LIBBY v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 19

REPORT AND RECOMMENDED DECISION re 15 Social Security Statement of Errors/Fact Sheet Objections to R&R due by 2/22/2019 By MAGISTRATE JUDGE JOHN H. RICH III. (lrc)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
KRISTAL L.,
Plaintiff
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant

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No. 2:18-cv-00084-JAW

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 basis that, among other things, the ALJ’s mental residual functional capacity
(“RFC”) determination is unsupported by substantial evidence. See Plaintiff’s Statement of Errors
(“Statement of Errors”) (ECF No. 15) at 14-15. I agree and, accordingly, recommend that the
court 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. §§ 404.1520,
416.920; Goodermote v. Sec’y of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the ALJ

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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.

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found, in relevant part, that the plaintiff met the insured status requirements of the Social Security
Act through December 31, 2019, Finding 1, Record at 55; that she had the severe impairments of
obesity, type 2 diabetes, chronic myofascial pain, fibromyalgia, depression and post-traumatic
stress disorder (“PTSD”), Finding 3, id.; that she had the RFC to perform light work as defined in
20 C.F.R. §§ 404.1567(b) and 416.967(b), except that she had to be allowed to alternate between
sitting and standing and/or walking every hour, but would not need to leave the work station,
could occasionally reach overhead and operate foot controls, could occasionally climb ramps and
stairs, stoop, and crouch, could never climb ladders, ropes, or scaffolds, kneel, crawl, or work near
unprotected heights or dangerous machinery, could attend and concentrate for two-hour blocks of
time, could have no more than minimal changes in work settings and routines, needed to avoid
work involving a variety of instructions or tasks but could understand and carry out simple oneand two-step instructions, could understand and carry out “detailed but uninvolved” written or oral
instructions involving a few concrete variables from standardized situations, could make simple
work-related decisions, and could not do work that required interaction with the public, Finding 5,
id. at 57; that, considering her age (35 years old, defined as a younger individual, on her alleged
disability onset date, May 30, 2014), 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 she could perform, Findings 7-10, id. at 59; and that she, therefore, had
not been disabled from May 30, 2014, her alleged disability onset date, through the date of the
decision, February 15, 2017, Finding 11, id. at 60-61. The Appeals Council declined to review the
decision, id. at 1-4, 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).

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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 her 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.
Sec’y of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).
The statement of errors also implicates 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), 416.920(f); Yuckert, 482 U.S. at 146 n.5. 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
Among other arguments, the plaintiff seeks remand on the basis that, in determining her
mental RFC, the ALJ improperly relied on the opinion of an agency nonexamining consultant,
David R. Houston, Ph.D., that was superseded by material new evidence and, after rejecting the
opinion of treating mental health provider Terri Quatrano-Simpson, L.C.S.W., filled the void by
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interpreting raw medical evidence. See Statement of Errors at 2, 4, 14-15; see also, e.g., Gordils
v. Sec’y of Health & Human Servs., 921 F.2d 327, 329 (1st Cir. 1990) (Although an ALJ is not
precluded from “rendering common-sense judgments about functional capacity based on medical
findings,” she “is not qualified to assess residual functional capacity based on a bare medical
record.”).
The commissioner contends that remand is unwarranted because (i) the plaintiff fails to
identify what evidence the ALJ wrongly interpreted or any “limitations the ALJ should have
included[,]” (ii) “the ALJ did not use her own lay judgment in arriving at the RFC,” but, rather,
relied on the Houston opinion, (iii) the ALJ explained that observations of the plaintiff’s mental
status were not supportive of a conclusion that she lacked the abilities described in the RFC
finding, (iv) the plaintiff has presented no evidence, apart from a new diagnosis of PTSD, that she
had any symptoms or limitations different from those addressed by Dr. Houston, whose
consideration of her anxiety necessarily included consideration of PTSD symptoms, and (v) the
plaintiff has not separately challenged either the ALJ’s discounting of her subjective statements or
her assignment of little weight to the Quatrano-Simpson opinion. Defendant’s Opposition to
Plaintiff’s Statement of Errors (“Opposition”) (ECF No. 16) at 14-17.
I conclude that the ALJ’s assessed mental RFC is unsupported by substantial evidence,
warranting remand.
“[T]he amount of weight that can properly be given the conclusions of non-testifying,
nonexamining physicians will vary with the circumstances, including the nature of the illness and
the information provided the expert.” Rose v. Shalala, 34 F.3d 13, 18 (1st Cir. 1994) (citations
and internal quotation marks omitted).

