Opinion

FRANK v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Court
District Court, D. Maine
Filed
Nov 22, 2022
Cited by
0 cases
Authority
More cited than 23.3%

ALJ is not “precluded from rendering common-sense judgments about functional capacity based on medical findings, so long as [the ALJ] does not overstep the bounds of a lay person’s competence and render a medical judgment.”

How later courts described this case

  • ALJ is not “precluded from rendering common-sense judgments about functional capacity based on medical findings, so long as [the ALJ] does not overstep the bounds of a lay person’s competence and render a medical judgment.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

NICOLE F., )

)

Plaintiff )

)

v. ) 1:22-cv-00005-JAW

)

KILOLO KIJAKAZI, Acting Commissioner )

of Social Security, )

)

Defendant )

REPORT AND RECOMMENDED DECISION

On Plaintiff’s application for disability insurance benefits under Title II and

supplemental security income benefits under Title XVI of the Social Security Act,

Defendant, the Social Security Administration Commissioner, found that Plaintiff has

severe impairments but retains the functional capacity to perform substantial gainful

activity. Defendant, therefore, denied Plaintiff’s request for disability benefits. Plaintiff

filed this action to obtain judicial review of Defendant’s final administrative decision

pursuant to 42 U.S.C. § 405(g).

Following a review of the record, and after consideration of the parties’ arguments,

I recommend the Court vacate the administrative decision and remand the matter for further

proceedings.

THE ADMINISTRATIVE FINDINGS

The Commissioner’s final decision is the February 25, 2021, decision of the

Administrative Law Judge. (ALJ Decision, ECF No. 11-2).1 The ALJ’s decision tracks

the familiar five-step sequential evaluation process for analyzing social security disability

claims, 20 C.F.R. §§ 404.1520, 416.920.

The ALJ found that Plaintiff has severe, but non-listing-level impairments

consisting of fibromyalgia, degenerative joint disease in the right shoulder, left ankle

arthritis, cyclothymia, adjustment disorder with mixed anxiety and depressed mood, and

dysthymic disorder. (R. 21.) The ALJ further found that Plaintiff has the residual

functional capacity (RFC) to perform a full range of work at the light exertional level,

except she should avoid left foot controls, but she is permitted to drive, and avoid hazards

such as heights, vibration, and dangerous machinery; she is limited to occasional bending,

balancing, twisting and squatting, kneeling and crawling, overhead reaching with her right

arm, and climbing, but no climbing ladders, ropes or scaffolds; she is capable of performing

simple, routine, repetitious work that does not require teamwork or working closely with

the public, and is limited to occasional interaction with coworkers, supervisors, and the

public. (R. 24-25.)

Based on the RFC finding, Plaintiff’s age, education and work experience, and the

testimony of a vocational expert, the ALJ concluded that Plaintiff can perform substantial

gainful activity existing in the national economy, including the representative occupations

of price marker, collator operator, and mail sorter. (R. 31-32.) The ALJ determined,

therefore, that Plaintiff was not disabled.

1 Because the Appeals Council found no reason to review that decision (R. 1), Defendant’s final decision

is the ALJ’s decision.

STANDARD OF REVIEW

A court must affirm the administrative decision provided the decision is based on

the correct legal standards and is supported by substantial evidence, even if the record

contains evidence capable of supporting an alternative outcome. Manso-Pizarro v. Sec’y

of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per curiam); Rodriguez Pagan v. Sec’y of HHS,

819 F.2d 1, 3 (1st Cir. 1987). Substantial evidence is evidence that a reasonable mind

might accept as adequate to support a finding. Richardson v. Perales, 402 U.S. 389, 401

(1971); Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st Cir. 1981). “The ALJ’s findings

of fact are conclusive when supported by substantial evidence, but they are not conclusive

when derived by ignoring evidence, misapplying the law, or judging matters entrusted to

experts.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).

DISCUSSION

The ALJ determined Plaintiff’s severe impairments included cyclothymia,

adjustment disorder with mixed anxiety and depressed mood, and dysthymic disorder.

Plaintiff alleges in part that the ALJ erred in his assessment of Plaintiff’s mental RFC. To

assess a claimant’s RFC, an “ALJ must measure the claimant’s capabilities, and ‘to make

that measurement, an expert’s RFC evaluation is ordinarily essential unless the extent of

functional loss, and its effect on job performance, would be apparent even to a lay person.’”

Manso-Pizzaro, 76 F.3d at 17 (quoting Santiago v. Sec’y of Health & Human Servs., 944

F.2d 1, 7 (1st Cir. 1991)); see also Gordils v. Sec’y of Health & Human Servs., 921 F.2d

327, 329 (1st Cir. 1990) (ALJ is not “precluded from rendering common-sense judgments

about functional capacity based on medical findings, so long as [the ALJ] does not overstep

the bounds of a lay person’s competence and render a medical judgment.”).

In assessing Plaintiff’s mental RFC, the ALJ wrote:

Although the claimant alleges disabling mental health issues, the record

shows minimal evidence of significant cognitive decline and ongoing mental

health issues. The claimant has only required weekly therapy, which she

does not attend consistently. She has not had any exacerbations of mental

health issues that required Emergency Department presentations, Intensive

Outpatient Program (IOP) or Partial Hospitalization Programs (PHP). There

is documentation of anxious and irritable mood and blunted affect ….

