STAPLES v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
Filing
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REPORT AND RECOMMENDED DECISION re 12 Social Security Statement of Errors/Fact Sheet Objections to R&R due by 8/22/2016 By MAGISTRATE JUDGE JOHN H. RICH III. (mjlt)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DONALD STAPLES,
Plaintiff
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant
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No. 2:15-cv-392-DBH
REPORT AND RECOMMENDED DECISION1
The plaintiff in this well-traveled Social Security Disability (“SSD”) case contends that the
administrative law judge committed several reversible errors, at Steps 2 and 5 of the
commissioner’s sequential evaluation process, including mishandling the medical evidence,
wrongly relying upon an unsupported medical opinion, wrongly weighing retrospective opinions,
and failing to comply with the remand order of the Appeals Council. For the reasons that follow,
I recommend that the court vacate the commissioner’s decision and remand the action for further
proceedings.
In
accordance
with
the
commissioner’s
sequential
evaluation
process,
20
C.F.R. § 404.1520; 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
1
This action is properly brought under 42 U.S.C. § 405(g). 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 March
16, 2016, 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.
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requirements of the Social Security Act through March 31, 1992, Finding 1, Record at 620; that,
through the date last insured, he suffered from a generalized anxiety disorder, an impairment that
was not severe, Findings 3-4, id. at 621-22; that, through the date last insured, he accordingly was
not under a disability, as that term is defined in the Social Security Act, Finding 5, id. at 625; that,
in the alternative, through the date last insured, his anxiety-related disorder was severe, but did
not meet or medically equal the criteria of any impairment listed in Appendix 1 to 20 C.F.R. Part
404, Subpart P (the “Listings”), Findings 6-7, id.; that, through the date last insured, he had the
residual functional capacity (“RFC”) to perform a full range of work at all exertional levels except
that he was limited to simple work with no public contact, Finding 8, id. at 626; that, through the
date last insured, he was unable to perform any past relevant work, Finding 9, id. at 629; that, given
his age (44 years old, on the date last insured), education (at least high school), work experience,
and RFC, and using the Medical-Vocational Rules in Appendix 2 to 20 C.F.R. Part 404, Subpart
P, as a framework for decision-making, there were jobs existing in significant numbers in the
national economy through the date last insured that he could have performed, Findings 10-13, id.
at 629-30; and that he, therefore, had not been disabled from August 1, 1988, through the date last
insured, March 31, 1992, Finding 14, id. at 630. The Appeals Council declined to review the
decision, id. at 595-98, making the decision the final determination of the commissioner, 20 C.F.R.
§ 404.981; 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); 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 the
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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 2 of the sequential evaluation process.
Although a claimant bears the burden of proof at Step 2, it is a de minimis burden, designed to do
no more than screen out groundless claims. McDonald v. Secretary of Health & Human Servs.,
795 F.2d 1118, 1124 (1st Cir. 1986). When a claimant produces evidence of an impairment, the
commissioner may make a determination of non-disability at Step 2 only when the medical
evidence “establishes only a slight abnormality or [a] combination of slight abnormalities which
would have no more than a minimal effect on an individual’s ability to work even if the
individual’s age, education, or work experience were specifically considered.” Id. (quoting Social
Security Ruling 85-28).
The statement of errors also implicates 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); 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. Step 2
The plaintiff argues that the administrative law judge erred in “concluding that the analysis
should terminate at Step 2.” Plaintiff’s Itemized Statement of Errors (“Itemized Statement”) (ECF
No. 12) at 5. He does not identify in this section of his brief the “mental impairments,” id., that he
contends should have been found to be severe at Step 2, nor does he suggest how reaching such a
3
determination would necessarily change the outcome of his application, as is required by
established case law in this district. E.g., Bolduc v. Astrue, Civil No. 09-220-B-W, 2010 WL
276280, at *4 n.3 (D. Me. Jan. 19, 2010) (and cases cited therein). Ordinarily, this omission would
mean that he is not entitled to remand based on this argument.
