FREEMAN v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 18

MEMORANDUM DECISION re 11 Social Security Statement of Errors/Fact Sheet By MAGISTRATE JUDGE JOHN H. RICH III. (nrg)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
RAYMOND FREEMAN,
Plaintiff
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant

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No. 2:14-cv-412-JHR

MEMORANDUM DECISION1
This Social Security Disability (“SSD”) and Supplemental Security Income (“SSI”) appeal
raises the question of whether the administrative law judge 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 administrative law judge erred in refusing to admit additional
evidence submitted less than five days prior to his hearing and in rejecting an opinion of treating
physician Nicolas Handanos, M.D. See Plaintiff’s Itemized Statement of Errors (“Statement of
Errors”) (ECF No. 11) at 3-9.

I find no reversible error and, accordingly, affirm the

commissioner’s decision.

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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 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 on June 10, 2015, 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. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the
administrative law judge found, in relevant part, that the plaintiff met the insured status
requirements of the Social Security Act through December 31, 2009, Finding 1, Record at 17; that
he had severe impairment of peripheral neuropathy status-post left hand injury, Finding 3, id. at
18; that he had the residual functional capacity (“RFC”) to perform light work as defined in 20
C.F.R. §§ 404.1567(b) and 416.967(b), except that he could never climb ladders, ropes, or
scaffolds, could perform occasional handling and fingering (left hand restriction only), should
avoid work around hazards, including machinery, and should avoid concentrated exposure to
extreme cold, which would exacerbate his pain and numbness, Finding 5, id.; that, considering his
age (30 years old, defined as a younger individual, on his alleged disability onset date, April 15,
2009), education (at least high school), work experience (transferable skills), and RFC, there were
jobs existing in significant numbers in the national economy that he could perform, Findings 7-10,
id. at 21-22; and that he, therefore, had not been disabled from April 15, 2009, through the date of
the decision, July 17, 2013, Finding 11, 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. Secretary 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. Secretary
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

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the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Secretary
of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
The administrative law judge 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 the commissioner’s findings regarding the plaintiff’s RFC to perform such
other work. Rosado v. Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).
I. Discussion
A. Refusal To Admit Late-Tendered Evidence
At the outset of the plaintiff’s June 11, 2013, hearing, the administrative law judge noted
that a great deal of material had been submitted within the previous five days. See Record at 31.
The cover letter transmitting those materials is not of record; however, the plaintiff later described
it as follows: “In the cover letter to the [administrative law] judge, counsel said that the record[s]
were received on June 10 (the day before the hearing), and submitted on the same day, suggesting
that the late submission was unavoidable.” Id. at 337.
At hearing, the administrative law judge asked the plaintiff’s counsel, “Maybe you know
the story of what some of that is?” Id. at 31. The plaintiff’s attorney responded:
We had some difficulty getting those records. They did come in and we made the
determination to send them. . . . [S]ome of them are more recent, but we had some
difficulty getting those records.
Id. The administrative law judge commented, “I did not anticipate admitting them, but certainly I
will look at them and evaluate them in terms of the whole.” Id. at 32. In his decision, the
administrative law judge stated that he declined to admit the late-tendered evidence on the basis

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that the requirements of 20 C.F.R. § 405.331(b) “are not met.” Id. at 15. He did not elaborate.
See id.
Section 331(a) provides that a claimant “must submit any written evidence no later than 5
business days before the date of the scheduled hearing.” 20 C.F.R. § 405.331(a). If he does not,
“[t]he administrative law judge may decline to consider the evidence unless the circumstances
described in paragraphs (b) or (c) of this section apply.” Id.
Paragraph (b) provides:
If [a claimant] miss[es] the deadline described in paragraph (a) of this section and
[he] wish[es] to submit evidence during the five business days before the hearing
or at the hearing, the administrative law judge will accept the evidence if [the
claimant] show[s] that:
(1)

[The commissioner’s] action misled [the claimant];

