JOHN H. RICH, III, Magistrate Judge.
This 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 the ALJ erred in two respects in determining his mental residual functional capacity ("RFC"): in assessing a limitation flowing from his cognitive disorder that is unsupported by any record evidence and in failing to assess any limitation in his ability to work with coworkers and supervisors. See Statement of Specific Errors ("Statement of Errors") (ECF No. 13) at 1-14. He argues that these errors undermined the ALJ's reliance on the testimony of a vocational expert predicated on the faulty mental RFC determination. See id. at 14. I agree that the ALJ erred in assessing the functional effects of the plaintiff's cognitive disorder and that this error warrants remand. Accordingly, I 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 argument that the ALJ's omission of a limitation in working with coworkers and supervisors separately warrants remand.
Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 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 had the severe impairments of degenerative disc disease of the lumbar spine, affective disorder, anxiety disorder, attention-deficit disorder, and cognitive disorder status post remote traumatic brain injury, Finding 2, Record at 19; that he had the RFC to perform sedentary work as defined in CFR § 416.967(a) except that he could lift, carry, push, and pull up to 10 pounds occasionally, sit for six hours in an eight-hour workday, stand and walk for two hours in an eight-hour workday, and stand and walk for intervals of no more than 15 minutes, would need to stand or walk for five minutes, remaining on task, after 30 minutes of sitting, could never climb ladders, ropes, or scaffolds, could occasionally climb ramps or stairs, could occasionally crouch, crawl, kneel, and stoop, could never balance on uneven surfaces, needed to avoid exposure to extreme cold, vibration, moving mechanical parts, and unprotected heights, could frequently reach and handle with the right (dominant) upper extremity, was limited to simple work in a nonproduction-paced work setting (no assembly-line type work), could not work with the public as part of his job duties, was limited to simple decision making and no more than occasional changes in a routine work setting, and would be off-task for 10 percent of the workday in addition to normal breaks, Finding 4, id. at 22; that, considering his age (45years old, defined as a younger individual, on his amended alleged disability onset date, December 3, 2013), 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 he could perform, Findings 6-9, id. at 29; and that he, therefore, had not been disabled from December 3, 2013, through the date of the decision, June 1, 2016, Finding 10, id. at 30-31. 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. § 416.1481; Dupuis v. Sec'y of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).
The standard of review of the commissioner's decision is whether the determination made is supported by substantial evidence. 42 U.S.C. § 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 his past relevant work. 20 C.F.R. § 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. § 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. § 416.920(f); Social Security Ruling 82-62 ("SSR 82-62"), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.
As the ALJ noted, the plaintiff filed the instant application for SSI benefits shortly after the Appeals Council denied his request for review of a prior unfavorable ALJ decision issued on July 27, 2012. See Record at 25. In the 2012 decision, a different ALJ had found that the plaintiff had the severe impairments of lumbar degenerative disc disease and depression and that he was limited, in relevant part, to work involving simple, routine, repetitive tasks. See Findings 3, 5, id. at 81-82.
The ALJ stated, "Considering the passage of over a year between the issuance of this decision and the application for disability currently under review, I afford [the 2012 decision] limited weight." Id. at 25. He explained:
Id.
Indeed, following the issuance of the 2012 decision, the plaintiff underwent a neuropsychological evaluation by Christine R. Deering, Ph.D., on March 28, 2013, see id. at 328-35, and, in connection with the instant application, a psychological evaluation by agency examining consultant A.J. Butler, Ed.D., on April 16, 2014, see id. at 369-74. With the benefit of review of both of those reports, two agency nonexamining consultants, Peter G. Allen, Ph.D., and Brian Stahl, Ph.D, formulated opinions concerning the nature and impact of the plaintiff's mental impairments. See id. at 105-13, 124-31.
The plaintiff's primary care physician, Charles T. McHugh, M.D., referred him to Dr. Deering "for a comprehensive neuropsychological evaluation to assess the current level of his cognitive and neurobehavioral functioning secondary to declining short-term memory, problems with vision, personality changes, and distractibility exacerbated over the past 6-8 months." Id. at 328; Statement of Errors at 9. Dr. Deering noted that the plaintiff's history included "severe head trauma with loss of consciousness secondary to a motorcycle accident at age 18 which required a 3 month hospitalization." Record at 328. She concluded that he had a cognitive disorder not otherwise specified, an attention-deficit hyperactivity disorder, and a mood disorder not otherwise specified. See id. at 334.
