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.