However, the claimant has been treated with psychotropic medication. The

undersigned has accounted for the claimant’s mental health impairments and

finds the claimant capable of performing simple routine repetitious work that

does not require teamwork [or] working closely with the public. She is also

limited to occasional interaction [with] coworkers, supervisors, and the

public.

(R. 28.) The ALJ also noted that Plaintiff’s regular activities suggest “greater ability to

interact with the others and sustain attention for simple routine work.” 2 (Id.)

The ALJ evidently did not rely on any expert testimony or evidence to support his

mental RFC determination. He found the opinions of two of Plaintiff’s providers, Carol

Browning, M.D., and Samantha Gilligan, N.P., to be minimally persuasive. (R. 29.) Dr.

Browning opined that pain is likely a trigger for Plaintiff’s psychiatric symptoms, and that

Plaintiff was markedly impaired in her ability to work at an appropriate and consistent

pace, timely complete tasks, ignore or avoid distractions, respond appropriately to

demands, adapt to changes, manage her mental health symptoms, and maintain work

appropriate behavior, and markedly impaired in her ability to sustain regular attendance

2 Plaintiff reports that she independently manages her daily activities, which include self-care, grocery

shopping, driving, reading and coloring, using the internet and social media, spending time with her

boyfriend, and attending her children’s sporting events prior to the pandemic. (R. 50-53, 56-57.) She also

ran a childcare business from her home in 2018, caring for children aged one to ten years old. (R. 44.)

and sustain a full workday. (R. 1147, 1148.) The ALJ described Dr. Browning’s opinion

as relying on Plaintiff’s subjective reports, failing to provide explanations or reference

objective findings to support her opinion, and focusing largely on Plaintiff’s physical issues

though Dr. Browning treated Plaintiff’s cyclothymia. (Id.) The ALJ discounted NP

Gilligan’s opinion regarding Plaintiff’s psychological limitations due to emotional or

physical stress, because NP Gilligan did not treat Plaintiff for psychological issues, and did

not reference any treatment notes or evidence to support her opinions. (R. 29, referencing

R. 1153.)3

The state agency psychological consultants at the initial and reconsideration levels,

Thomas Knox, Ph.D., and Mary Burkhart, Ph.D., both opined that Plaintiff had no severe

mental impairments and therefore did not complete an RFC. (R. 76-77, 84-85, 91-92, 99-

100.) As reflected by the ALJ’s finding that Plaintiff had severe mental impairments, the

ALJ did not rely on the consultants’ opinions. To the contrary, the ALJ found their

opinions “minimally persuasive,” noting that they did not have the benefit of hearing the

vocational expert’s testimony or the opportunity to review subsequent records showing that

Plaintiff sought treatment for mental health issues. (R. 28-29.) The findings of Drs. Knox

and Burkhart cannot reasonably constitute substantial evidence for the ALJ’s RFC

assessment, because “as a practical matter,” the ALJ could not “have given any weight to

3 The ALJ also found unpersuasive the opinion letter of Plaintiff’s therapist, Marjorie Walsh, L.C.S.W. (R.

29.) Ms. Walsh diagnosed Plaintiff with persistent depressive disorder. (R. 1154.) Ms. Walsh stated that

Plaintiff had “many” cancellations of her therapy appointments due to her medical issues and other

problems, and noted that Plaintiff “seems to have problems with consistency and reliability. (Id.) The ALJ

stated that Ms. Walsh’s letter does not provide Plaintiff’s mental health limitations, but refers to Plaintiff’s

physical impairments. (R, 29.) The ALJ also found that Ms. Walsh’s statements were not opinions as

defined under 20 C.F.R. §404.1527(d).

the opinions” of the psychological consultants, “neither of whom had occasion to assess

[Plaintiff’s] mental RFC.” Staples v. Berryhill, No. 1:16-cv-00091-GZS, 2017 WL

1011426, at *4 (D. Me. Mar. 15, 2017) (aff’d, Mar. 30, 2017); see also Laura S. v. Soc.

Sec. Admin. Comm’r, 2:18-cv-00375-JDL, 2019 WL 4046541, at *5 (D. Me. Aug. 27,

2019).

In his assessment of Plaintiff’s mental RFC, therefore, the ALJ did not rely on a

medical expert. The limitations resulting from cyclothymia, adjustment disorder with

mixed anxiety and depressed mood, and dysthymic disorder cannot reasonably be

considered a commonsense judgment “apparent to a layperson.” Manso-Pizzaro, 76 F.3d

at 17. Accordingly, the ALJ’s RFC assessment is not supported by substantial evidence

on the record.4

CONCLUSION

Based on the foregoing analysis, I recommend the Court vacate the administrative

decision and remand the matter for further proceedings.

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 of being served with a copy thereof. A responsive memorandum

shall be filed within fourteen (14) days after the filing of the objection.

4 Plaintiff asserts several errors in the ALJ’s decision, including a challenge to the ALJ’s RFC assessment.

Because I find the ALJ’s RFC assessment is not supported by substantial evidence, I do not address

Plaintiff’s other arguments.

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.

/s/ John C. Nivison

U.S. Magistrate Judge

Dated this 22nd day of November, 2022.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.