Dr. Deering noted that "[t]here was evidence of mild degrees of distractibility/inattention and impulsivity/restlessness despite the quiet testing environment" and that:
Id.
In a section of her report titled "Treatment Recommendations," Dr. Deering stated, "As [the plaintiff] evidences significant neuropsychological deficits in the areas of attention/concentration, executive functions, memory functions (as well as significant mood dysregulation with depression) he is not deemed capable of participating in gainful employment either presently or in the next 12 months." Id. at 335.
On examination of the plaintiff on April 16, 2014, Dr. Butler noted "observable attention and concentration difficulties which likely impact negatively upon his short-term memory functioning." Id. at 373. She added: "His short-term verbal memory functioning is estimated as being within the Extremely Low to Borderline range." Id. She diagnosed the plaintiff with a mood disorder not otherwise specified, a cognitive disorder not otherwise specified following a traumatic brain injury at the age of 18, and generalized anxiety disorder, indicating, in relevant part, that he was "likely to have significant problems sustaining prolonged task focus." Id.
With the benefit of review of the Deering and Butler reports, Dr. Allen concluded on May 2, 2014, that the plaintiff's cognitive disorder was nonsevere, see id. at 107-08, and that, although he had variable concentration, he was "able to manage routine tasks for [a] normal workday/week, within his physical limits[,]" id. at 112. On reconsideration on September 12, 2014, Dr. Stahl found the plaintiff's cognitive disorder severe. See id. at 131. However, he deemed him "able to understand and remember simple instructions and tasks" and "able to work in 2 hour blocks performing simple tasks over the course of a normal workday/workweek." Id. at 130.
The ALJ stated, in relevant part:
Id. at 27 (citation omitted). As the plaintiff notes, see Statement of Errors at 6-7, the records of "subsequent medical visits" to which the ALJ referred are the notes of Andrea Palencar, M.D., who treated him in early 2015 for back and knee pain, see Record at 27, 405-08, 410-14. In records of February 4, 2015, and April 15, 2015, visits, Dr. Palencar noted under the heading "Psych": "alert and cooperative; normal mood and affect; normal attention span and concentration." Id. at 407, 413.
The ALJ afforded little weight to Dr. Deering's opinion that the plaintiff's cognitive difficulties would prevent him from working, noting that the issue is one reserved to the commissioner. See id. at 28. However, he stated that "the findings in Dr. Deering's report, which are consistent with the medical records as a whole and the [plaintiff]'s subjective complaints, are also consistent with the above-outlined [RFC], which . . . does not preclude the performance of all gainful employment." Id.
The ALJ summarized Dr. Butler's findings as follows:
Id.
The ALJ stated that he gave the Butler opinion "some weight[,]" explaining:
Id.
The ALJ gave "some weight" to the Allen and Stahl opinions but concluded that, insofar as they pertained to the plaintiff's cognitive limitations, they were not sufficiently restrictive. See id. at 28-29. He deemed Dr. Allen's "characterization of the [plaintiff]'s cognitive disorder as non-severe . . . not supported given the findings of Dr. Butler's consultative examination finding." Id. at 28. He stated that "Dr. Stahl limited the [plaintiff] to working in two hour blocks, with no allowance for time off task or opportunity to refocus in addition to normal breaks, which is inconsistent with the medical evidence and therefore precludes [giving] greater weight [to his opinion]." Id. at 29.
As the plaintiff argues, and counsel for the commissioner conceded at oral argument, "[t]here is no evidence in the record to support the ALJ's determination that the plaintiff's cognitive disorder would be limited to being off task no more than 10% of the workday in addition to normal breaks." Statement of Errors at 5. No such finding is contained in, or can reasonably be inferred from, either the Deering or Butler report. See Record at 328-35, 369-74. To the contrary, Dr. Deering deemed the plaintiff incapable of working. See id. at 335.
Nor do the Allen and Stahl opinions support such a finding. Indeed, the ALJ expressly discounted the weight afforded to those opinions because Dr. Allen deemed the plaintiff's cognitive disorder nonsevere and Dr. Stahl failed to account for time off-task in periods other than normal breaks. See id. at 28-29.