(2)
[The claimant] had a physical, mental, educational, or linguistic
limitation(s) that prevented [him] from submitting the evidence earlier; or
(3)
Some other unusual, unexpected, or unavoidable circumstance beyond [the
claimant’s] control prevented [him] from submitting the evidence earlier.
20 C.F.R. § 405.331(b).
The plaintiff contends that the administrative law judge erred in failing to find, pursuant to
section 331(b)(3), that circumstances beyond his control prevented the earlier submission of the
materials at issue. See Statement of Errors at 3-6. He asserts that, as soon as his counsel became
aware that he had received additional medical treatment in April 2013, including treatment with
Dr. Handanos, counsel immediately requested the records. See id. at 4. He states that, after several
follow-up requests, counsel received the records one day prior to his hearing and submitted them
on the same day. See id. at 4-5.

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He argues that he did not have ultimate control over the timing of the treating providers’
submission of the records, which were requested and re-requested in a timely manner, and that this
was not a case of an attempt to “sandbag” an administrative law judge at the last possible moment
or delay a hearing, which he contends is “the problem that 20 C.F.R. § 405.331 was created to
avoid.” Id. at 5-6.
The plaintiff demonstrates no error. The only justification supplied to the administrative
law judge, in either the cover letter transmitting the materials or at the hearing, was that the plaintiff
had “some difficulty” getting the records and had submitted them immediately when they did
finally arrive. This showing was patently insufficient to satisfy the “rather rigorous standard” of
section 405.331(b)(3), Raymond v. Astrue, No. 1:12-cv-92-DBH, 2012 WL 6913437, at *2 (D. Me.
Dec. 31, 2012) (rec. dec., aff’d Jan. 18, 2013), begging the question of why the plaintiff had
difficulties, when he sought the records, and what measures he took thereafter to secure them.2
Even taking into account the arguments made for the first time on this appeal, the plaintiff’s
showing falls short. As the commissioner notes, see Opposition at 3-5, the plaintiff still does not
explain, let alone supply evidence corroborating, when he became aware of the missing records,
why he only then became aware of them, how soon afterward he requested them, and what efforts
he thereafter made to secure them in a timely fashion. Such details are material to assessment of
whether the standard is met. See, e.g., Caiazzo v. Colvin, No. 2:13-cv-00155-JAW, 2014 WL
1569529, at *3-*4 (D. Me. Apr. 17, 2014) (good cause not shown when claimant attributed delay
to fact that doctor’s office repeatedly sent assessment to wrong fax number; claimant was
represented by counsel who was expecting the assessment and could have made inquiry of the

As the commissioner points out, see Defendant’s Opposition to Plaintiff’s Itemized Statement of Errors
(“Opposition”) (ECF No. 14) at 4, the plaintiff’s counsel’s pre-hearing brief, dated June 7, 2013, made no mention
that additional evidence had been requested but not received, see Record at 334-36.
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doctor’s office); Raymond, 2012 WL 6913437, at *1-*2 (good cause not shown when claimant
attributed delay to his unawareness that records existed or that his estranged wife possessed them,
but he did not claim that memory problems or any other impairment prevented him from
remembering the records or that anything prevented him from inquiring whether his estranged wife
had them); Black v. Astrue, No. 1:10-cv-175-JAW, 2011 WL 1226027, at *5 (D. Me. Mar. 29,
2011) (rec. dec., aff’d Apr. 18, 2011) (good cause not shown when plaintiff attributed delay to a
miscommunication between counsel and counsel’s staff).
That the plaintiff did not intend to “sandbag” the administrative law judge or delay the
hearing is beside the point. See Newcomb v. Astrue, No. 2:11-cv-02-GZS, 2012 WL 47961, at *10
(D. Me. Jan. 6, 2012) (rec. dec., aff’d Jan. 24, 2012) (“[T]he language of section 405.331 is clear.
An administrative law judge has no obligation to accept late[-]tendered evidence unless good cause
is shown. Neither that regulation, nor the authorities cited by the [claimant], indicates that, in the
absence of a showing of good cause, the commissioner’s policies of full and fair record
development trump the concern that led to the promulgation of section 405.331: that the late
submission of evidence to the administrative law judge significantly impeded the commissioner’s
ability to issue hearing decisions in a timely manner.”) (citation, internal punctuation, and footnote
omitted).
B. Rejection of Treating Source Opinion
The administrative law judge resolved a conflict in the opinion evidence as to the plaintiff’s
physical capabilities by according significant weight to the opinion of an agency nonexamining
consultant, Karen Schnute, M.D., and little weight to the April 8, 2013, opinion of Dr. Handanos.
See Record at 21, 442-45.

