VIOLETTE v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

JAMIE A. V., )

)

Plaintiff )

)

v. ) No. 1:19-cv-00386-JDL

)

ANDREW M. SAUL, )

Commissioner of Social Security,1 )

)

Defendant )

REPORT AND RECOMMENDED DECISION2

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 past relevant work as an automotive detailer and, in the alternative, other

work existing in significant numbers in the national economy. The plaintiff seeks remand on the

basis that the ALJ’s mental residual functional capacity (“RFC”) finding is unsupported by

substantial evidence because, despite purporting to give great weight to the opinions of two agency

nonexamining consultants, he deviated from their assessments, interpreting raw medical evidence

unseen by them. See Statement of Specific Errors (“Statement of Errors”) (ECF No. 14) at 1-16.

I agree and, accordingly, recommend that the court vacate the commissioner’s decision and remand

this case for further proceedings consistent herewith.

1 Pursuant to Federal Rule of Civil Procedure 25(d), Andrew M. Saul is substituted as the defendant in this matter.

2 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 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.

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

found, in relevant part, that the plaintiff met the insured status requirements of the Social Security

Act through September 30, 2015, Finding 1, Record at 15; that he had the severe impairments of

depression, anxiety, a personality disorder, borderline intellectual functioning, and a learning

disorder, Finding 3, id.; that he had the RFC to perform a full range of work at all exertional levels

but with the following nonexertional limitations: he was limited to simple, unskilled work in a

low-stress job, defined as one with only occasional decision-making and occasional changes in the

work setting, could not work in or among crowds, could not interact with the public as part of his

job duties, although this did not preclude contact in passing, could have occasional interaction with

coworkers, and could have only occasional supervision, Finding 5, id. at 18; that he was capable

of performing past relevant work as an automotive detailer, which did not require the performance

of work-related activities precluded by his RFC, Finding 6, id. at 24; and, in the alternative,

considering his age (41 years old, defined as a younger individual, on his amended alleged

disability onset date, September 1, 2015), education (limited and able to communicate in English),

work experience (transferability of skills immaterial), and RFC, there were jobs existing in

significant numbers in the national economy that he could perform, id. at 24-25; and that he,

therefore, had not been disabled from December 25, 2014, through the date of the decision,

February 27, 2019, Finding 7, id. at 25-26.3 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. Sec’y of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).

3 The ALJ presumably meant to reference September 1, 2015, the plaintiff’s amended alleged onset date of disability,

rather than December 25, 2014, his original alleged onset date of disability. See Record at 13. However, nothing

turns on the discrepancy.

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 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); 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), 416.920(f); Social Security Ruling 82-62 (“SSR 82-62”), reprinted in West’s

Social Security Reporting Service Rulings 1975-1982, at 813.

In the alternative, 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. §§ 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).

I. Discussion

In crafting the plaintiff’s mental RFC, the ALJ stated that he gave “great weight” to the

opinions of agency nonexamining consultants Brian Stahl, Ph.D., (dated April 20, 2017) and David

R. Houston, Ph.D., (dated December 26, 2017), but only “limited weight” to (i) an April 2017

opinion of agency examining consultant James Werrbach, Ph.D., (ii) an opinion of Anthony

Podraza, M.S., Ph.D., A.B.P.P., contained in Dr. Podraza’s February 2019 report of his

neurocognitive examination, that the plaintiff was “not a suitable candidate for competitive

employment at this time[,]” and (iii) June 2018 and January 2019 narrative letters submitted by

treating source Rebecca Crooker, L.C.P.C. Record at 22-23; see also id. at 110-12, 126-28, 934-

37, 1230, 1946, 1967-73.

Drs. Stahl and Houston both concluded that the plaintiff had severe mental impairments of

anxiety and depression. See id. at 109, 124. As the ALJ noted, both also found that he “retain[ed]

the ability to understand and remember simple instructions and tasks, but could not handle complex

information;” was “able to work in two-hour blocks of time performing simple tasks over the

course of a normal workday and workweek;” was “not able to work with the public” but could

“work with co-workers and supervisors;” and could “adapt to simple changes.” Id. at 22 (citations

omitted); see also id. at 110-12, 126-28. The ALJ explained that he gave the opinions great weight

because, although Drs. Stahl and Houston had not treated or examined the plaintiff, they were

agency physicians familiar with the disability program and had “reviewed a large portion of the

evidence of record in rendering their opinions and supported their findings with citations to the

record.” Id. at 22. He added:

