PICARD v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
Filing
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MEMORANDUM DECISION as to 12 SS Statement of Errors/Fact Sheet By MAGISTRATE JUDGE JOHN H. RICH III. (nrg)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
LEONEL PICARD,
Plaintiff
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant
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No. 2:16-cv-00636-JHR
MEMORANDUM DECISION1
This 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 (i) ignored material evidence, (ii) failed to find that his impairments met the criteria
of sections 12.04, 12.06, and 12.08 of Appendix 1 to 20 C.F.R. Part 404, Subpart P (“the Listings”),
(iii) mischaracterized the evidence, (iv) disregarded evidence from “nonacceptable” medical
sources, and (v) erroneously relied on the opinions of agency nonexamining consultants. See
Plaintiff’s Itemized Statement of Errors (“Statement of Errors”) (ECF No. 12) at 1. I conclude that
remand is warranted based on the ALJ’s failure to acknowledge and resolve a material evidentiary
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The plaintiff brought this action under 42 U.S.C. § 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. The parties have
consented to have me conduct all proceedings in this matter, including the entry of judgment. ECF No. 18.
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conflict regarding the plaintiff’s ability to handle work stress.
Accordingly, I vacate the
commissioner’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.
Pursuant to the commissioner’s sequential evaluation process, 20 C.F.R. § 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 had severe impairments of anxiety, depression with bipolar disorder,
and personality disorder, Finding 2, Record at 40; that he had the residual functional capacity
(“RFC”) to perform a full range of work at all exertional levels, but with the following
nonexertional limitations: he was limited to performing simple, routine, competitive, repetitive,
non-abstract tasks on a sustained basis over a normal eight-hour workday and in a stable
environment, with no more than simple decision-making, no close interpersonal interactions with
supervisors or coworkers, no teamwork, no interaction with the public, and no performance of
complex and detailed tasks, Finding 4, id. at 42; that, considering his age (50 years old, defined as
an individual closely approaching advanced age, on the date his application was filed, April 25,
2013)2, education (at least high school), work experience (transferability of skills immaterial), and
RFC, there were jobs existing in significant numbers in the national economy that he could
perform, Findings 6-9, id. at 47; and that he, therefore, had not been disabled from April 25, 2013,
through the date of the decision, June 25, 2015, Finding 10, id. at 48. The Appeals Council
declined to review the decision, id. at 1-4, making the decision the final determination of the
The ALJ erroneously stated that the plaintiff was “a younger individual age 18-49, on the date [his] application was
filed[.]” Nothing turns on the error.
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commissioner, 20 C.F.R. § 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. § 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. § 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.
Sec’y of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).
I. Discussion
On August 14, 2013, agency examining consultant Margaret A. Morrison, Ph.D., evaluated
the plaintiff, diagnosing him with social phobia, major depression, and avoidant personality
disorder and stating, in relevant part:
The following statement is offered regarding [the plaintiff’s] ability to perform
employment activities. [He] should be able to follow work rules. He appears to
struggle with dealing with relating to others appropriately. He appears capable of
using appropriate gross judgment. He does not appear capable of dealing with work
stressors. He should be able to function independently. Difficulties with attention,
concentration, persistence, pace, and memory [were] not observed. He appears
capable of maintaining personal appearance. He may have some difficulties
behaving in an emotionally stable manner. He demonstrated adequate social skills
during today’s evaluation. He is reporting that he has not worked in many years,
in part because he was taking care of his dying parents but predominantly because
of social anxiety.
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Record at 521-22.
Two agency nonexamining psychological consultants, Lewis F. Lester, Ph.D., and Brian
Stahl, Ph.D., subsequently reviewed the then-available record, including the Morrison report. See
id. at 97-103 (initial review by Dr. Lester dated August 30, 2013), 112-19 (reconsideration review
by Dr. Stahl dated April 1, 2014). Both made clear that they rejected Dr. Morrison’s conclusion
that the plaintiff did “not appear capable of dealing with work stressors[,]” explaining:
Opinion that [the plaintiff] does not appear capable of dealing with work stressors
reflects a very severe limitation that is not supported by other evidence. [The
plaintiff’s] limited capacity for stress was considered in the MRFC [mental RFC].
Id. at 103, 119. They described the Morrison opinion, in relevant part, as “an overestimate of the
severity of the [plaintiff’s] restrictions/limitations and based only on a snapshot of [his]
functioning.” Id.
The ALJ stated, in relevant part:
Even though [Dr. Morrison] noted that [the plaintiff] might have problems with
work stress and relating to others, she concluded that [he] would be able to perform
simple work.
***
The opinion of Dr. Morrison is accorded great weight, in light of her expertise and
objectivity. Dr. Morrison’s report was considered by the reviewing state agency
physician. Dr. Morrison did not state that the [plaintiff] was unable to perform
sustained competitive, full-time employment.
Id. at 46. The ALJ then went on to accord “great weight,” as well, to the opinions of the agency
nonexamining consultants on reconsideration (those of Dr. Stahl, with respect to the plaintiff’s
mental impairments, and Robert Hayes, D.O., with respect to his physical impairments),
explaining:
While the undersigned notes that these opinions are from non-examining and nontreating expert sources, they are not inconsistent with the medical evidence as a
whole, and are accorded evidentiary weight in determining the [plaintiff’s RFC]
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identified above. These doctors agreed that the [plaintiff’s] . . . mental impairments
cause only mild to moderate limitations in his functioning, such that he is capable
of performing simple, uncomplicated tasks, with occasional interaction with
supervisors and coworkers, but no public interaction. As their opinion is consistent
with the evidence of record, including evidence received at the hearing level, it is
accorded great weight.
Id. at 47; see also id. at 112-21.
