TURCOTTE v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
Filing
20
REPORT AND RECOMMENDED DECISION re 15 Social Security Statement of Errors/Fact Sheet Objections to R&R due by 11/30/2018 By MAGISTRATE JUDGE JOHN H. RICH III. (lrc)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
GREGORY T.,
Plaintiff
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant
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No. 1:17-cv-00445-LEW
REPORT AND RECOMMENDED DECISION1
This 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 erroneously found that he had the ability to ambulate
effectively, as a result of which his left leg impairments did not meet the criteria of Listing 1.02(A),
Appendix 1 to 20 C.F.R. Part 404, Subpart P (the “Listings”), failed to consider his nonexertional
impairments of an inability to balance and a slow pace of learning new information, and
erroneously deemed him capable of working a full eight-hour day and 40-hour workweek. See
Plaintiff’s Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 15) at 3, 11,
15.
I find no reversible error and, accordingly, recommend that the court affirm the
commissioner’s decision.
1
This action is properly brought under 42 U.S.C. §§ 405(g) and 1383(c)(3). The commissioner has admitted that the
plaintiff has exhausted his administrative remedies. The case is presented as a request for judicial review by this court
pursuant to Local Rule 16.3(a)(2), which requires the plaintiff to file an itemized statement of the specific errors upon
which he seeks reversal of the commissioner’s decision and to complete and file a fact sheet available at the Clerk’s
Office, and the commissioner to file a written opposition to the itemized statement. Oral argument was held before
me pursuant to Local Rule 16.3(a)(2)(D), requiring the parties to set forth at oral argument their respective positions
with citations to relevant statutes, regulations, case authority, and page references to the administrative record.
1
The decision in question was issued following this court’s remand of a prior decision of
the commissioner for failure to address any of the nonexertional limitations identified by experts
who assessed the plaintiff’s physical residual functional capacity (“RFC”). See Record at 452,
564, 568-69. In the wake of that remand, the Appeals Council directed the ALJ to offer the plaintiff
an opportunity for a new hearing, take any further action needed to complete the administrative
record, and issue a new decision. See id. at 573. The ALJ convened a hearing at which both the
plaintiff and a vocational expert testified. See id. at 452.
Pursuant 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 30, 2020, Finding 1, Record at 455; that he had the severe impairments of
unequal leg length (left leg shorter than right leg), left leg hemiparesis and hemiplegia, left hip
deformity, asthma, borderline intellectual functioning, cognitive disorder, and learning disorder
(including reading, written expression, and mathematics learning disorder), Finding 3, id.; that he
had no impairment or combination of impairments that met or medically equaled the criteria of
any of the Listings, Finding 4, id. at 456; that he had the RFC to perform sedentary work as defined
in 20 C.F.R. §§ 404.1567(a) and 416.967(a), except that he could never climb ladders, ropes, or
scaffolds, could occasionally crawl, balance, stoop, crouch, or kneel, could occasionally climb
ramps or stairs, could only occasionally perform foot control operations with his left lower
extremity but could push no greater than 20 pounds when doing so, could be exposed to only
occasional extreme cold or extreme heat, needed to avoid concentrated fumes, odors, dust, gases,
poorly ventilated areas, or concentrated chemicals, needed to avoid hazards such as moving
machinery on the work floor and unprotected heights, could not ambulate over irregular or sloping
2
work surfaces or wet work surfaces, was limited to simple, unskilled work in a low-stress job,
defined as occasional decision-making and occasional changes in the work setting, and could have
only occasional interaction with the public, Finding 5, id. at 458-59; that, considering his age (five
years old, defined as a younger individual, on his alleged disability onset date, July 1, 1993), 2
education (at least high school), work experience (transferability of job skills immaterial), and
RFC, there were jobs existing in significant numbers in the national economy that he could
perform, Findings 7-10, id. at 466-67; and that he, therefore, had not been disabled from July 1,
1993, through the date of the decision, October 17, 2016, Finding 11, id. at 467-68. The Appeals
Council declined to assume jurisdiction of the case following remand, id. at 442-45, making the
decision the final determination of the commissioner, 20 C.F.R. §§ 404.984(a), (b)(2),
416.1484(a), (b)(2); 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), 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).
