KIRBY v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 21

REPORT AND RECOMMENDED DECISION re 15 Social Security Statement of Errors/Fact Sheet Objections to R&R due by 9/21/2021 By MAGISTRATE JUDGE JOHN H. RICH III. (lrt)

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DAWN K.,
Plaintiff
v.
KILOLO KIJAKAZI,
Acting Commissioner of Social Security,1
Defendant

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No. 2:20-cv-00245-GZS

REPORT AND RECOMMENDED DECISION2
This Social Security Disability (SSD) appeal raises the question of whether the
administrative law judge (ALJ) supportably found the plaintiff capable of performing past relevant
work as a retail sales clerk and a receptionist and, in the alternative, other jobs existing in
significant numbers in the national economy. The plaintiff seeks remand on the bases that the ALJ
failed to recognize hyperacusis/misophonia and insomnia as severe medically determinable
impairments, thereby omitting any resulting functional limitations, and erred in assessing the
functional limitations attributable to two of the impairments she did deem severe, migraine
headaches and carpel tunnel syndrome (CTS). See Plaintiff’s Itemized Statement of Errors
(“Statement of Errors”) (ECF No. 15) at 3-18.3 I agree that the ALJ’s handling of the plaintiff’s

1

Pursuant to Federal Rule of Civil Procedure 25(d), Kilolo Kijakazi is substituted as the defendant in this matter.
This action is properly brought under 42 U.S.C. § 405(g). 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.
3
The plaintiff also complained in her statement of errors that the ALJ failed to recognize fibromyalgia as a medically
determinable impairment, see Statement of Errors at 9-10; however, during oral argument, her counsel withdrew that
point.
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CTS warrants remand and, on that basis, 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;
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 December 31, 2020, Finding 1, Record at 17; that she had the severe impairments of
obesity, CTS, hyperlipidemia, bursitis in the hip, plantar fasciitis, headaches, and pseudotumor
cerebri, Finding 3, id.; that she had the residual functional capacity (RFC) to perform light work
as defined in 20 C.F.R. § 404.1567(b) except that she could occasionally climb ramps and stairs,
never climb ladders, ropes, and scaffolds, occasionally balance, stoop, kneel, crouch, and crawl,
frequently handle with her bilateral hands, and needed to avoid concentrated exposure to noise and
to hazards such as heavy machinery, moving mechanical parts, and unprotected heights, Finding
5, id. at 19; that she was capable of performing past relevant work as a retail sales clerk and a
receptionist, which did not require the performance of work-related activities precluded by her
RFC, Finding 6, id. at 26; that, in the alternative, considering her age (33 years old, defined as a
younger individual, on her alleged disability onset date, July 15, 2015), 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, id. at 27-28; and that she,
therefore, had not been disabled from July 15, 2015, her alleged onset date of disability, through
the date of the decision, June 21, 2019, Finding 11, id. at 28. The Appeals Council declined to
review the decision, id. at 2-5, making the decision the final determination of the commissioner,
20 C.F.R. § 404.981; 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); 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 and, in the alternative, Step 5 of the sequential evaluation process.
At Step 4, the claimant bears the burden of proving inability to return to past relevant work. 20
C.F.R. § 404.1520(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); Social Security Ruling 82-62 (“SSR 82-62”), reprinted in West’s Social
Security Reporting Service Rulings 1975-1982, at 813.
At Step 5 of the sequential evaluation process, 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); Yuckert, 482 U.S. at 146 n.5; 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
This case raises the question of whether, if an ALJ explicitly disagrees with an agency
nonexamining consultant’s omission of a limitation on the basis that it is at odds with the same
evidence available to the consultant, and then impermissibly construes raw medical evidence to
fill the void, the error is harmless because the limitation is more favorable to the claimant than the
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record would otherwise support. In accordance with Staples v. Berryhill (“Lisa Staples”), No.
1:16-cv-00091-GZS, 2017 WL 1011426 (D. Me. Mar. 15, 2017) (rec. dec., aff’d Mar. 30, 2017),
and its progeny, I conclude that it is not.
In summarizing the record before her, the ALJ noted, in relevant part, that:
1.

The plaintiff complained to treating neurologist Christine Lu-Emerson, M.D., on

September 12, 2016, “of tingling in her hands and that her right hand was weaker[,]” at which time
Dr. Emerson diagnosed right CTS and indicated that additional testing would be done. Record at
22.
2.

Dr. Emerson noted on September 15, 2017, that the plaintiff was complaining of

CTS symptoms in her left wrist and was dropping things with her right hand. Id.
3.

Orthopedic surgeon Peter E. Guay, D.O., noted on February 23, 2018, that the

plaintiff had undergone right carpal tunnel release surgery 16 days earlier, initially had some issues
with overusing her right upper extremity following the procedure, had “gentle full range of
motion” on examination, and “could engage in normal activities, but needed to avoid aggressive
use of her right hand.” Id. at 22-23.
4.