I do acknowledge that substantial additional evidence has been submitted since

their evaluations, which is exhibited from 12F to 27F. These new records do

contain a narrative letter from a treating source and a neuropsychological

evaluation, both of which support disability, as detailed below. However, this new

evidence supporting disability is inconsistent with the record as a whole, which

documents that the [plaintiff] is able to live independently and manage a wide range

of daily tasks despite his alleged impairments. Furthermore, this new evidence

shows consistently mild to moderate deficits on objective examination, as detailed

above, and thus fail[s] to support a substantial erosion in functioning. Thus, while

I fully considered this substantial new evidence, I nonetheless find the restrictions

cited by Drs. Stahl and Houston most supported by the record as a whole.

Id.

The ALJ described his RFC determination as “supported by the record, when considered

as a whole, and especially in light of the inconsistencies between the [plaintiff]’s subjective

allegations and his objective presentation in the course of treatment.” Id. at 24. However, he did

not acknowledge that his findings of the plaintiff’s severe impairments and his RFC determination

deviated from those of Drs. Stahl and Houston.

Whereas Drs. Stahl and Houston found severe impairments of anxiety and depression, the

ALJ found additional severe impairments of a personality disorder, borderline intellectual

functioning, and a learning disorder. While, at the outset of his RFC discussion, the ALJ noted

that the plaintiff had “a history of a personality disorder, with borderline, dependent, melancholic,

and avoidant traits[,]” “a longitudinal history of learning deficits that date back to school, with a

full-scale I.Q. of 77, in the borderline range[,]” and had “also been diagnosed with a learning

disorder, with noted difficulties in reading comprehension, arithmetic, and spelling[,]”

propositions for which he cited Exhibit 27, containing the Podraza evaluation, id. at 20, 1967-73,

he did not explain how, if at all, he took those additional severe impairments into account in

crafting his RFC, see id. at 20-24.

Further, whereas Drs. Stahl and Houston deemed the plaintiff able to “understand and

remember simple instructions and tasks[,]” “work in 2 hour blocks performing simple tasks over

the course of a normal workday/workweek[,]” work with co-workers and supervisors but not the

public, and adapt to simple or routine changes, id. at 110-12, 126-28, the ALJ found that he also

required a limitation to low-stress work, defined as entailing only occasional decision-making and

occasional changes in the work setting, could not work in or among crowds, or interact with the

public as part of his job duties, but was not precluded from contact with the public “in passing[,]”

could have “occasional interaction with co-workers[,]” and could have “only occasional

supervision[,]” Finding 5, id. at 18.

Plainly, as the plaintiff’s counsel observed at oral argument, while the ALJ discounted Dr.

Podraza’s opinion that the plaintiff was disabled, he expressly adopted three significant diagnoses

made by Dr. Podraza and analyzed the substantive significance of the Podraza evaluation; for

example, deeming a limitation to simple, unskilled work consistent with the diagnoses of

borderline intellectual functioning and a learning disorder. See id. at 20-21. He did so without the

benefit of interpretation by a mental health expert of results on objective testing by Dr. Podraza,

which included “poor performance or deficit on most measures of reasoning, verbal and

visuospatial memory, language function, and attention/concentration[,] . . . suggestive of diffuse

cerebral dysfunction.” Id. at 1971.

As the plaintiff’s counsel contended at oral argument, this case is materially

indistinguishable from Lacey A. L. v. Saul, No. 1:19-cv-00126-GZS, 2020 WL 748645 (D. Me.

Feb. 14, 2020) (rec. dec., aff’d Mar. 3, 2020), in which this court deemed reversal and remand

warranted on the basis that the ALJ’s mental RFC determination was unsupported by substantial

evidence. In Lacey A. L., as here:

1. The ALJ purported to give great weight to the opinion of an agency nonexamining

consultant, in that case also Dr. Stahl, who had not had the benefit of review of later-submitted

evidence that included the reports of an independent medical examiner, Craig W. Curtis, M.D.,

and an independent psychiatric examiner, Jeffrey S. Barkin, M.D., in a separate workers’

compensation case. See Lacey A. L., 2020 WL 748645, at *2.