An ALJ may not determine a claimant's RFC based on his or her lay interpretation of the raw medical evidence unless a common-sense judgment about functional capacity can be made. See, e.g., Eshelman v. Astrue, No. 06-107-B-W, 2007 WL 2021909, at *3 (D. Me. July 11, 2007) (rec. dec., aff'd July 31, 2007) ("While the First Circuit does permit an [ALJ] to pick and choose among physicians' findings and opinions, it does not permit the crafting of an RFC based on raw medical evidence of record unless common-sense judgments about functional capacity can be made.") (citations, internal quotation marks, and footnote omitted).
In her brief, and through counsel at oral argument, the commissioner contends that the ALJ made just such a common-sense judgment based on a careful assessment of the totality of the record evidence. See Defendant's Opposition to Plaintiff's Statement of Errors ("Opposition") (ECF No. 15) at [2]-[5]. She argues that the off-task limitation was supported by Dr. Palencar's notation on two occasions that the plaintiff had a normal attention span and concentration and by evidence that, although the plaintiff was sometimes forgetful, any impact on his activities of daily living, such as cooking, shopping, driving, and attending to his personal grooming, was minimal. See id. at [3]-[4].
Yet, the ALJ did not explain, nor is it otherwise apparent, how he concluded that the plaintiff would be off-task 10 percent of the time versus 15 percent, or some other number. See Record at 21-29. Dr. Palencar's observations do not support such a limitation: contrary to the findings of Drs. Deering and Butler, and of the ALJ himself, she noted no cognitive limitations. Nor could the ALJ make a common-sense judgment that the plaintiff would be off-task 10 percent of the time versus 15 percent based on the plaintiff's ability to perform certain activities of daily living. As the plaintiff argues, see Statement of Errors at 11-12, this case is analogous to Bernier v. Colvin, No. 1:14-cv-29-JHR, 2015 WL 46062 (D. Me. Jan. 2, 2015), in which this court held that an ALJ had "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[,]" Bernier, 2015 WL 46062, at *4 (footnote omitted).
The ALJ, hence, erred in assessing a mental limitation unsupported by any evidence of record.
The commissioner argues in the alternative that any error is harmless, the plaintiff having failed to point to evidence that he would have been off-task more than 10 percent of the time. See Opposition at [7]-[8]. However, as the plaintiff observes, see Statement of Errors at 10, the ALJ's colloquy with the vocational expert present at his hearing makes clear that accurate assessment of the percentage by which the plaintiff was off-task — specifically, whether he was off-task more than 10 percent of the time — was material to whether he was disabled:
Record at 66-67.
Because the ALJ relied on vocational expert testimony concerning a percentage of time during which the plaintiff would be off-task time that is unsupported by substantial evidence, his reliance on the vocational expert's testimony to carry the commissioner's burden at Step 5 was misplaced. 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).
Nor is this case where the ALJ's error is harmless because "the ALJ's finding is more favorable to the [claimant] than the evidence of record would otherwise support — typically, evidence in the form of agency nonexamining consultants' opinions." Vallier v. Berryhill, No. 1:17-cv-00064-DBH, 2017 WL 5665539, at *4 (D. Me. Nov. 26, 2017) (rec. dec., aff'd Dec. 12, 2017). While the ALJ's RFC finding regarding the plaintiff's off-task limitations is indeed more favorable than those of the agency nonexamining consultants in this case, Drs. Allen and Stahl, the ALJ rejected their conclusions regarding the impact of the plaintiff's cognitive limitations. See Record at 28-29.
In the so-called "Lisa Staples" case, Staples v. Berryhill, No. 1:16-cv-00091-GZS, 2017 WL 1011426 (D. Me. Mar. 15, 2017) (rec. dec., aff'd Mar. 30, 2017), this court rejected the commissioner's argument that the existence in the record of less claimant-friendly RFC opinions by agency nonexamining consultants rendered an ALJ's RFC error harmless, observing that the ALJ had rejected those opinions on the basis that later-submitted evidence demonstrated that the claimant had greater mental limitations than those the consultants had assessed. Lisa Staples, 2017 WL 1011426, at *5. The court noted that "[t]his was . . . effectively a concession that the [agency nonexamining consultants'] opinions could not stand as substantial evidence of [the claimant's] mental RFC." Id. (citations omitted). "Thus, instead of assessing a mental RFC that gave the [claimant] `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. Because the ALJ erred in assessing an off-task limitation unsupported by any evidence of record, and that error undermined his finding at Step 5 that the plaintiff was capable of performing work existing in significant numbers in the national economy, remand is warranted.
For the foregoing reasons, I recommend that the commissioner's decision be
