand and
walk for brief periods. She also stated that she was
independent with self-care activities, did all housework
(although at her own pace), enjoyed gardening and was the
primary caregiver for her two-year-old. Dr. Glass concluded
that the [plaintiff] could work 40 hours a week and lift up
to 25 pounds.
Id. at 18 (citation omitted).
The ALJ
then discussed the opinion evidence. See id. She
noted, in relevant part, that she gave “great
weight” to the agency nonexamining consultants'
“determination of the [plaintiff]'s work capacity
because it is consistent with substantial evidence, including
that received after their review[, ]” and “[n]o
weight” to Dr. Axelman's assessment of her work
capacity, which was based on a one-time examination and
unsupported by the evidence. See id. at 18-19.
The ALJ
made no mention of a February 24, 2017, case review by the
plaintiff's treating physician, Dr. Antonucci, responding
to the June 15, 2016, workers' compensation opinion of
Dr. Glass. See id. at 18-19, 2168-69, 2288-98. In
her case review, Dr. Antonucci indicated that she had
“both agreements and disagreement with Dr.
Glass.” Id. at 2168. For example, she stated,
“I cannot imagine that [the plaintiff] can do 40 hours
a week, even if close to home[, ]” explaining,
“She is neither emotionally nor physically capable of
that right now.” Id. She took issue with Dr.
Glass's description of the plaintiff as “fully
functional at home[, ]” observing, “[O]ne is not
fully functional if one has to stop and pace oneself (pacing
is not allowed or expected in the workplace), and getting
everything done at such a slow rate cannot be translated to
being able to work in a full capacity[.]” Id.
She
further stated, in relevant part, that she “would
support 20 h[ou]rs of work a week AFTER [the plaintiff]
finished her current physical therapy regimen and I hear
their evaluation[, ]” suggesting “10 h[ou]rs a
week for several weeks [un]til [the plaintiff] regains her
confidence[.]” Id. at 2169. She added that the
plaintiff “should not under any circumstance bend and
twist frequently as Dr. Glass says - these are terrible
ergonomics for backs[, ]” “should be allowed to
sit and stand and walk - that is she should have a job that
allows all these and frequent changes of position for
comfort[, ]” “should not work in a fast paced
environment where she would be set to fail[, ]” and
“should carry no more than 5 - 10 [pounds] [un]til she
sees that she can.” Id.
As
counsel for the commissioner acknowledged at oral argument,
the ALJ erred in failing to mention the Antonucci opinion.
See, e.g., Nguyen v. Chater, 172 F.3d 31, 35 (1st
Cir. 1999) (“The 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.”)
(citations omitted). However, he contended that the error was
harmless for two reasons.
First,
he noted that Dr. Antonucci expressed an opinion solely as to
the plaintiff's condition subsequent to the relevant time
period, a circumstance in which this court has deemed an
ALJ's error in ignoring an RFC opinion of an examining
physician harmless. See also Defendant's
Opposition to Plaintiff's Statement of Errors
(“Opposition”) (ECF No. 12) at 6-7 (citing
Moody v. Colvin, No. 1:12-cv-281-GZS, 2013 WL
3944287, at *3 (D. Me. July 31, 2013)).[3] However, as the
plaintiff's counsel persuasively argued, this case is
distinguishable from Moody in that, here, the ALJ
herself rendered the Antonucci case review relevant by
relying in part on the Glass opinion, which ...