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 his 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
2
The plaintiff has not argued that a different standard should have been applied to determine whether he was disabled
during the period when he was a child. See Statement of Errors at 3-16.
3
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).
The statement of errors also implicates Step 3 of the sequential evaluation process, at which
step a claimant bears the burden of proving that his impairment or combination of impairments
meets or equals a listing. 20 C.F.R. §§ 404.1520(d), 416.920(d); Dudley v. Sec’y of Health
& Human Servs., 816 F.2d 792, 793 (1st Cir. 1987). To meet a listing, the claimant’s impairments
must satisfy all criteria of that listing, including required objective medical findings. 20 C.F.R.
§§ 404.1525(c)(3), 416.925(c)(3). To equal a listing, the claimant’s impairments must be “at least
equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R. §§ 404.1526(a),
416.926(a).
I. Discussion
A. Step 3: Listing 1.02(A)
The plaintiff first contends that the ALJ erroneously found that he had the ability to
ambulate effectively, as a result of which his left leg impairments did not meet or medically equal
Listing 1.02(A). See Statement of Errors at 3-11. Listing 1.02(A) requires the following showing:
1.02 Major dysfunction of a joint(s) (due to any cause): Characterized by gross
anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis,
instability) and chronic joint pain and stiffness with signs of limitation of motion
or other abnormal motion of the affected joint(s), and findings on appropriate
medically acceptable imaging of joint space narrowing, bony destruction, or
ankylosis of the affected joint(s). With:
A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or
ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b[.]
Listing 1.02(A). In turn, the phrase “inability to ambulate effectively” is defined as follows:
(1) Definition. Inability to ambulate effectively means an extreme limitation of
the ability to walk; i.e., an impairment(s) that interferes very seriously with the
individual’s ability to independently initiate, sustain, or complete activities.
Ineffective ambulation is defined generally as having insufficient lower extremity
4
functioning (see 1.00J) to permit independent ambulation without the use of a handheld assistive device(s) that limits the functioning of both upper extremities. . . .
(2) To ambulate effectively, individuals must be capable of sustaining a
reasonable walking pace over a sufficient distance to be able to carry out activities
of daily living. They must have the ability to travel without companion assistance
to and from a place of employment or school. Therefore, examples of ineffective
ambulation include, but are not limited to, the inability to walk without the use of
a walker, two crutches or two canes, the inability to walk a block at a reasonable
pace on rough or uneven surfaces, the inability to use standard public
transportation, the inability to carry out routine ambulatory activities, such as
shopping and banking, and the inability to climb a few steps at a reasonable pace
with the use of a single hand rail. The ability to walk independently about one’s
home without the use of assistive devices does not, in and of itself, constitute
effective ambulation.
Listing 1.00(B)(2)(b).
The ALJ found that the plaintiff had not shown an inability to ambulate effectively,
explaining:
In this case, the [plaintiff]’s left leg is shorter than [his] right leg and he utilizes a
left leg brace and orthotic insert in his left shoe to try to compensate for this
disparity. This results in a chronically antalgic gait on [his] left side, even with the
use of these assistive devices. However, there is no indication from the record that
the [plaintiff] needs to use any hand-held assistive devices when ambulating. In
addition, while the [plaintiff]’s representative argues that the evidence clearly
shows that [he] is incapable of walking a block at a reasonable pace on rough or
uneven surfaces, the undersigned does not concur with this assessment. While the
evidence of record does make numerous references to an antalgic gait, this by itself
does not establish an inability to ambulate effectively, particularly considering the
[plaintiff]’s activities of daily living. The [plaintiff] testified that he worked parttime at a gas station pumping gas for several years until 2014. While [he] did allege
he took breaks when not assisting customers, the fact that [he] could perform this
part-time work supports a finding that he did not suffer from an extreme limitation
in his ability to walk. [His] part-time work as a flagger for the fire department
provides further support for this assessment. While this work is only part-time, it
involves directing traffic, setting up traffic cones, and assisting town firefighters as
needed. Again, this work is inconsistent with an extreme limitation in the ability
to walk. Finally, the [plaintiff] also performs part-time work as a driver, where he
picks up low-income or disabled individuals and takes them to appointments.