Stephen Hull, M.D., a specialist in physical medicine and rehabilitation, indicated

on April 4, 2019, that the plaintiff’s left-sided CTS was mild on electro diagnostics. See id. at 23.
The ALJ noted that, on November 20, 2017, and April 20, 2018, respectively, agency
nonexamining consultants Robert Hayes, D.O., and Donald Trumbull, M.D., had assessed the
plaintiff’s physical RFC, with both indicating that the plaintiff could occasionally lift and/or carry
20 pounds, could never climb ladders, ropes, or scaffolds, had no limitations in balancing, could
occasionally perform all other postural movements, and needed to avoid concentrated exposure to
hazards. See id. at 25.

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She explained that she found the Hayes and Trumbull opinions “generally persuasive” with
respect to the plaintiff’s exertional limitations, most postural limitations, and hazard limitations,
“as they are consistent with the medical evidence of record.” Id. However, she stated, “Dr. Hayes
and Dr. Trumbull did not include any manipulative limitations for the [plaintiff], which is
unpersuasive, as it is inconsistent with the treatment notes, as the claimant was diagnosed with
[CTS] in both hands and had to have surgery on her right hand.” Id. (citations omitted).
The ALJ included, in her RFC finding, the following limitation not assessed by Dr. Hayes,
Dr. Trumbull, or any other medical source: that the plaintiff “can frequently handle with the
bilateral hands.” Finding 5, id. at 19. She described her RFC determination as supported, inter
alia, “by medical findings[,]” including those pertaining to CTS. Id. at 26.
As the commissioner concedes, see Defendant’s Opposition to Plaintiff’s Statement of
Errors (“Opposition”) (ECF No. 17) at 15, the ALJ erroneously construed raw medical evidence
to craft a CTS-related limitation, see, 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.”). Nonetheless, she contends that the
ALJ erred in the plaintiff’s favor, precluding remand, a proposition for which she cites Davis v.
Colvin, No. 1:14-cv-343-JHR, 2015 WL 3937423, at *5 (D. Me. June 25, 2015), Bowden v. Colvin,
No. 1:13-CV-201-GZS, 2014 WL 1664961, at *4 (D. Me. Apr. 25, 2014), and Gonsalves v. Astrue,
Civil No. 09-191-BW, 2010 WL 1935753, at *6 (D. Me. May 2010) (rec. dec., aff’d June 16,
2010). See id.
The commissioner reasons that, because Dr. Trumbull had the benefit of review of records
reflecting the plaintiff’s CTS diagnoses in January 2017 and November 2017 and right carpal

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tunnel release surgery in February 2018, the ALJ’s assessment of any CTS-related limitation
necessarily was more favorable than the evidence otherwise supported. See id. Therefore, she
asserts, to agree with the plaintiff’s contention would require this court “to engage in precisely the
interpretation of raw medical data . . . that the [claimant] correctly argues, in the same document,
is forbidden by Social Security law.” Id. (quoting Becky K. G. v. Saul, No. 1:20-cv-00089-GZS,
2020 WL 7418974, at *6 (D. Me. Dec. 17, 2020) (rec. dec., aff’d Jan. 7, 2021) (internal punctuation
omitted)).
At oral argument, the plaintiff’s counsel countered that this court has made clear that when,
as here, an ALJ rejects an agency nonexamining consultant’s opinion as insufficiently restrictive
and fills the gap by impermissibly interpreting raw medical data, she has not assessed an RFC
more favorable than the record would otherwise support, a proposition for which he cited, inter
alia, Norman T. v. Berryhill, No. 1:17-cv-00323-GZS, 2018 WL 3105778 (D. Me. June 24, 2018)
(rec. dec., aff’d Aug. 6, 2018). He reasoned that, while the ALJ correctly recognized a need for
functional limitations related to the plaintiff’s CTS, nothing in the record suggested a need for a
limitation solely to frequent handling, with no limitations in fingering or feeling, for example.
The plaintiff has the better argument.
In Lisa Staples, this court rejected the commissioner’s argument that an ALJ had assessed
limitations more favorable than the remaining evidence would support, rendering the ALJ’s error
in construing raw medical evidence harmless, when the ALJ explained that she had given agency
nonexamining consultants’ opinions little weight because evidence unseen by them demonstrated
that the plaintiff had moderate mental limitations. See Lisa Staples, 2017 WL 1011426, at *5. The
court reasoned that this was “effectively a concession that [the consultants’] opinions could not
stand as substantial evidence of [the claimant’s] mental RFC.” Id. (citations omitted). “Thus,