The difference in this case, however, is that the administrative law judge who made the
finding at Step 2 that the plaintiff had no severe impairments was acting on remand after a different
administrative law judge had found that the plaintiff’s anxiety disorder was severe, but that it did
not affect the occupational base of unskilled work. Record at 18-21, 35-38.
In Bolduc, I observed in a footnote that the plaintiff’s failure to show that the error she had
alleged was not harmless doomed her appeal at Step 2. 2010 WL 276280, at *4 n.3. The
administrative law judge in that case did not reverse an earlier decision that was favorable to the
claimant, as was the case here. In this case, the administrative law judge came to the opposite
conclusion at Step 2 from that made by the first judge without explaining that difference. Record
at 622-25. See Magee v. Astrue, No. 4:11-cv-48-RLY-TAB, 2012 WL 1156429 (S.D. Ind. Apr. 6,
2012)(administrative law judge on remand with same medical record may not change severe
finding to not severe without explanation for doing so).
This court has addressed similar reversals in the past. In those cases, I noted that
reconsideration of the finding at Step 2 that a claimant’s impairment is severe is foreclosed when
the remand order does not specifically direct the administrative law judge to undertake that task.
Day v. Astrue, No. 1:12-cv-141-DBH, 2012 WL 6913439, at *5 (D. Me. Dec. 30, 2012); Maddocks
v. Astrue, No. 1:11-cv-461-NT, 2012 WL 5255197, at *3 (D. Me. Sept. 30, 2012) (in the absence
of “persuasive evidence that the administrative law judge labored under a basic misconception of
the evidence, it would be inappropriate to disturb prior administrative findings that have never
4
been challenged”). Nothing in my earlier decision recommending that the first decision be vacated
may reasonably be construed to direct the administrative law judge to revisit the Step 2 finding. 2
Report and Recommended Decision, Staples v. Astrue, Civil No. 09-440-P-S (ECF No. 18).
Record at 705-18. See also Drummond v. Commissioner of Soc. Sec., 126 F.3d 837, 842 (6th Cir.
1997) (administrative law judge may not on remand change finding of severe to not severe absent
evidence of improvement in claimant’s condition).
This court’s opinion in 2010 that vacated the decision of the first administrative law judge
at Step 5 did not permit the second administrative law judge to reject the Step 2 finding of severity
by the first administrative law judge. Because that error unfairly deprived the plaintiff of a finding
in his favor at Step 2, where the burden of proof is de minimis, the plaintiff is entitled to yet another
remand.
For the benefit of the parties on remand, and in the hope of minimizing the time and effort
to be spent in yet another consideration by the commissioner, I will briefly address the plaintiff’s
arguments concerning the administrative law judge’s alternate findings at Step 5.
B. Step 5 Issues
1. Law of the Case
The plaintiff contends that the administrative law judge’s decision at Step 5 was “precluded
by the law of the case” and was impermissibly based upon “his lay judg[]ment . . . in crafting an
RFC finding which was contradicted by all of [the] assessments completed by the acceptable
medical sources of record.” Itemized Statement at 14. The defendant does not respond to the
plaintiff’s law-of-the-case argument.
Following an initial decision by the second administrative law judge that found, inter alia, the plaintiff’s mental
impairment to be non-severe at Step 2, the Appeals Council remanded the case with a direction that the administrative
law judge “reevaluate the severity of the claimant’s mental impairments before his date last insured with consideration
of all of the relevant medical evidence of record.” Record at 740.
2
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Specifically, the plaintiff describes his law-of-the-case argument as follows:
This very issue of whether an ALJ could make his own assessment of RFC without
a supporting medical opinion in this case was presented to this Court previously in
docket No. 09-cv-440. It was decided adversely to the Commissioner there and
remains the law of the case.
Id. at 15.
At first glance, this appears to be merely the plaintiff’s invocation of the precept of Social
Security law that an administrative law judge may not, in most instances, craft an RFC based on
his own interpretation of raw medical evidence or that an RFC must be supported by substantial
evidence, rather than an instance appropriate for application of the doctrine of law of the case. As
I understand the plaintiff’s brief argument, however, he apparently means to contend that, because
this court found when it first remanded this claim in 2010 that the RFC assessment made for the
plaintiff at that time was not supported by substantial evidence in the record, the RFC assessment
in this case, with no further medical evidence in the record, must be found to suffer from a similar
lack of support.
