THERIAULT v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 18

MEMORANDUM OF DECISION Re: 12 SS Statement of Errors/Fact Sheet. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MARY ELLEN THERIAULT,
Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Defendant

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1:14-cv-00309-JCN

MEMORANDUM OF DECISION1

In this action, Plaintiff Mary Ellen Theriault seeks judicial review of the administrative
denial of her application for disability insurance benefits under Title II of the Social Security Act.
Defendant Social Security Administration Acting Commissioner found that Plaintiff has severe
impairments, but retains the functional capacity to perform substantial gainful activity through her
December 31, 2006, date last insured.

Defendant, therefore, denied Plaintiff’s request for

disability benefits.
As explained below, following a review of the record and after consideration of the parties’
written and oral arguments, the Court remands the matter for further proceedings.
THE ADMINISTRATIVE FINDINGS
The Commissioner’s final decision is the April 4, 2014, decision of the Administrative Law
Judge (ALJ).2 The ALJ’s decision (ECF No. 10-9) tracks the familiar five-step sequential

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The parties have filed a consent authorizing the undersigned to conduct any and all proceedings and enter a final
order and judgment in this matter.
The Appeals Council found that Plaintiff failed to raise timely exceptions to the ALJ’s decision. (PageID # 374,
378.)
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evaluation process for analyzing social security disability claims, 20 C.F.R. § 404.1520.
Defendant previously requested and obtained a voluntary remand of this matter to permit the ALJ
to evaluate further Plaintiff’s obesity in accordance with Social Security Ruling 02-1p.3
The ALJ found that Plaintiff has severe, but non-listing level impairments consisting of
obesity, peripheral vascular disease with bilateral lower extremity claudication, and mild
degenerative disk disease. The ALJ assessed Plaintiff’s residual functional capacity (RFC) and
determined that she retained the capacity for sedentary work as defined in 20 C.F.R. § 404.1567(a),
subject to a two-hour limitation on standing and walking, a six-hour limitation on sitting,
occasional postural limitations, and certain upper and lower extremity push/pull restrictions.
The ALJ concluded that the RFC does not permit Plaintiff to return to her past relevant
work. The ALJ, however, found that someone with Plaintiff’s RFC and vocational profile
(younger individual with a high school education) could perform other work. In reaching this
conclusion, the ALJ relied on Medical-Vocational Guideline 201.21 and vocational expert
testimony that the RFC would not significantly erode the unskilled sedentary occupational base.
The ALJ, therefore, determined that Plaintiff was not disabled.
DISCUSSION
Plaintiff argues that the ALJ erred because he failed to account for the full degree of
limitation caused by Plaintiff’s vascular disease and related claudication. More specifically,
Plaintiff argues (1) that the ALJ should have given great weight to the RFC opinion provided by
long-term treating source Cathal Kavanaugh, D.O., and (2) that the ALJ relied on raw medical data
by independently evaluating the significance of certain statements offered by Dr. Kavanaugh
regarding the impact of smoking on Plaintiff’s symptoms after her date last insured.

Plaintiff’s current Statement of Errors does not include an argument regarding the sufficiency of the ALJ’s
consideration of obesity.
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A. Standard of Review
The Court must affirm the administrative decision provided that the ALJ applied the correct
legal standards and that the decision 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).
B. Analysis
Plaintiff challenges the ALJ’s failure to impose greater restrictions based on Plaintiff’s
vascular disease. The ALJ reviewed the medical records related to Plaintiff’s vascular disease and
the expert opinion evidence of record offered by Dr. Kavanaugh (Exhs. 13F & 19F) and the state
agency consulting physician, Donald Trumbull, M.D. (Exh. 11F). The ALJ’s RFC finding differs
from the physicians’ assessments. Although an ALJ is permitted to make RFC findings that are
not specifically endorsed by an expert (e.g., the ALJ gives the claimant the “benefit of the doubt”),
the record must contain reliable opinion evidence that would support an RFC finding that is equal
to or greater than the ALJ’s finding. Pierce v. Astrue, No. 1:10-CV-242-JAW, 2011 WL 2678919,
at *6 (D. Me. July 7, 2011) report and recommendation adopted over objection, 2011 WL 3270251
(July 29, 2011) (discussing “benefit of the doubt” findings).
Here, Dr. Trumbull’s opinion does not support the ALJ’s finding because the Defendant

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has acknowledged that Dr. Trumbull never reviewed any records regarding one of Plaintiff’s
impairments. (Def.’s Response at 9 n.6: “Dr. Trumbull, did not consider any evidence of Plaintiff’s
claudication/peripheral vascular disease as he reviewed only limited medical evidence dating from
2002 to 2004.”) 4 The ALJ afforded Dr. Trumbull’s opinion “little weight,” and attributed “no
weight” to the treating physician’s opinion because he found Dr. Kavanaugh’s reasoning
unpersuasive or insufficient.
Assuming, arguendo, that the ALJ articulated sound reasons for refusing to adopt Dr.
Kavanaugh’s opinion, the record nevertheless lacks an expert opinion that supports the ALJ’s RFC
finding. The record reflects that no expert has fully assessed the relevant medical records and
determined that as of her date last insured, Plaintiff had capacity equal to or greater than the
capacity assessed by the ALJ.5 In the absence of such an opinion to support the ALJ’s RFC finding,
the ALJ effectively judged matters entrusted to experts6 and, consequently, the vocational expert’s
testimony regarding the impact of the RFC on the sedentary occupational base is insufficient to
satisfy Defendant’s burden at step 5 of the sequential evaluation process. Rosado v. Sec'y of Health
& Human Servs., 807 F.2d 292, 293–294 (1st Cir. 1986).

In 2009, Richard T. Chamberlin, M.D., addressing Plaintiff’s physical RFC (Exh. 5F), opined that the record
contained insufficient evidence to assess any limitations as of the date last insured, December 31, 2006. However, his
review was also limited to records developed through 2004. (PageID # 262.)
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Defendant argues that the ALJ’s finding is actually supported by Dr. Kavanaugh’s opinion. The Court finds this
argument unpersuasive in part based on the fact that the ALJ gave Dr. Kavanaugh’s opinion no weight. The Court
generally should limit its review to the decision actually made and not an alternative decision first proposed in the
context of judicial review. Vining v. Astrue, 720 F. Supp. 2d 126, 128 (D. Me. 2010).
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See, e.g., Henick v. Astrue, No. 2:11-cv-147-NT, 2012 WL 283475, at *5 (D. Me. Jan. 30, 2012) report and
recommendation adopted without objection (Mar. 28, 2012) (“The partial rejection of the Fels opinion on the bases
provided, in the absence of any record support in the form of a medical expert's RFC opinion, exceeded the bounds of
the administrative law judge's expertise, constituting an impermissible interpretation of the plaintiff's RFC based on
the raw medical evidence.”). In this case the Court does not consider the inferences in question to be subject to
common-sense evaluation. See Gordils v. Sec'y of HHS, 921 F.2d 327, 329 (1st Cir. 1990).

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CONCLUSION
Based on the foregoing analysis, the Court remands the matter for further proceedings
regarding Plaintiff’s RFC and the jobs available in the economy.

/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 17th day of March, 2015.

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