2. The ALJ rejected all other relevant expert opinions of record, including those of

Drs. Curtis and Barkin bearing on the plaintiff’s employability, but found severe impairments of

post-traumatic stress disorder, bipolar II disorder, and borderline personality disorder, all of which

had been diagnosed by Dr. Curtis and/or Dr. Barkin, in addition to anxiety, one of the only two

severe impairments (anxiety and depression) identified by Dr. Stahl. See id. at *2-4.4

3. The ALJ also deviated in some respects from the only expert RFC assessment of

record that he adopted, that of Dr. Stahl, assessing limitations both more restrictive (a ban against

tandem or team-oriented work) and less restrictive (an ability to have brief and incidental contact

with the general public) than found by Dr. Stahl. See id. at *4. In turn, those findings “were

neither supported by expert opinion nor a matter of common-sense judgment.” Id. (citations and

internal quotation marks omitted).

4. While the ALJ “explained his derivation of the [claimant]’s mental RFC, his

explanation underscore[d] the pitfalls of interpreting raw medical evidence.” Id. at *5 (citation

omitted). He noted that he had taken into account evidence unseen by Dr. Stahl “bearing on the

chronicity” of the claimant’s mental impairment but “did not explain how he took that chronicity

into account in determining her mental RFC.” Id. (citation and internal quotation marks omitted).

He also failed to explain “how, if at all, he took into account any limitations stemming from the

mental health impairments he found severe based on evidence unseen by Dr. Stahl.” Id. Finally,

his “reliance on largely normal mental status examinations and activities of daily living did not fill

the gap.” Id. (citation and internal quotation marks omitted).

In this case, as well, the ALJ relied in part on mental status examinations and activities of

daily living, and they do not fill the gap. First, as the plaintiff’s counsel asserted at oral argument,

4 The commissioner observes that “‘a diagnosis . . ., standing alone, does not establish the severity of the disease nor

the limitations that result for a particular individual.’” Defendant’s Opposition to Plaintiff’s Statement of Errors

(“Opposition”) (ECF No. 18) at 7-8 (quoting Dowell v. Colvin, No. 2:13-cv-246-JDL, 2014 WL 3784237, at *3 (D.

Me. July 31, 2014)). That is true, insofar as it goes. However, in this case, the ALJ adopted three new severe mental

impairments without explaining whether he found any resulting limitations and, if so, how he accounted for them.

the ALJ’s reliance on largely normal mental status examinations recorded during non-mental

health visits is problematic. See Record at 20 (deeming “the [plaintiff]’s presentation in the regular

course of primary care treatment records . . . grossly incongruous with his presentation in mental

health treatment[,]” during which “he presents reporting far more symptoms”), 21 (concluding

that, “[w]hile this objective clinical presentation throughout the period under review occasionally

shows some deficits, it generally fails to support a finding of total disability or any limitations

beyond those provided in the [RFC] above”). It is not a matter of common-sense judgment that

findings recorded during visits not focused on the plaintiff’s mental health undercut findings

recorded in mental-health-focused visits. Nor is it a common-sense judgment that, while the

longitudinal mental status examination evidence, which included records unseen by Drs. Stahl and

Houston that reflected a worsening, “show[ed] some deficits, it generally fail[ed] to support a

finding of total disability or any limitations beyond those provided in the [RFC] above.” Id. at

21.5

Second, as the plaintiff contends, see Statement of Errors at 12-13, the ALJ’s reliance on

his activities of daily living to support the assessed RFC is problematic. The ALJ concluded that,

“[w]hile the [plaintiff] clearly has some intellectual deficits, his present abilities and score in the

borderline intelligence range generally support an ability to perform simple, unskilled tasks[,]”

Record at 20,6 and that records documenting no issues visiting or relating to doctors, along with

the plaintiff’s testimony that he liked to visit antique shops and run errands with his father and was

5 As the ALJ acknowledged, see Record at 22, Exhibits 12F to 27F were unseen by either Dr. Stahl or Dr. Houston.

Yet, in addition to citing portions of the record available for their review, the ALJ cited portions of Exhibits 15F, 17F,

20F, 23F, and 27F for the proposition that the longitudinal evidence of the plaintiff’s objective clinical presentation

failed to support limitations beyond those set forth in the ALJ’s RFC determination. See id. at 21.

6 The ALJ cited the plaintiff’s abilities to read and understand a newspaper or letter, understand highway signs and

use a GPS, follow a recipe, read labels, tell time, use a phone book and household appliances, and use a computer,

including to play video games and maintain social relationships online. See Record at 20.

able to shop and visit neighbors, “fail to support [his] alleged degree of social limitations, with the

[RFC] above fully allowing for any social issues, particularly with the public[,]” id. at 21.