Again, the ability to perform this work, even part-time, is inconsistent with an
extreme limitation in the ability to walk as defined within 1.00B2b. Therefore, the
undersigned finds that the [plaintiff] does not meet or medically equal the
requirements of listing 1.02.
5
Record at 457.
The plaintiff complains that the ALJ erred in (i) rejecting his contention, at Step 3, that he
was incapable of walking a block at a reasonable pace on rough or uneven surfaces and yet
concluding, at Step 4, that he could not ambulate over wet, uneven, or irregular work surfaces,
(ii) relying on his performance of activities that are not inconsistent with his asserted inability to
ambulate effectively, and (iii) failing to adopt opinions or findings of treating physician Maria
Noval, M.D., and agency examining consultants George R. Kousaie, M.D., and Robert N. Phelps
Jr., M.D. See Statement of Errors at 6-10.
As a threshold matter, as the commissioner observes, see Defendant’s Opposition to
Plaintiff’s Itemized Statement of Specific Errors (“Opposition”) (ECF No. 17) at 3, the plaintiff
fails to make a prima facie case that his impairments satisfied the requirements of the introductory
paragraph of Listing 1.02(A), see Statement of Errors at 3-11; Sullivan v. Zebley, 493 U.S. 521,
530 (1990) (in order for a claimant “to show that his impairment matches a listing, it must meet
all of the specified medical criteria”; “[a]n impairment that manifests only some of those criteria,
no matter how severely, does not qualify”) (emphasis in original) (citation and footnote omitted).
The ALJ did not concede that the requirements of the introductory paragraph were met; rather, he
did not find it necessary to reach that question. See Record at 456-57.
The plaintiff’s counsel attempted to make that showing for the first time in rebuttal at oral
argument; however, assuming arguendo that this showing was not made too late, it is too little.
The plaintiff’s counsel identified no “findings on appropriate medically acceptable imaging of
joint space narrowing, bony destruction, or ankylosis of the affected joint(s).” Listing 1.04(A)
(emphasis added). That is fatal to the plaintiff’s bid for remand on this basis. See, e.g., Langley
v. Colvin, No. 1:16-cv-00064-JDL, 2016 WL 7477537, at *2 (D. Me. Dec. 29, 2016) (rec. dec.,
6
aff’d Feb. 10, 2017) (claimant’s failure to argue how his degenerative disc disease met all of the
elements of Listing 1.04 was “sufficient to require rejection of” his bid for remand on the basis of
the ALJ’s asserted error in not finding that listing met); Swain v. Astrue, No. 2:10-cv-325-DBH,
2011 WL 2559538, at *3 (D. Me. June 27, 2011) (rec. dec., aff’d July 15, 2011) (“In the absence
of any explanation of how the [l]isting is equaled, the court will not consider this argument.”)
(emphasis in original).
In any event, even if the plaintiff had succeeded in making this showing, his challenges to
the ALJ’s finding that he did not demonstrate an inability to ambulate effectively fall short.