“In some cases, written reports submitted by

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nontestifying, nonexamining physicians cannot alone constitute substantial evidence, although
this is not an ironclad rule.” (citations and internal quotation marks omitted).
“This court has noted that there is no bright-line test of when reliance on a nonexamining
expert consultant is permissible in determining a claimant’s physical or mental RFC, although
factors to be considered include the completeness of the consultant’s review of the full record and
whether portions of the record unseen by the consultant reflect material change or are merely
cumulative or consistent with the preexisting record and/or contain evidence supportably
dismissed or minimized by the [ALJ].” LaFlamme v. Colvin, No. 1:14-cv-57-DBH, 2015 WL
519422, at *8 (D. Me. Feb. 6, 2015) (citation and internal punctuation omitted).
When the plaintiff filed her concurrent SSD and SSI applications on July 3, 2014, she
claimed disability based on a combination of physical and mental impairments, identifying
depression, anxiety, panic disorder, and attention-deficit hyperactivity disorder as the mental
conditions on which her claim was based. See Record at 341, 355. In his January 2, 2015,
assessment, Dr. Houston found that the medical evidence of record supported a diagnosis of
depression, which he deemed severe. See id. at 347, 361 (assessing mild restriction in activities
of daily living, moderate difficulties in maintaining social functioning, moderate difficulties in
maintaining concentration, persistence, or pace, and no episodes of decompensation). He then
assessed the plaintiff’s mental RFC, finding her capable of carrying out simple, but not complex,
tasks in a normal schedule, interacting appropriately with co-workers and supervisors but not with
the public, and adapting to simple changes in routine. See id. at 349-51, 363-65.
The ALJ’s RFC determination comports with the Houston assessment. She deemed the
plaintiff capable of attending and concentrating for two-hour blocks of time with no more than
minimal changes in work settings and routines, understanding and carrying out simple one- and

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two-step instructions and “detailed but uninvolved” written or oral instructions involving a few
concrete variables from standardized situations, and making simple work-related decisions, but
unable to do work requiring interaction with the public. See Finding 5, id. at 57.
However, the plaintiff submitted new evidence following the issuance of the Houston
opinion that included notes of her Common Ties Mental Health Services (“Common Ties”) case
manager, notes of home-support and community-support staff of Ascentria Community Services
(“Ascentria”), and the notes and opinion of L.C.S.W. Quatrano-Simpson. See Statement of Errors
at 4, 13-14 & n.21; see also, e.g., Record at 1105-15, 1271-81, 1312-23.
In a Mental Impairment Questionnaire dated July 1, 2016, L.C.S.W. Quatrano-Simpson
indicated, inter alia, that she was treating the plaintiff for chronic PTSD, the symptoms of which
were isolation, hypervigilance, intrusive thoughts, fear, avoidance, daily anxiety, and weekly panic
attacks, and that the symptoms most likely to be present in a regular work environment were
anxiety, panic attacks, isolation, avoidance, and nausea. See id. at 1317, 1319-20.
As the plaintiff observes, see Statement of Errors at 13-14 n.21, the Common Ties and
Ascentria materials indicate that she complained of, and received support in dealing with, many of
these alleged symptoms. For example, her Common Ties case manager noted the plaintiff’s
difficulties scheduling appointments, see id. at 1105, and organizing herself, see id. at 1108-09,
1111, and an Ascentria treatment plan dated June 14, 2016, set forth goals of assisting her with
creating and following a daily routine, making a food shopping list prior to shopping to help remain
within budget, processing stressors, developing and utilizing coping skills, accessing community
resources to reduce isolation, learning social skills, and learning the bus system to become more
independent, see id. at 1273.

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This evidence, as a whole, reasonably can be viewed as calling into question Dr. Houston’s
findings at Step 2, including his finding that the plaintiff had only a mild restriction in activities of
daily living, and, ultimately, his RFC assessment.2
The ALJ herself seemingly viewed this evidence as material, assessing not only a severe
impairment of depression, as found by Dr. Houston, but also a severe impairment of PTSD.
Compare Finding 3, id. at 55 with id. at 347, 361. Yet, in adopting the Houston opinion, she
necessarily assessed no limitations flowing from the plaintiff’s severe PTSD.
The commissioner cites Dubord v. Colvin, No. 2:16-cv-00035-JHR, 2016 WL 7396703, at
*3 (D. Me. Dec. 20, 2016), for the proposition that Dr. Houston’s consideration of anxiety
necessarily included consideration of any PTSD symptoms. See Opposition at 16. Dubord is
distinguishable. In that case, the court found that an ALJ’s “examination of plaintiff’s anxiety
necessarily covered the constellation of symptoms associated with his alleged PTSD[.]” Dubord,
2016 WL 7396703, at *2-3 (citation and internal quotation marks omitted). In this case, by
contrast, Dr. Houston did not examine anxiety in assessing the plaintiff’s mental RFC.
While Dr. Houston considered the plaintiff’s allegation of anxiety, he did not find a
medically determinable anxiety impairment. See Record at 346-47, 360-61. Therefore, he did not
assess any limitations flowing therefrom. See id. at 347, 361 (notation by Dr. Houston that the
limitations associated with plaintiff’s depression did not meet Listing 12.04, with cross-reference
to his mental RFC assessment); see also, e.g., Social Security Ruling 96-7p, reprinted in West’s
Social Security Reporting Service, Rulings 1983-1991 (Supp. 2018) (“SSR 96-7p”), at 132 (“No
symptom or combination of symptoms can be the basis for a finding of disability, no matter how

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As the commissioner points out, see Opposition at 11 & n.3, Dr. Houston considered a June 2014 psychosocial
assessment by Common Ties, see Record at 347, 361. However, this assessment predated the provision of services
by Common Ties. See id. at 866-75.

