JOHN H. RICH, III, Magistrate Judge.
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 work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that the ALJ erred in evaluating his fatigue associated with multiple sclerosis ("MS") and in failing to provide good reasons for discounting certain opinions of treating physician Sally Kirkpatrick, M.D. See Statement of Specific Errors ("Statement of Errors") (ECF No. 13) at 2-9. I agree that the ALJ failed to provide good reasons for discounting Dr. Kirkpatrick's opinion that the plaintiff required unscheduled work breaks as a result of his muscle weakness and chronic fatigue. On that basis, I 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, 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 December 31, 2018, Finding 1, Record at 22; that he had the severe impairment of MS, relapsing-remitting type, Finding 3, id.; that he had the residual functional capacity ("RFC") to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that he was limited to occasionally climbing stairs, ladders, ramps, ropes, and scaffolds, could occasionally balance, stoop, kneel, crouch, and crawl, could frequently reach in all directions, could not handle constantly, could not frequently finger objects smaller than a quarter, and had to avoid moderate exposure to high heat and vibratory tools, Finding 5, id. at 25; that, considering his age (43 years old, defined as a younger individual, on his alleged disability onset date, October 22, 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 7-10, id. at 29; and that he, therefore, had not been disabled from October 22, 2013, through the date of the decision, May 9, 2016, Finding 11, 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. §§ 404.981, 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. §§ 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 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).
Dr. Kirkpatrick submitted two opinions in support of the plaintiff's applications for disability benefits, one of which was a Multiple Sclerosis Medical Source Statement ("MSS") dated November 19, 2014. See Record at 373-76; see also id. at 377.
In her MSS, Dr. Kirkpatrick indicated, in relevant part, that (i) the plaintiff complained "of a type of fatigue that is best described as lassitude rather than fatigue of motor function[,]" (ii) "this kind of fatigue complaint is typical of M.S. patients[,]" (iii) the plaintiff would sometimes need to take unscheduled breaks during a work day at unknown intervals, and (iv) the plaintiff's impairments were likely to produce good days and bad days. Id. at 374-76. She attributed the plaintiff's need for unscheduled breaks to muscle weakness and chronic fatigue. See id. at 375.
In summarizing the medical evidence of record, the ALJ noted:
Id. at 26-27 (citations omitted).
The ALJ stated that, "[o]n the basis of the [plaintiff]'s fatigue and muscle pain due to his MS, I have limited him to light exertional level with only occasional climbing of stairs, ladders, ramps, ropes and scaffolds" as well as only occasional balancing, stooping, kneeling, crouching, and crawling. Id. at 27.
Turning to the opinion evidence, the ALJ indicated that she had given Dr. Kirkpatrick's November 2014 MSS "partial weight[,]" explaining:
Id. at 28.
The plaintiff argues, inter alia, that the ALJ erred in failing to supply good reasons for rejecting Dr. Kirkpatrick's opinion that the plaintiff needed unscheduled breaks. See Statement of Errors at 11-13. I agree.
A treating source's opinion on the nature and severity of a claimant's impairments is entitled to controlling weight if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with the other substantial evidence in [the claimant's] case record[.]" 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
Here, the ALJ articulated three reasons for rejecting Dr. Kirkpatrick's medical opinion that the plaintiff's MS-related symptoms of muscle weakness and chronic fatigue would require him to take unscheduled breaks: that (i) the limitation was not supported by the medical evidence, (ii) the plaintiff could walk up to two miles, and (iii) the plaintiff could climb stairs. See Record at 28.
The ALJ failed to explain how Dr. Kirkpatrick's opinion that the plaintiff would need unscheduled breaks was inconsistent with the medical evidence, and nothing in her general discussion of that evidence fills the gap. To the contrary, the ALJ noted that the plaintiff had repeatedly complained of fatigue, that, in August 2013, "the medical record indicated that fatigue was the [plaintiff's] main concern and problem[,]" and that "Dr. Kirkpatrick noted that fatigue seemed to be the factor most affecting [the plaintiff's] life." Id. at 26-27.
As the commissioner acknowledges, the ALJ gave great weight to Dr. Kirkpatrick's statement that fatigue was the factor most affecting the plaintiff's quality of life, deeming it "consistent with Plaintiff's unremarkable physical examination and . . . ongoing subjective complaints of fatigue." Defendant's Opposition to Plaintiff's Statement of Specific Errors ("Opposition") (ECF No. 23) at 6 (citations omitted); see also Record at 26-27.