The plaintiff argues that the ALJ “mischaracterized parts of Dr. Morrison’s report[,]”
particularly in stating that Dr. Morrison had “concluded that [the plaintiff] would be able to
perform simple work[,]” and failed to resolve the “critical issue” of the plaintiff’s ability to deal
with work stress. Statement of Errors at 14-15, 19 (quoting Record at 46). At oral argument, his
counsel emphasized that the ALJ had erroneously accorded both the Morrison and Stahl opinions
great weight, failing to recognize, let alone resolve, the material conflict between them.
The commissioner rejoins that the ALJ did not mischaracterize the Morrison report,
asserting that Dr. Morrison’s observations that the plaintiff “should be able to follow work rules,”
was “capable of using appropriate gross judgment,” and was “able to function independently” all
supported a finding that he was capable of performing simple work. Defendant’s Opposition to
Plaintiff’s Statement of Errors (“Opposition”) (ECF No. 15) at 15 (quoting Record at 521).
She argues, in the alternative, that any error in characterizing the Morrison report or in
failing to address the conflict between the Morrison and Stahl opinions is harmless because the
ALJ plainly adopted the RFC assessment of Dr. Stahl, who had taken the Morrison report into
consideration. See id. at 11, 15, 18-19. She reasons that, “[h]ence, any part of Dr. Morrison’s
report that was not consistent [with] or adopted by the State agency medical consultants, w[as] not
ultimately adopted by the ALJ.” Id. at 11. She adds that the ALJ’s adoption of the Stahl
assessment satisfied the requirement of Lancellotta v. Sec’y of Health & Human Servs., 806 F.2d
284 (1st Cir. 1986), that an adjudicator evaluate the impact of a claimant’s mental impairments,
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including stress, on his or her ability to meet the basic demands of work. See id. at 12; Lancellotta,
806 F.2d at 285-86. At oral argument, her counsel further observed that, while Dr. Morrison made
observations about the plaintiff’s work capacity, she did not provide an RFC assessment, as a result
of which she offered no specific functional limitations that the ALJ could have incorporated into
his RFC finding.
The plaintiff has the better argument.
The ALJ indeed mischaracterized the Morrison opinion as standing for the proposition that
the plaintiff was capable of performing simple work. Dr. Morrison expressed no such opinion, see
Record at 521-22, and Dr. Stahl recognized that her finding that the plaintiff did not appear capable
of dealing with work stressors reflected a “very severe limitation[,]” id. at 119. As a result, the
ALJ overlooked a material conflict in the opinion evidence.
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,
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). In this case, as in Boothby v.
Berryhill, No. 2:16-cv-00599-JHR, 2018 WL 1144371 (D. Me. Mar. 2, 2018), the ALJ “erred by
failing to analyze, or even acknowledge, opinion evidence that he purported to give [great] weight,
leaving me unable to conclude that he reached a supportable result via an acceptable analytical
pathway.” Boothby, 2018 WL 1144371, at *3.
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The error is not harmless.
As the First Circuit recognized in Lancellotta, difficulty handling stress can affect a
claimant’s ability to perform “[t]he basic mental demands of competitive, remunerative, unskilled
work[,]” which “include the abilities (on a sustained basis) to understand, carry out, and remember
simple instructions; to respond appropriately to supervision, coworkers, and usual work situations;
and to deal with changes in a routine work setting.” Lancellotta, 806 F.2d at 286 (citation and
internal quotation marks omitted). “A substantial loss of ability to meet any of these basic workrelated activities would severely limit the potential occupational base[,]” which, “in turn, would
justify a finding of disability because even favorable age, education, or work experience will not
offset such a severely limited occupational base.” Id. (citation and internal quotation marks
omitted).
While it is true, as a general proposition, that an ALJ may rely on the opinion of an agency
nonexamining consultant to meet the requirements of Lancellotta, see, e.g., Poulin v. Colvin, No.
1:14-cv-30-JHR, 2015 WL 237326, at *3 (D. Me. Jan. 18, 2015), that is not the case here. Dr.
Stahl rejected that portion of the Morrison opinion indicating that the plaintiff did not appear
capable of dealing with work stressors, yet the ALJ gave both the Stahl and Morrison opinions
great weight without explaining how, if at all, he resolved the underlying conflict. That the
Morrison opinion was not couched as an RFC assessment does not help the commissioner. Dr.
Stahl, who did offer an RFC assessment, made clear that he considered her opinion more restrictive
than his. See Record at 118-19. Accordingly, had he agreed with her opinion in toto, his RFC
assessment presumably would have included additional limitations reflecting the plaintiff’s
apparent inability to deal with work stressors.
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Because the ALJ failed in his duty to resolve a material conflict in the evidence, and the
court is ill-equipped to resolve such conflicts in the first instance, remand is required. See,
e.g., Soto v. Sec’y of Health & Human Servs., 795 F.2d 219, 222 (1st Cir.1986) (“We are illequipped to sort out a record that admits of conflicting interpretations. Accordingly, we believe
the case must be remanded . . . . The [commissioner] may take additional evidence on remand,
and is not obliged to accept the results of claimant’s IQ tests if there is a substantial basis for
believing that claimant was feigning the results. If the [commissioner] does reject the test results
on this basis, however, [she] should state [her] reasons for doing so.”) (footnote
omitted); Rodriguez, 647 F.2d at 222 (“The [commissioner] may (and, under [her] regulations,
must) take medical evidence. But the resolution of conflicts in the evidence and the determination
of the ultimate question of disability is for [her], not for the doctors or for the courts.”).
II. Conclusion
For the foregoing reasons, the commissioner’s decision is VACATED, and the case is
REMANDED for proceedings consistent herewith.
Dated this 16th day of March, 2018.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
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