First, as the commissioner persuasively argues, see Opposition at 10, the ALJ’s rejection
at Step 3 of the plaintiff’s contention that he was incapable of walking a block at a reasonable pace
on rough or uneven surfaces did not plainly conflict with his assessment at Step 4 of a limitation
against ambulating over irregular, sloping, or wet work surfaces. At Step 4, the ALJ was tasked
to determine the “sustained work-related physical and mental activities [the plaintiff could
perform] in a work setting on a regular and continuing basis.” Social Security Ruling 96-8p,
reprinted in West’s Social Security Reporting Service Rulings 1983-1991 (Supp. 2018) (“SSR 968p”), at 142. In turn, “[a] ‘regular and continuing basis’ means 8 hours a day, for 5 days a week,
or an equivalent work schedule.” Id. An individual capable of walking a block at a reasonable
pace on rough or uneven surfaces would not necessarily be capable of ambulating over such
surfaces on a regular and continuing basis.
Second, the plaintiff’s challenge to the ALJ’s partial reliance on his activities is also
unavailing. The plaintiff asserts that (i) there is no evidence that his part-time work as a driver
involved standing or walking, (ii) he testified that he only flagged when the Fire Department
responded to a call, which had happened only once the prior month, was accompanied by someone
7
who could help him out, and usually could flag for only about half an hour before needing a break
because his legs got tired, and (iii) he testified that when he worked pumping gas, he did so only
for four hours a day, five days a week, had breaks, and could sit down in between serving
customers. See Statement of Errors at 7-8. However, as the commissioner notes, see Opposition
at 9, the ALJ deemed the plaintiff’s statements concerning his symptoms not entirely consistent
with the medical and other evidence of record, see Record at 459, and the plaintiff has not
separately challenged that finding, see Statement of Errors at 3-16.3
Third, and finally, the opinions and findings of Drs. Phelps, Noval, and Kousaie to which
the plaintiff points, see Statement of Errors at 8-10, do not undermine the ALJ’s Step 3
determination. The commissioner correctly observes that Dr. Phelps elsewhere addressed all
examples of ineffective ambulation set forth in Listing 1.00(B)(2)(b), concluding that the plaintiff
could perform each of the activities at issue. See Opposition at 5-6; Record at 740 (findings by
Dr. Phelps that plaintiff could “perform activities like shopping,” “ambulate without using a
wheelchair, walker, 2 canes or 2 crutches,” “walk a block at a reasonable pace on rough or uneven
surfaces,” “use standard public transportation,” and “climb a few steps at a reasonable pace with
the use of a single hand rail”). Against that backdrop, as the commissioner argues, see Opposition
at 6, a “reasonable mind” is plainly not required to interpret the Phelps opinion as indicating that
Listing 1.00(B)(2)(b) was satisfied.4
3
Indeed, elsewhere in his decision, the ALJ expressly considered the testimony on which the plaintiff relies,
concluding that the gas station job “involved a significant amount of standing” and that the flagger job, while parttime and allegedly involving frequent breaks, was a “position . . . performed primarily while standing[.]” Record at
460.
4
Beyond this, as the commissioner notes, see Opposition at 7-8, the plaintiff does not challenge the ALJ’s assignment
of partial weight to (i) a physical RFC opinion of agency nonexamining consultant Richard T. Chamberlin, M.D.,
(ii) a report by agency examining consultant Patricia Thibodeau, P.T., and (iii) a functional capacity evaluation by
physical therapist Anne Knowles, P.T., see Record at 461-62; Statement of Errors at 3-16. In determining the
plaintiff’s physical RFC, Dr. Chamberlin impliedly found that his impairments did not meet or equal a listing. See
Record at 367-74; 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). P.T. Thibodeau found that the plaintiff “definitely
8
While the plaintiff points to a treatment note of Dr. Noval indicating that he was dragging
his right foot, see Statement of Errors at 9, he overlooks that Dr. Noval opined that he could stand
and walk for four to six hours in an eight-hour workday, see Record at 439.5
Finally, as the commissioner observes, see Opposition at 6-7, to the extent that the plaintiff
points to Dr. Kousaie’s findings of significant left leg abnormalities and opinion that “[i]t would
be difficult for [the plaintiff] to walk for any period of time[,]” Statement of Errors at 9 (quoting
Record at 383), the Kousaie opinion is vaguely worded, begging the question of whether,
regardless of the plaintiff’s difficulty walking, he was “capable of sustaining a reasonable walking
pace over a sufficient distance to be able to carry out activities of daily living[,]” Listing
1.00(B)(2)(b).