Moreover, the ALJ stated, in the context of discussing the opinion of an agency examining consultant, that the plaintiff's "ongoing fatigue and difficulty handling are consistently noted in the medical records[,]" and she gave "some weight" to a May 1, 2014, opinion of the plaintiff's former employer that, "with [the plaintiff's] deteriorating eyesight and lack of strength and stability[,]" he "would be a risk on the job." Id. at 28. Of note, the employer had reported that the plaintiff "began to work only 6-8 hours a day and then began only coming into work 3-4 days a week." Id.
In sum, nothing in the ALJ's discussion of the longitudinal medical evidence of record explains how a need for unscheduled breaks is inconsistent with that evidence, which includes ongoing, well-documented complaints of chronic fatigue that she credited.
The ALJ further failed to explain how the plaintiff's ability to walk for up to two miles or climb stairs undermined Dr. Kirkpatrick's assessment of a need for unscheduled breaks. As before, the purported inconsistency is not self-evident.
The commissioner defends the ALJ's handling of Dr. Kirkpatrick's opinion primarily on the basis that Dr. Kirkpatrick failed to identify any record support for her assessment of a need for unscheduled breaks, asserting that nothing in the treatment record supports "extreme lassitude fatigue." Opposition at 8-9 (internal quotation marks omitted). She adds that the ALJ found that (i) the plaintiff's MS was stable, (ii) the plaintiff reported in August 2015 that he was walking more and doing well and could walk up to two miles a day, do the dishes, and care for his animals, and (iii) the plaintiff did not indicate, in a function report, that he had difficulty with concentration or completing tasks. See id. at 8.
However, the ALJ did not articulate most of those points as bases for discounting Dr. Kirkpatrick's assessed need for unscheduled breaks. "[A] reviewing court cannot affirm an agency's decision on the basis of a post hoc rationalization but must affirm, if at all, on the basis of a rationale actually articulated by the agency decision-maker." Belanger v. Berryhill, No. 2:17cv-00039-JHR, 2018 WL 1144389, at *3 (D. Me. Mar. 2, 2018) (citation and internal quotation marks omitted).
In any event, Dr. Kirkpatrick did identify support for the assessed limitation, attributing it to the plaintiff's muscle weakness and chronic fatigue. See Record at 374-75. That the plaintiff's MS was "stable" did not, in itself, undermine the Kirkpatrick limitation: as the plaintiff's counsel noted at oral argument, Dr. Kirkpatrick classified the plaintiff's MS as stable at a level encompassing chronic fatigue. Likewise, the plaintiff's reported ability to do dishes for half an hour once a week and to care for pets, see id. at 247-48, is not inconsistent with a need for unscheduled breaks. Nor, finally, can the plaintiff's lack of indication in his function report of difficulty with concentration or completing tasks, see id. at 251, fairly be read to undermine the Kirkpatrick limitation. In the same function report, the plaintiff also wrote that he had to rest for 10 minutes after walking a mile. See id.
In sum, the ALJ failed to supply good reasons as required by 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2) for the weight afforded a treating physician's medical opinion that the plaintiff's symptoms of muscle weakness and chronic fatigue would require unscheduled breaks.
"[T]his court has held that, in circumstances in which a treating physician has offered a material opinion conflicting with the finding of an [ALJ], a failure to address [or supply good reasons for discounting] that opinion warrants remand." Prior v. Colvin, No. 16-cv-00237-DBH, 2016 WL 7441610, at *3 (D. Me. Dec. 26, 2016) (rec. dec., aff'd Jan. 13, 2017); see also, e.g., Soto-Cedeño v. Astrue, 380 F. App'x 1, 4 (1st Cir. 2010) (vacating in part district court's affirmance of ALJ's decision on basis that "the ALJ did not give supportable reasons for rejecting [treating physician's] opinion as to [claimant's] ability to function in the workplace for the time frame the doctor had evaluated").
Dr. Kirkpatrick's opinion that the plaintiff required unscheduled breaks was material. A vocational expert present at the plaintiff's hearing gave testimony suggesting that such a limitation would preclude, or at least substantially erode, the base of available jobs:
Record at 91-92.
Because the ALJ failed to supply good reasons for rejecting Dr. Kirkpatrick's opinion that the plaintiff required unscheduled breaks as a result of MS-related muscle weakness and chronic fatigue, remand is warranted.
For the foregoing reasons, the commissioner's decision is