Yet, the ALJ identifies no expert evidence that a diagnosis of borderline intellectual

functioning supports an ability to perform simple, unskilled tasks, and the activities on which he

relies do not, standing alone, provide substantial evidence of the ability, on a sustained full-time

basis, to perform simple unskilled tasks or to engage in work with the stated social limitations,

including having contact with the public in passing, occasional interaction with coworkers, and

occasional supervision. See Finding 5, id. at 18; Coyne v. Berryhill, No. 2:16-cv-00536-GZS,

2017 WL 4364184, at *3 (D. Me. Oct. 1, 2017) (rec. dec., aff’d Oct. 19, 2017) (ALJ did not make

permissible common-sense judgment of claimant’s mental RFC when she relied heavily on

activities of daily living, including claimant’s completion of an online real-estate course and his

ability to read, exercise, walk, drive, go out unaccompanied, socialize with friends, and shop, “to

conclude that [he] had sufficient capacity to perform simple object-oriented work with limited

interactions with others on a sustained full-time basis”); Bernier v. Colvin, No. 1:14-cv-29-JHR,

2015 WL 46062, at *4 (D. Me. Jan. 2, 2015) (ALJ “overstepped the boundaries of his competence

as a layperson in delineating the [claimant’s] capabilities in the area of concentration, persistence,

and pace” when, “[e]ven granting that the [claimant’s] ability to read, watch television, learn

Japanese, and work on an electronics project suggest[ed] some capacity to concentrate and persist,

it d[id] not suggest, as a matter of commonsense judgment, that he retained the ability on a full-

time basis to handle routine tasks/semiskilled work, occasional decision-making, and occasional

workplace changes”) (footnote omitted).

At oral argument, counsel for the commissioner asserted that remand is unwarranted

because, (i) to the extent that the ALJ construed raw medical evidence, he made a permissible

common-sense judgment, (ii) in any event, he arrived at an RFC determination more favorable to

the plaintiff than the evidence would otherwise support, rendering any error harmless, and, (iii) in

any event, the plaintiff failed to meet his burden of showing that records unseen by Drs. Stahl and

Houston would have altered their opinions in a manner more favorable to him. See also Opposition

at 4; Gordils v. Sec’y of Health & Human Servs., 921 F.2d 327, 329 (1st Cir. 1990) (Although an

administrative law judge 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.”); Soto v. Colvin, No. 2:14-cv-28-JHR, 2015 WL 58401,

at *3 (D. Me. Jan. 5, 2015) (“a claimant may not obtain a remand on the basis of an RFC that is

more favorable than the evidence would otherwise support”); O’Bannon v. Colvin, Civil No. 1:13-

cv-207-DBH, 2014 WL 1767128, at *7 (D. Me. Apr. 29, 2014) (a claimant must show “what

specific evidence not seen by” agency nonexamining consultants “would necessarily have altered

their opinions in a manner favorable to [the claimant]”).

For the reasons discussed above, the ALJ’s RFC assessment was not the product of a

permissible common-sense judgment. Nor was his RFC determination more favorable to the

plaintiff than the evidence would otherwise support. At oral argument, counsel for the

commissioner argued that this was so because the ALJ’s RFC formulation is more restrictive in

certain respects than those of Drs. Stahl and Houston. Yet, the ALJ himself determined sub silentio

that the RFC assessments of Drs. Stahl and Houston were in some respects inadequately restrictive,

deviating from them on the basis of his lay interpretation of evidence unseen by them. His RFC

finding, hence, cannot fairly be described as more favorable than the evidence would otherwise

support. Finally, the plaintiff identified evidence that, in his view, called into question Drs. Stahl’s

and Houston’s conclusions, including the Podraza evaluation. See Statement of Errors at 7-16.

At bottom, the ALJ erred in construing evidence unseen by Drs. Stahl and Houston to craft

an RFC determination in circumstances in which he neither made a common-sense judgment nor

arrived at an RFC finding more favorable than the evidence would otherwise support. That, in

turn, undermined his reliance on the testimony of a vocational expert, at Step 4, that a person with

the stated RFC could perform the plaintiff’s past relevant work as an auto detailer and, at Step 5,

that a person with the stated RFC could perform work existing in significant numbers in the

national economy. See Record at 24-25; see also, 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

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

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 1st day of June, 2020.

/s/ John H. Rich III

John H. Rich III

United States Magistrate Judge