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instead of assessing a mental RFC that gave the plaintiff ‘the benefit of the doubt’ or otherwise
was more favorable than the remaining evidence would support, the [ALJ] . . . assessed an RFC
unsupported by substantial evidence.” Id. (citation omitted).
The same is true here. While, in this case, the ALJ faulted the agency nonexamining
consultants’ failure to assess manipulative limitations to account for the plaintiff’s CTS on the
basis of her review of the same record evidence available to at least one of those consultants, Dr.
Trumbull, she effectively found, like the ALJ in Lisa Staples, that the consultants’ opinions on that
point could not stand as substantial evidence. Thus, as in Lisa Staples, the ALJ herself judged the
relevant portion of the consultants’ opinions a nullity, as a result of which her assessment was not
more favorable to the plaintiff than the record would otherwise support.
Indeed, in Norman T., citing Lisa Staples, this court rejected the commissioner’s argument
that an ALJ had assessed mental restrictions more favorable to the claimant than the record would
otherwise support when the ALJ had deemed agency nonexamining consultants’ opinions
insufficiently restrictive, rather than undermined by later-submitted evidence as in Lisa Staples.
See Norman T., 2018 WL 3105778, at *6 (“While the ALJ’s RFC finding regarding the
[claimant]’s off-task limitations is indeed more favorable than those of the agency nonexamining
consultants . . ., the ALJ rejected their conclusions regarding the impact of the [claimant]’s
cognitive limitations.”).
Similarly, in Geoffrion v. Berryhill, No. 2:16-cv-00596-JAW, 2017 WL 5665556 (D. Me.
Nov. 26, 2017) (rec. dec., aff’d Dec. 18, 2017), an ALJ rejected agency nonexamining consultants’
less restrictive opinions pertaining to the claimant’s mental impairments as of a remote date last
insured not because evidence was unseen by them but, rather, because the ALJ chose to
“incorporate[] limitations supported by objective treatment records from the remote period at

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issue.” Geoffrion, 2017 WL 5665556, at *4 (citation and internal quotation marks omitted). Citing
Lisa Staples, this court concluded that, “in so doing, the ALJ in effect conceded that [those]
opinions could not stand as substantial evidence of the [claimant]’s mental RFC” and, therefore,
rather than assessing a mental RFC “more favorable than the remaining evidence would support,
. . . assessed an RFC unsupported by substantial evidence.” Id. (citations and internal quotation
marks omitted).
The same is true in this case.
In arguing that the result should be otherwise, the commissioner relies on caselaw that
predates Lisa Staples and is distinguishable.
Davis is distinguishable in that, there, the ALJ expressly stated that he had given the
claimant the benefit of the doubt in assessing physical limitations although no medical practitioner
of record had expressed an opinion regarding her physical functional capacity. See Davis, 2015
WL 3937423, at *4. In this case, by contrast, the ALJ deemed the opinions of Drs. Hayes and
Trumbull unpersuasive and inconsistent with the record evidence insofar as they omitted to assess
any manipulative limitations. See Record at 25.
Bowden is distinguishable in that, there, the ALJ relied on the claimant’s own statements.
See Bowden, 2014 WL 1664961, at *4 (agreeing with the commissioner that “what medical
evidence of COPD there is in the record demonstrates that it was minimal, so that the [ALJ] could
rely on the [claimant]’s own testimony about the limitations imposed by that impairment”)
(citations omitted). In this case, by contrast, as the commissioner concedes, the ALJ erred in
construing raw medical evidence to devise the manipulative limitation at issue. See Opposition at
15.

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Gonsalves is distinguishable in that, there, inasmuch as appears, the ALJ did not expressly
disclaim reliance on any less restrictive opinion in assessing greater limitations. See Gonsalves,
2010 WL 1935753, at *6. In those circumstances, the court held that, while it was “true that the
[ALJ]’s opinion does not provide any analysis of medical evidence to support a limitation to light
work prior to March 30, 2006, . . . that error can only be read, given the state of the record, to be
favorable to the [claimant], assigning him a more restricted residual physical capacity than, as the
[claimant] himself points out, is justified by the medical evidence.” Id. at *6. In this case, by
contrast, the ALJ pointedly deemed the Hayes and Trumbull opinions unpersuasive and
inconsistent with the underlying medical record to the extent that they omitted to assess any
manipulative limitation stemming from the plaintiff’s CTS. See Record at 25.
Becky K. G., the final case cited by the commissioner in opposition to remand, see
Opposition at 15, also is distinguishable. In Becky K. G., this court concluded that agreeing with
the claimant would require the court itself to engage in interpreting raw medical data because the
claimant had cited “throughout her brief . . . to medical evidence that she contend[ed] support[ed]
an earlier finding of disability.” Becky K. G., 2020 WL 7418974 at *6. In this case, by contrast,
the plaintiff argues that remand is required because the ALJ herself expressly disclaimed any
reliance on the Trumbull and Hayes opinions, as a result of which her RFC finding was not more
favorable to the plaintiff than the record evidence would otherwise support. No interpretation of
raw medical data by the court is required.
Because the ALJ concededly erred in impermissibly construing raw medical evidence to
arrive at a component of the plaintiff’s RFC, and, contrary to the commissioner’s argument, her
error is not rendered harmless on the basis that her finding was more favorable to the plaintiff than
the record would otherwise support, remand is required.

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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,
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 5th day of September, 2021.

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

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