The plaintiff, accordingly, fails to demonstrate error in the ALJ’s finding that his left leg
impairments did not meet or equal Listing 1.02(A).
B. Step 4: Omission of Nonexertional Limitations from RFC
The plaintiff next complains that, in assessing his RFC, the ALJ failed to account for his
inability to balance or his slow pace of learning new information. See Statement of Errors at 1114. This argument, as well, is unavailing.
ha[d] some work capacity” and “especially would be able to do jobs that require . . . standing for moderate periods of
time, [and] walking for moderate periods of time.” Record at 344. P.T. Knowles deemed the plaintiff capable of
walking up to 33 percent of the day. See id. at 771.
5
The plaintiff complains that the ALJ never mentioned the fact that he had undergone surgery to fix a broken right
ankle and, thereafter, dragged his right foot while walking, which “would certainly add to [his] difficulties with
effective ambulation.” Statement of Errors at 9. At oral argument, his counsel elaborated that the ALJ mistakenly
stated that the plaintiff had “a history of a remote left ankle fracture[,]” which the ALJ found nonsevere. Record at
456 (emphasis added). The error is harmless. As the commissioner notes, see Opposition at 6 & n.5, despite reviewing
records indicating that the plaintiff was dragging his right foot, Dr. Phelps deemed him capable of performing the
activities described in Listing 1.00(B)(2)(b), see Record at 732, 740. In addition, Dr. Noval found the plaintiff capable
of standing and walking for four to six hours in an eight-hour workday. See id. at 439.
9
1. Inability To Balance
The plaintiff first contends that, in deeming him capable of occasional balancing, the ALJ
failed to resolve a conflict in the opinion evidence, ignoring opinions of Dr. Phelps and P.T.
Knowles that he could not balance. See Statement of Errors at 12, 14.6
As the commissioner observes, see Opposition at 11, any error is harmless. The ALJ relied
at Step 5 on the plaintiff’s ability to perform the representative jobs of bench worker, Dictionary
of Occupational Titles (U.S. Dep’t of Labor 4th ed., rev. 1991) (“DOT”) § 700.687-062, printed
circuit board screener, DOT § 726.684-110, and electronic inspector, DOT § 726.684-050. See
Record at 467.7 The DOT indicates that, with respect to all three jobs, balancing is “[n]ot present
– [a]ctivity or condition does not exist[.]” DOT §§ 700.678-062, 726.684-110, 726.684-050.
At oral argument, the plaintiff’s counsel protested that the commissioner’s harmless-error
argument ran afoul of the so-called “Chenery rule.” See, e.g., Day v. Astrue, No. 1:12-cv-141DBH, 2012 WL 6913439, at *10 (D. Me. Dec. 30, 2012) (rec. dec., aff’d Jan. 18, 2013) (“Pursuant
to the rule of SEC v. Chenery Corp., 332 U.S. 194 (1947), a reviewing court cannot affirm an
agency’s decision on the basis of a post hoc rationalization but must affirm, if at all, on the basis
of a rationale actually articulated by the agency decision-maker.”) (citation and internal quotation
marks omitted). However, as the commissioner’s counsel rejoined, an argument that an error is
harmless is not a bid for affirmance on the basis of a rationale not articulated by the decisionmaker but, rather, an assertion that remand is unwarranted in the absence of harmful error. See,
At oral argument, the plaintiff’s counsel conceded that there was record evidence to support the ALJ’s determination
that plaintiff could occasionally balance.
7
The ALJ mistakenly cited the bench worker job as “DOT 770.687-062[.]” Compare Record at 467 with id. at 52223. I have corrected this apparent typographical error.