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Dr. Handanos had indicated, inter alia, that the plaintiff could occasionally lift/carry less
than 10 pounds, stand and/or walk for less than two hours in an eight-hour workday, needed to
periodically alter sitting and standing to relieve discomfort, and had additional postural,
manipulative, and environmental limitations. See id. at 442-45.
The administrative law judge articulated three reasons for giving the Handanos opinion
little weight:
1.

Dr. Handanos “deemed himself unqualified to perform such an evaluation[,]”

having earlier stated that “he was not capable of providing a statement of the [plaintiff’s] physical
or psychological disability as he did not have the training to do so.” Id. at 21 (citation omitted).
2.

“[T]he last medical evidence provided by Dr. Han[danos] was from June 2012,

making his April 2013 evaluation outdated.” Id.
3.

Dr. Handanos had evidently limited the plaintiff to less than a sedentary work

capacity with a sit-stand option based on his back pain; however, those severe limitations appeared
to overstate his back limitations, “given the extent of his treatment and the lack of a diagnosis to
explain his symptoms.” Id. The administrative law judge explained that the available medical
evidence indicated that the plaintiff had “complained of intermittent back pain and radiculopathy”
and “appear[ed] not to have been treated other than with pain medications[.]” Id.
Nonetheless, the administrative law judge stated that he gave great weight to Dr. Handanos’
opinion insofar as he assessed environmental and manipulative limitations for the plaintiff’s left
hand, “as they [were] consistent with the extent of [the plaintiff’s] injury and his treatment[.]” Id.
The plaintiff complains, see Statement of Errors at 6-9, that the administrative law judge
failed to supply the requisite “good reasons” for discrediting a treating source opinion, see 20
C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (an administrative law judge must “give good reasons in

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[his] notice of determination or decision for the weight [he] give[s] [a claimant’s] treating source’s
opinion”), in that he:
1.

Wrongly and unfairly deemed Dr. Handanos’ opinion “outdated,” even though he

knew that the excluded evidence contained additional progress notes of Dr. Handanos for the
period through April 19, 2013. See Statement of Errors at 6-7;
2.

Had no basis to deem Dr. Handanos “unqualified” when he is qualified pursuant to

relevant regulations, 20 C.F.R. §§ 404.1513(a), 404.1527(c), 416.913(a), and 416.927(c). See id.
at 7-8;
3.

Erroneously focused on the lack of a diagnosis, which this court has specifically

held need not be supplied. See id. at 8 (citing Moore v. Astrue, No. 2:09-cv-297-GZS, slip op. at
6-7 (D. Me. Dec. 31, 2012) (rec. dec., aff’d Jan. 28, 2013), a copy of which is appended to the
Opposition, for the proposition that a claimant is not obligated to prove that he has a particular
diagnosis but must only prove that he has a medically determinable condition that imposes
limitations on his ability to work);
4.

Overlooked that the medical evidence supported not only the existence of a

medically determinable back impairment but also its severity. See id. (arguing that a March 10,
2012, MRI demonstrated loss of the lumbar lordosis, commonly the result of muscle spasm, and
that the presence of muscle spasms, as well as pain, supported the Handanos opinion); and
5.