This argument misapprehends my recommended decision on the plaintiff’s first appeal. I
did not conclude in that recommended decision that the administrative law judge could only have
fashioned an RFC for the plaintiff limited to the raw medical evidence that she did not reject.
Rather, I held that the administrative law judge at that time did not “clarif[y] how she derived the
specific components of her RFC from” the plaintiff’s subjective allegations, the VA disability
ratings, and Dr. Newcomb’s 2000 mental status report. Report and Recommended Decision,
Staples v. Astrue, No. 2:09-cv-440-GZS (“2010 Decision”) (ECF No. 18), at 6. That conclusion
does not prevent another administrative law judge from reaching a supportable RFC based on the
same evidence, so long as the sources of that RFC are specified.
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2. Lack of Medical Expert Evidence
The plaintiff next faults the administrative law judge for reaching an RFC without the
guidance of expert analysis of his functional capacity. Itemized Statement at 15-[16]. The
defendant responds that the administrative law judge was not required to consult a medical expert
for his alternate ruling at Step 5 because, in this alternative finding, he found the plaintiff’s anxietyrelated disorder to have been severe at the relevant time, and that finding is more favorable to the
plaintiff than would be warranted by the five state-agency physician reports, citing Bowden v.
Colvin, No. 1:13-CV-201-GZS, 2014 WL 1664961, at *4 (D. Me. Apr. 25, 2014). To undermine
the limitation in his RFC to simple work with no public contact arising from this impairment, the
plaintiff cites only the reports of Drs. Luongo and Newcomb, Itemized Statement at 16-17, which
the administrative law judge supportably rejected.
The plaintiff contends that the administrative law judge gave invalid reasons for rejecting
the opinions of Dr. Luongo, a consulting psychologist, that the plaintiff was “disabled from
engaging in sustained gainful activity . . . since approximately 1991,” and of, Dr. Newcomb, a
consulting psychiatrist, who concluded that the plaintiff “was disabled by anxiety, depression and
PTSD at least by his D[ate] L[ast] I[nsured.]” Itemized Statement at 7, 8.
First, and most important, these opinions about the ultimate issue in this proceeding address
an issue that is reserved to the commissioner, and accordingly cannot be given any “special
significance.” Braley v. Barnhart, No. 04-176-B-W, 2005 WL 1353371, at *4 (D. Me. June 7,
2005); see also 20 C.F.R. § 404.1527(e). While the administrative law judge was not required to
give “good reasons” for rejecting these opinions, because they did not come from treating sources,
Waddell v. Colvin, No. 2:14-cv-105-JHR, 2015 WL 1723682, at *6 (D. Me. Apr. 14, 2015), he did
give good reasons in this case, including that both consultants examined the plaintiff more than 10
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years after his date last insured, did not offer opinions dating back to the alleged onset date, and
disagreed in significant respects. Record at 624.
Contrary to the plaintiff’s contention, Itemized Statement at 8, it is not reversible error for
the administrative law judge to note how long after the date last insured the consultants saw the
plaintiff and that both examinations resulted from referrals by the plaintiff’s attorney, when he also
gives other reasons for rejecting their opinions. Waddell, 2015 WL 1723682 at *7. Similarly, the
assertion that the disagreements between Dr. Newcomb and Dr. Luongo were “not related to the
issue . . . whether there was a severe condition[,]” Itemized Statement at 9, is incorrect. The two
consultants may have reached the same conclusion on the issue reserved to the commissioner, but
the fact that they gave very different reasons for doing so is quite relevant.
This alleged error would not entitle the plaintiff to remand.
3. Basis for RFC Finding
The plaintiff’s next challenge directly targets the RFC assigned to him by the
administrative law judge. Id. at 17-19. He contends that the administrative law judge failed to
explain adequately how he derived the RFC, “[t]o the extent that the ALJ sought to base his mental
RFC on something other than the examiners[’] reports[.]” Id. at 17. Specifically, he asserts that
it was reversible “error for the ALJ to acknowledge that Dr. Abraham found a limitation in memory
and concentration without finding even a moderate corresponding limitation in the area of
concentration, persistence or pace.” Id. He cites no authority in support of this assertion,3 and he
does not explain how such a limitation would affect the outcome of his claim for benefits.