6
10
e.g., Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (“[T]he burden of showing that an error is
harmful normally falls upon the party attacking the agency’s determination.”).8
Remand, accordingly, is unwarranted on the basis of any error by the ALJ in assessing the
plaintiff’s ability to balance.
2. Difficulties in Pace of Learning New Information
The plaintiff next challenges the adequacy of the ALJ’s determination of his mental RFC,
asserting that, although there is evidence of record supporting that finding, the ALJ failed to
address and resolve conflicting evidence regarding the pace at which he is able to learn new
information. See Statement of Errors at 13-14. I find no error.
The plaintiff asserts that, although the ALJ purported to give “significant weight” to a May
25, 2005, neuropsychological evaluation by Christine M. Fink, Ph.D., he failed to include
additional RFC limitations based on her observation that the plaintiff “appeared to forget what he
was supposed to be doing” during the evaluation and her recommendations that he be “seated close
to the source of information and away from distractions” and be given “[b]rief, simplified verbal
instructions, followed by visual demonstration and modeling, and intensive guided practice[,]”
8
The plaintiff’s counsel further contended at oral argument that (i) the DOT does not address balancing, although he
acknowledged that its companion book, the Selected Characteristics of Occupations Defined in the Revised Dictionary
of Occupational Titles (“SCO”) does, (ii) one of the three jobs, that of film touch-up inspector, referred to by the ALJ
as an “electronic inspector,” DOT § 726.684-050, requires occasional balancing, and (iii) the commissioner cannot
demonstrate the harmlessness of any error in the absence of vocational expert testimony. These points, too, are
unavailing. Whether the information is found in the DOT or the SCO is immaterial: the commissioner relies on both.
See, e.g., Social Security Ruling 00-4p, reprinted in West’s Social Security Reporting Service Rulings 1983-1991
(Supp. 2018) (“SSR 00-4p”), at 242 (“In making disability determinations, we rely primarily on the DOT (including
its companion publication, the SCO), for information about the requirements of work in the national economy.”). The
DOT listing for the job of electronic inspector indicates that no balancing is involved. See DOT § 726.684-050. In
any event, even if that job were eliminated, the plaintiff has not argued that the remaining two jobs do not exist in
significant numbers in the national economy. Finally, the commissioner did not err in relying on the DOT/SCO to
demonstrate that any error was harmless. See, e.g., SSR 00-4p at 242 (“Occupational evidence provided by a VE
[vocational expert] or VS [vocational specialist] generally should be consistent with the occupational information
supplied by the DOT.”).
11
with “[n]ew information . . . presented in short, well-organized learning trials.” Id. at 13 (quoting
Record at 204-05, 463).
He adds that, although the ALJ noted Dr. Fink’s observations in a May 2013
neuropsychological evaluation that he was “severely impaired in his ability to mentally track and
rapidly shift between cognitive response sets and showed evidence of a visual spatial impairment
and a motor impairment[,]” he failed to factor them into his mental RFC determination. Id. at 1314 (quoting Record at 464).
Finally, he contends that, although the ALJ gave a May 2016 opinion of Jonathan
Freedman, Ph.D., “great weight” and noted that Dr. Freedman found that he could “only process
so much information at one time[,]” the ALJ failed to account for that finding in his mental RFC.
Id. (quoting Record at 464).
He cites Ferguson v. Berryhill, No. 1:16-cv-00489-DBH, 2017 WL 2417849 (D. Me. June
4, 2017) (rec. dec., aff’d June 20, 2017), for the proposition that remand is warranted when, absent
recognition of conflicts in the evidence and resolution of the same, this court “cannot determine
whether [a] decision is supported by substantial evidence, requiring remand.” Id. at 14 (quoting
Ferguson, 2017 WL 2417849, at *8) (emphasis in original).
