ROY v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
Filing
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MEMORANDUM DECISION vacating 13 SS Statement of Errors/Fact Sheet By MAGISTRATE JUDGE JOHN H. RICH III. (nrg)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ROBERTA M. R.,
Plaintiff
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant
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No. 1:18-cv-00036-JHR
MEMORANDUM 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 her past work as a cleaner. The plaintiff seeks remand on the basis that,
among other things, the ALJ erred in assessing the impact of her irritable bowel syndrome (“IBS”),
undermining both his determination of her residual functional capacity (“RFC”) and his finding
that she retained the RFC to return to past relevant work as a cleaner. See Statement of Specific
Errors (“Statement of Errors”) (ECF No. 13) at 7-14. I agree and, accordingly, vacate the ALJ’s
decision and remand this case for further proceedings consistent herewith. I need not and do not
reach the plaintiff’s remaining points of error.
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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 her 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 she 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. The
parties have consented to have me conduct all proceedings in this matter, including the entry of judgment. ECF No.
16.
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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 31, 2016, Finding 1, Record at 12; that she had the severe impairments of
anxiety disorder that is associated with IBS symptoms, and affective disorder, Finding 3, id.; that
she had the RFC to perform a full range of work at all exertional levels with the non-exertional
limitations that she could perform simple tasks, not interact with the public aside from incidental
contact, occasionally interact with supervisors and coworkers but perform no team or tandem
collaborative-type work with coworkers, make simple decisions, and adapt to no more than
occasional changes in the routine work setting, Finding 5, id. at 15; that she was capable of
performing past relevant work as a cleaner, Finding 6, id. at 22; and that she, therefore, had not
been disabled from June 1, 2011, her alleged onset date of disability, through February 1, 2017,
the date of the decision, Finding 7, id. at 23. 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,
416.1481; 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 4 of the sequential evaluation process, at which stage the claimant
bears the burden of proving inability to return to past relevant work. 20 C.F.R. §§ 404.1520(f),
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416.920(f); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). At this step, the commissioner must
make findings of the plaintiff’s RFC and the physical and mental demands of past work and
determine whether the plaintiff’s RFC would permit performance of that work. 20 C.F.R.
§§ 404.1520(f), 416.920(f); Social Security Ruling 82-62 (“SSR 82-62”), reprinted in West’s
Social Security Reporting Service Rulings 1975-1982, at 813.
I. Discussion
As the plaintiff observes, see Statement of Errors at 14, the ALJ’s evaluation of her IBS
condition is unclear. He found that she had severe impairments of anxiety disorder “that is
associated with irritable bowel syndrome (IBS) symptoms,” and affective disorder, see Finding 3,
Record at 12, which he noted “significantly limit[ed] [her] ability to perform basic work
activities[,]” id. at 13. Yet, he elsewhere referenced evidence that “suggest[ed] that [her] IBS
condition is not significantly limiting[,]” id. at 17, and assessed no functional limitations
attributable to her IBS, Finding 5, id. at 15. Further confusing the record, while the ALJ apparently
did not find a standalone severe impairment of IBS at Step 2, see Finding 3, Record at 12, he
effectively treated the condition as severe. At Step 3, he considered whether the plaintiff’s
impairments met Listings 5.06 (inflammatory bowel disease) or 5.08 (weight loss due to any
digestive disorder), see id. at 13-14, and at Step 4, he acknowledged that the plaintiff alleged that
she was unable to return to work because of “ongoing anxiety and IBS issues” and summarized
the record evidence concerning her IBS, see id. at 16-20.
At oral argument, counsel for the commissioner contended that, in determining the
plaintiff’s RFC, the ALJ supportably found that her IBS imposed no functional limitations or, in
the alternative, impliedly found that any need for bathroom breaks could be accommodated during
standard work breaks (every two hours). He argued that, to the extent that the ALJ elicited
testimony from a vocational expert (“VE”) predicated on a need for any greater number of breaks,
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he made no finding that the plaintiff required such breaks but, rather, simply posited hypothetical
questions that gave her the benefit of the doubt.
Finally, commissioner’s counsel asserted that any error is harmless because the plaintiff
identifies no evidence, besides her testimony, that she had greater limitations than found by the
ALJ, and she does not separately challenge his partial discrediting of that testimony. For that
proposition, he cited Courtney v. Colvin, Civil No. 2:13-cv-72-DBH, 2014 WL 320234 (D. Me.
Jan. 29, 2014), and Crocker v. Soc. Sec. Admin. Comm’r, No. 1:09-cv-459-JAW, 2010 WL
3274509 (D. Me. Aug. 16, 2010) (rec. dec., aff’d Sept. 23, 2010). See also Defendant’s Opposition
to Plaintiff’s Statement of Specific Errors (“Opposition”) (ECF No. 14) at 11-12.
As a threshold matter, the ALJ in this case failed to make clear his critical predicate finding.
While he explained that the record did “not support the [plaintiff]’s alleged need for excessive
bathroom breaks[,]” Record at 18, he made conflicting statements as to whether she had other IBSrelated functional limitations. Most troublingly, in summarizing his findings as to the plaintiff’s
RFC, he expressly stated that she had been “diagnosed with IBS, anxiety and depression that
result[ed] in several non-exertional functional limitations.” Id. at 20 (emphasis added). Yet, he
neither included IBS-related limitations in his RFC determination nor explained why he did not.
The court, accordingly, cannot discern whether the omission of such limitations was an oversight
or the product of a considered choice.
While courts overlook an “arguable deficiency in opinion-writing technique” if not
outcome-determinative, see Bryant ex rel. Bryant v. Apfel, 141 F.3d 1249, 1252 (8th Cir. 1998)
(citation and internal punctuation omitted), reversal and remand are warranted when failures to
explicate and/or even address material issues prevent a reviewing court from concluding that the
ALJ reached a supportable result via an acceptable analytical pathway, see, e.g., Nguyen v. Chater,
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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). That is the case here.
As noted above, the commissioner challenges the materiality of any error on the basis that
the plaintiff fails to point to evidence besides her own testimony that she had greater limitations
than found by the ALJ. See Opposition at 11-12. However, in this case, unlike in Courtney or
Crocker, the ALJ did not make clear as a threshold matter what IBS-related limitations he found.
Compare Courtney, 2014 WL 320234, at *2 (claimant contended that ALJ erred in finding his
headache impairment severe but assessing no related limitations); Crocker, 2010 WL 3274509, at
*2 (claimant contended that ALJ erred in finding no severe impairment of bipolar II disorder). A
reviewing court does not reach the question of the harmfulness of error if the ALJ’s predicate
finding is itself unclear.
II. Conclusion
For the foregoing reasons, the commissioner’s decision is VACATED, and the case is
REMANDED for proceedings consistent herewith.
Dated this 28th day of February, 2019.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
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