Contradicted himself, stating that he gave the opinion little weight but then giving

great weight to a portion of it, despite finding Dr. Handanos “unqualified.” See id. at 7.
The commissioner admits that the administrative law judge erred in deeming the Handanos
opinion outdated; however, she persuasively argues that the error was harmless because he
otherwise supplied adequate reasons for partially discounting the opinion. See Opposition at 6-

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12; see also, e.g., Allen v. Astrue, No. 2:10-cv-35-DBH, 2010 WL 5452123, at *5 (D. Me. Dec.
28, 2010) (rec. dec., aff’d Jan. 18, 2011) (declining to consider whether all of administrative law
judge’s reasons for discounting treating source opinion bore scrutiny when highlighted
inconsistencies, in themselves, constituted good reason to reject the opinion).
First, as the commissioner argues, see Opposition at 8-9, the administrative law judge did
not find Dr. Handanos unqualified within the meaning of the regulations. Rather, he merely noted
that Dr. Handanos had deemed himself unqualified to opine on the plaintiff’s capacities. See
Record at 21; see also id. at 414 (letter from Dr. Handanos stating, “In regards to a statement on
the [plaintiff’s] physical and psychiatric disability I have neither the training nor the ability to do
these, if that is necessary I will need to refer the [plaintiff] to someone who does the physical and
psychiatric disability evaluation.”). This was a proper basis on which to accord little weight to the
Handanos opinion.
It follows, as the commissioner reasons, see Opposition at 9, that the administrative law
judge did not contradict himself. He merely concluded that, while the fact that Dr. Handanos
deemed himself unqualified was grounds, in general, for discounting his opinion, his assessed
environmental and manipulative limitations were nonetheless consistent with the extent of the
plaintiff’s hand injury and treatment. See Record at 21. In addition, as the commissioner observes,
see Opposition at 9, Dr. Handanos’ environmental and manipulative limitations, unlike his backrelated limitations, were largely consistent with those assessed by Dr. Schnute, compare Record
at 192-94 with id. at 442-45. Beyond this, as a general proposition, an administrative law judge
need not accept or reject a medical opinion in toto. See, e.g., Evangelista v. Secretary of Health
& Human Servs., 826 F.2d 136, 144 (1st Cir. 1987) (“The basic idea which the claimant hawks –
the notion that there must always be some superevaluator, a single physician who gives the

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factfinder an overview of the entire case – is unsupported by the statutory scheme, or by the
caselaw, or by common sense, for that matter.”); Kaylor v. Astrue, No. 2:10-cv-33-GZS, 2010 WL
5776375, at *4 (D. Me. Dec. 30, 2010) (rec. dec., aff’d Feb. 7, 2011) (“[A]n administrative law
judge may pick and choose among portions of expert opinions[.]”).
Second, as the commissioner points out, see Opposition at 9-10, Moore is inapposite in that
the administrative law judge found that the plaintiff had a medically determinable, albeit
nonsevere, back impairment, see Record at 18. The finding of a nonsevere back impairment,
moreover, was supported by substantial evidence. The administrative law judge noted, for
example, that the March 2012 MRI was normal but for possible muscle spasms, that the plaintiff
had been able to walk daily for exercise, and that he had not required physical therapy, surgery,
epidural injections, or other treatment for pain. See id. In addition, as the commissioner observes,
see Opposition at 8 n.5, Dr. Schnute deemed the plaintiff’s back impairment nonsevere, see Record
at 191.
At oral argument, the plaintiff’s counsel contended that the administrative law judge had
wrongly rejected Dr. Handanos’ back-related limitations on the basis of a purported lack of
sufficiently aggressive treatment when he was not qualified, as a layperson, to criticize the level
of treatment. This argument is unavailing, both because it was not raised in the statement of errors,
see Statement of Errors at 7-9; Farrin v. Barnhart, No. 05-144-P-H, 2006 WL 549376, at *5 (D.
Me. Mar. 6, 2006) (rec. dec., aff’d Mar. 28, 2006) (“Counsel for the plaintiff in this case and the
Social Security bar generally are hereby placed on notice that in the future, issues or claims not
raised in the itemized statement of errors required by this court’s Local Rule 16.3(a) will be
considered waived and will not be addressed by this court.”) (footnote omitted), and because he
cites no authority for the proposition that an administrative law judge cannot draw a reasonable,

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commonsense inference from relatively light or intermittent treatment that a claimant is not as
limited as a treating source contends.
II. Conclusion
For the foregoing reasons, the commissioner’s decision is AFFIRMED.
Dated this 1st day of July, 2015.

/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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