As the commissioner persuasively argues, see Opposition at 13, Ferguson is materially
distinguishable. Whereas, in Ferguson, the ALJ did not discuss several entire exhibits, and the
claimant successfully rebutted the presumption arising from the presence of those exhibits on the
ALJ’s List of Exhibits that she had at least considered them, see Ferguson, 2017 WL 2417849, at
*3-4, in this case, the ALJ discussed and weighed both the Fink evaluations and the Freedman
opinion, see Record at 463-64. He deemed the portions of the Fink evaluations and Freedman
opinion on which the plaintiff relies consistent with his RFC determination, see id., and it is not
12
self-evident that this was error. As the commissioner notes, see Opposition at 12-14, the 2005 and
2013 findings and recommendations of Dr. Fink and the vague Freedman opinion are not opinions
as to RFC, which is defined as “the most you can still do despite your limitations[,]” 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1). As a result, it is not clear that the ALJ was obliged to assess
additional limitations to account for them. Indeed, Dr. Freedman’s observation that the plaintiff
could “only process so much information at one time[,]” Record at 464, begs the question of
whether the plaintiff required limitations beyond those the ALJ assessed.
Accordingly, the plaintiff’s challenge to the ALJ’s handling of the issue of his difficulties
with pace affords no basis for remand.
C. Step 4: Inability To Work a 40-Hour Workweek
The plaintiff finally argues that the ALJ failed to recognize and resolve a conflict in the
evidence as to whether he could work an eight-hour day and 40-hour workweek, warranting
remand pursuant to Ferguson. See Statement of Errors at 15. Specifically, he faults the ALJ for
failing to come to grips with opinions of Dr. Noval and Ms. Knowles that he was not capable of
working on a regular and continuing basis. See id. at 15. Again, I find no error.
As a threshold matter, as the commissioner observes, see Opposition at 15, an opinion as
to whether a claimant can work full-time is an opinion reserved to the commissioner, see, e.g., 20
C.F.R. §§ 404.1527(d)(1), 416.927(d)(1); Bailey v. Berryhill, No. 2:17-cv-00080-DBH, 2017 WL
6590546, at *9 (D. Me. Dec. 26, 2017) (rec. dec., aff’d Feb. 12, 2018) (At bottom, “an opinion that
a claimant can work only part-time implicates the overarching question of whether a claimant is
disabled, an issue reserved to the commissioner with respect to which even opinions of treating
physicians are not entitled to controlling weight or special significance.”).
13
In any event, as the commissioner notes, see Opposition at 15-16, the ALJ expressly
recognized and discounted both the Noval and Knowles conclusions, see Record at 461-63.
Remand, accordingly, is unwarranted on the basis that the ALJ erred in failing to resolve
conflicts in the evidence concerning the plaintiff’s ability to work full-time.9
II. Conclusion
For the foregoing reasons, I recommend that the commissioner’s decision be AFFIRMED.
NOTICE
A party may file objections to those specified portions of a magistrate judge’s report or
proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for
which de novo review by the district court is sought, together with a supporting memorandum,
within fourteen (14) days after being served with a copy thereof. A responsive memorandum
shall be filed within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right to de novo review
by the district court and to appeal the district court’s order.
Dated this 16th day of November 2018.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
The plaintiff does not contend that the ALJ’s finding is unsupported by other opinion evidence. See Statement of
Errors at 15-16. In any event, as the commissioner notes, see Opposition at 15-16, the ALJ gave great weight to the
opinion of agency nonexamining consultant Brian Stahl, Ph.D., “who opined that the [plaintiff was] able to understand
and remember simple instructions and tasks and work in two-hour blocks over the course of a normal workday or
workweek[,]” Record at 465, and great weight to the opinion of Dr. Freedman, “who opined that the [plaintiff]’s
persistence appear[ed] adequate for full-time work” and that his “ability to understand, concentrate, follow
instructions, his memory, and his language abilities were suitable for unskilled, repetitive employment[,]” id. at 464.
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