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genuine the individual’s complaints may appear to be, unless there are medical signs and
laboratory findings demonstrating the existence of a medically determinable physical or mental
impairment(s) that could reasonably be expected to produce the symptoms.”).
Nor did the ALJ incorporate any PTSD-related limitations assessed by L.C.S.W. QuatranoSimpson into her RFC determination. While she purported to give that opinion “little weight,” she
did not explain how. See Record at 59. Insofar as appears, apart from assessing a severe
impairment of PTSD, she gave it no weight, simply adopting the Houston RFC opinion, which, as
noted above, predated the PTSD diagnosis, the Quatrano-Simpson opinion, the Ascentria evidence,
and much of the Common Ties evidence.
While “a finding that a particular impairment is severe does not necessarily result in a
finding of related limitations on the ability to perform work-related functions,” DuBois v.
Berryhill, No. 1:17-CV-00076-JDL, 2017 WL 6000340, at *4 (D. Me. Dec. 3, 2017) (rec. dec.,
aff’d Feb. 28, 2018) (citations and internal quotation marks omitted), the ALJ shed no light on
whether she found PTSD-related limitations, if not, why not, and if so, how her RFC accounted
for them. See Record at 55-59.3 Nor did she indicate that she had assessed a severe PTSD
impairment simply to give the plaintiff the benefit of the doubt. See id. Absent some reasoned
explanation, her mental RFC finding cannot be discerned to be supported by substantial evidence.
See, e.g., Picard v. Berryhill, No. 2:16-cv-00636-JHR, 2018 WL 1370681, at *3 (D. Me. Mar. 16,
2018) (“[W]hen failures to explicate and/or even address material issues prevent a reviewing court

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The brief explanation that the ALJ did provide for her mental RFC assessment skirted that issue. See Record at 58
(explaining that “[o]bservations of the [plaintiff]’s mental status are not supportive of a conclusion that she lacks the
abilities described in the [RFC] assessment”; stating that providers more often than not noted the plaintiff to be “alert,
cooperative, ‘normal,’ ‘appropriate,’ or ‘stable’ in mood and affect, and normal with respect to attention and
concentration”) (citations omitted).

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from concluding that the ALJ reached a supportable result via an acceptable analytical pathway,”
reversal and remand are warranted.).4
This, in turn, undermined the ALJ’s reliance at Step 5 on vocational testimony predicated
on the flawed RFC determination, warranting remand. See, e.g., Arocho v. Sec’y of Health
& Human Servs., 670 F.2d 374, 375 (1st Cir. 1982) (responses of a vocational expert are relevant
only to the extent offered in response to hypothetical questions that correspond to the medical
evidence of record).
II. Conclusion
For the foregoing reasons, I recommend that the commissioner’s decision be VACATED
and the case REMANDED for 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,

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The commissioner cites Pressey v. Berryhill, No. 2:16-cv-00425-JDL, 2017 WL 2731308, at *6 (D. Me. June 25,
2017) (rec. dec., aff’d Aug. 28, 2017), Peak v. Colvin, No. 2:15-cv-67-JHR, 2015 WL 7681256, at *2 (D. Me. Nov.
24, 2015), and Davis v. Colvin, No. 1:14-cv-343-JHR, 2015 WL 3937423, at *4 (D. Me. June 25, 2015), for the
proposition that the plaintiff’s failure to point to any evidence that the ALJ wrongly interpreted or to identify any
limitations that the ALJ should have included in assessing her RFC is fatal to her bid for remand. See Opposition at
14, 16. Those cases are distinguishable in that they do not involve an ALJ’s failure to provide an adequate explanation
for her reliance on the opinion of an agency nonexamining consultant who did not have the benefit of review of
seemingly material evidence postdating his opinion. Compare Pressey, 2017 WL 2731308, at *5 (no reversible RFC
error when ALJ gave claimant the “benefit of the doubt” in deeming him more physically restricted than had any
expert whose opinion was of record); Peak, 2015 WL 7681256, at *3 (no reversible RFC error when ALJ assessed an
RFC more favorable to the claimant than the evidence would otherwise support); Davis, 2015 WL 3937423, at *4
(same); cf. Staples v. Berryhill, No. 1:16-cv-00091-GZS, 2017 WL 1011426, at *4-5 (D. Me. Mar. 15, 2017) (rec.
dec., aff’d Mar. 30, 2017) (reversible error in assessing the claimant’s mental RFC when, rather than giving the
claimant “the benefit of the doubt” or assessing an RFC more favorable than the evidence would otherwise support,
ALJ rejected treating physician opinion and conceded that opinions of agency nonexamining consultants that mental
impairments were nonsevere were undermined by later-submitted evidence, thereby assessing a mental RFC
unsupported by substantial evidence).

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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 8th day of February, 2019.

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

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