3
But see, e.g., Eltayyeb v. Barnhart, No. 02 Civ. 925(MBM), 2003 WL 22888801, at *6-*7 (S.D.N.Y. Dec. 8, 2003)
(moderate impairments in most work-related areas not inconsistent with simple work); Ge Xiong v. Colvin, 995
F.Supp.2d 958, 988 (D. Minn. 2014) (same).
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The defendant again does not respond directly to this argument, instead repeating her
position that the administrative law judge’s rejection of the opinions of Drs. Luongo and Newcomb
was not error. Opposition at 15-17. The administrative law judge’s treatment of this issue is
troubling. He discounts the plaintiff’s credibility in reporting the intensity and limiting effects of
his mental impairment (a finding that the plaintiff does not contest); notes the relative lack of
mental health treatment during the operative period; and notes Dr. Abraham’s findings from
February 1, 1991, and their inconsistencies with the plaintiff’s own contemporaneous reports of
his activities of daily living, as well as his report that he stopped working because he was “fed up”
with working and paying child support. Record at 628. However, he does not explain how this
evidence led to a limitation of simple work with no public contact.
This court has not required an administrative law judge to specify the evidence in the record
upon which his or her opinion is based in order to find that opinion supported by substantial
evidence in the record. Rawson v. Astrue, Civil No. 09-469-BW, 2010 WL 2923902, at *4 (D.
Me. July 19, 2010). In Social Security appeals brought to this court in the past, anxiety-related
symptoms and difficulty concentrating have resulted in a limitation to “simple work that involves
no public contact.” E.g., Hesson v. Colvin, No. 2:15-cv-106-DBH, 2015 WL 7259747, at *6 (D.
Me. Sept. 29, 2015).
Still, when a claimant raises the issue, the connection between a functional limitation
included in an RFC and some particular evidence in the record must be apparent. See, e.g., Griffard
v. Colvin, Civil Action No. 5:12-CV-129 (MTT), 2013 WL 4039400, at *6 (M.D. Ga. Aug. 7,
2013); Emory v. Astrue, Civil Action File No. 1:11-CV-2908-TWT-JFK, 2013 WL 1010660, at
*14 (N.D. Ga. Feb. 5, 2013). All anxiety-related disorders cannot be presumed to result only and
always in an RFC limitation to simple work. The absence of such a connection demonstrates that
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the administrative law judge drew a conclusion that either was without support in the evidence or
was beyond his capacity as a lay person to draw and, therefore, would also make it necessary to
remand this case once again.
4. Social Security Ruling 83-20
The plaintiff’s final argument is based upon an allegation that the administrative law judge
failed to comply with Social Security Ruling 83-20 because he was “indisputably . . . found
disabled by the VA[,]” and the evidence on the issue of disability before the date last insured was
ambiguous, requiring the administrative law judge to use a medical advisor and to infer an onset
date for the alleged disability. Itemized Statement at 20. This argument is based upon an incorrect
reading of the Ruling. As this court held in Dennett v. Astrue, Civil No. 08-97-B-W, 2008 WL
4876851, at *6 (D. Me. Nov. 11, 2008), Ruling 83-20 “contemplates that a decision of disability
by the agency’s own adjudicators, not another body’s disability decision, triggers the need to apply
the ruling.” See also Saucier v. Social Sec. Admin. Comm’r, Civil No. 2:13-cv-00230-NT, 2014
WL 4411023, at *4 (D. Me. Sept. 5, 2014). The Ruling is not applicable here.
II. Conclusion
For the foregoing reasons, I recommend that the commissioner’s decision be VACATED
and the case remanded for further proceedings consistent herewith.
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
and request for oral argument before the district judge, if any is sought, within fourteen (14)
days after being served with a copy thereof. A responsive memorandum and any request for
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oral argument before the district judge 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 3rd day of August, 2016.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
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