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Dumont v. Berryhill

United States District Court, D. Massachusetts

December 22, 2017

KATHERINE A. DUMONT, Plaintiff,
v.
NANCY A. BERRYHILL,[1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS REGARDING DENIAL OF SOCIAL SECURITY BENEFITS

          Judith Gail Dein, United States Magistrate Judge

         I. INTRODUCTION

         The plaintiff, Katherine A. Dumont (“Dumont”), has brought this action pursuant to sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g) and 1383(c)(3), in order to challenge the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying her claims for Social Security Disability Insurance (“SSDI”) and Supplemental Security Income (“SSI”) benefits. The matter is before the court on the “Plaintiff's Motion to Reverse the Decision of the Commissioner” (Docket No. 22), by which the plaintiff requests that the court reverse the decision to deny her claims for benefits and remand the matter to the Social Security Administration for further administrative proceedings. It is also before the court on the “Motion to Affirm the Commissioner's Decision” (Docket No. 28), by which the Commissioner is seeking an order upholding her determination that Dumont is not disabled within the meaning of the Social Security Act, and is therefore not entitled to SSI or SSDI benefits. At issue is whether the findings of the Administrative Law Judge (“ALJ”) regarding the plaintiff's residual functional capacity (“RFC”) are internally consistent, and whether the ALJ appropriately considered expert medical evidence related to Dumont's mental capacity from two state agency medical consultants and an impartial medical expert. Also at issue is whether the ALJ clarified Dumont's RFC with respect to her social functioning as ordered by the Appeals Council. As detailed below, this court finds that the RFC is not internally inconsistent, but that the ALJ committed error in assessing the plaintiff's RFC by failing to appropriately consider the opinion evidence of two state agency medical consultants and an impartial medical expert that limits Dumont to performing simple as opposed to complex tasks. As a result, the case must be remanded. This court finds that the plaintiff's argument that the ALJ failed to comply with the Appeals Council's remand order is not fully developed. However, in light of the remand on other grounds, this court recommends that the ALJ revisit the social functioning component of the RFC. Therefore, and for all the reasons described herein, the plaintiff's motion to reverse or remand is ALLOWED, and the Commissioner's motion to affirm is DENIED.

         II. STATEMENT OF FACTS [2]

         Dumont was born on December 10, 1957, and was 52 years old at the expiration of her date last insured in 2009. (Tr. 65, 271-72). She completed high school and attended, but did not complete, college. (Tr. 66). When she was 19 years old, Dumont suffered a traumatic event. (Tr. 706). From 1998 to 2001, she worked as an office manager for a construction company. (Tr. 288). She was incarcerated for a year due to a conviction for embezzlement (Tr. 70) and then, in approximately 2003, began working as a registrar at Fisher College, where she remained until she was laid off in 2005. (Tr. 67, 288).

         Dumont has a history of mental and physical health issues. She sought mental health treatment from 1996-1998 (Tr. 388-90, 436-61), 2001-2009 (Tr. 393-435, 1003-06), and 2010-2014[3] (Tr. 598-630; 742-60; 774-78; 804-66; 941-1002; 1066-122) for a variety of issues over the years, including anxiety, social phobia, depression, mood disorder, and post-traumatic stress disorder (“PTSD”). She claims that her PTSD, social phobia, manic depression and anxiety attacks, as well as her diabetes and breathing problems, preclude her from carrying out any type of gainful work activity. (Tr. 287). On appeal to this court, she is only challenging the ALJ's decision with regard to her claimed mental impairments.

         Procedural History

         On September 7, 2010, Dumont filed applications for SSDI and SSI, claiming that she had been unable to work since May 31, 2005 due to PTSD, social phobia, manic depression, anxiety attacks, diabetes, and breathing problems. (Tr. 238-52). Her applications were denied initially on January 5, 2011, and upon reconsideration on September 9, 2011. (Tr. 129-34; 139-44). Dumont then requested and was granted a hearing before an ALJ, which took place on January 15, 2013 in Boston, Massachusetts. (Tr. 33-53; 145-50). The plaintiff, who was represented by counsel, appeared and testified at the hearing. (Tr. 33-53). On January 31, 2013, the ALJ issued a decision denying Dumont's claims for benefits. (Tr. 108-19).

         Subsequently, Dumont filed a request for review of the ALJ's decision by the Social Security Appeals Council. (Tr. 182). The Appeals Council granted Dumont's request for review, and on July 2, 2014 remanded the matter to the ALJ for further evaluation of the record. (Tr. 125-27). In particular, but without limitation, on remand the ALJ was to determine the claimant's social limitations, with references to evidence in the record, and to obtain evidence from a vocational expert to clarify the assessed limitations on the claimant's occupational base. (Dec. 1; Tr. 14).

         Following the remand, a hearing was held on December 18, 2014 in Boston, Massachusetts before a different ALJ. (Tr. 54-100). The plaintiff, who was represented by counsel, appeared and testified at the hearing. (Id.). The ALJ also obtained testimony from Dr. Reddick, an impartial medical expert, and Ms. Hutchinson, a vocational expert (“VE”), who described Dumont's vocational background based on her past work experience and responded to hypothetical questions that were designed to determine whether jobs exist in the national and regional economies for an individual with the same age, educational background, work experience and RFC as the plaintiff. (Id.).

         On March 19, 2015, the ALJ issued a decision denying Dumont's claims for benefits. (Tr. 14-24). On June 3, 2015, Dumont appealed the decision to the Appeals Council, which denied review on May 17, 2016, thereby making the ALJ's decision the final decision of the Commis-sioner for purposes of review. (Tr. 1-4, 9-10). Accordingly, the plaintiff has exhausted all of her administrative remedies and the case is ripe for judicial review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

         The ALJ's Decision

         The ALJ concluded that from May 31, 2005 through the date of his decision on March 19, 2015, Dumont “ha[d] not been under a disability, as defined in the Social Security Act, ” which defines “disability” as “the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment or combination of impairments that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months.” (Dec. Finding #7; Tr. 24). See also 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). There is no dispute that the ALJ, in reaching his decision that Dumont was not disabled, performed the five-step sequential evaluation required by 20 C.F.R. §§ 404.1520 and 416.920. The procedure resulted in the following analysis, which is further detailed in the ALJ's “Findings of Fact and Conclusions of Law.” (See Dec. 3-11; Tr. 16-24).

         The first inquiry in the five-step evaluation process is whether the claimant is “engaged in substantial gainful work activity[.]” Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001). If so, the claimant is automatically considered not disabled and the application for benefits is denied. See Id. In this case, the ALJ found that Dumont had not engaged in such activity since May 31, 2005, the alleged onset date of her disability. (Dec. Finding #2; Tr. 16). Therefore, he proceeded to the second step in the sequential analysis.

         The second inquiry is whether the claimant has a “severe impairment, ” meaning an “impairment or combination of impairments which significantly limits [her] physical or mental ability to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is deemed not to be disabled and the application for benefits is denied. See Seavey, 276 F.3d at 5. Here, however, the ALJ determined that Dumont suffered from the severe impairments of depression and panic attacks, as well as the non-severe impairments of diabetes mellitus and chronic pulmonary insufficiency/asthma. (Dec. 4; Tr. 17). Because he found that the plaintiff had an impairment that was severe, the ALJ's analysis continued.

         The third inquiry is whether the claimant has an impairment equivalent to a specific list of impairments contained in Appendix 1 of the Social Security regulations, in which case the claimant would automatically be found disabled. See Seavey, 276 F.3d at 5; 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). At this step, the ALJ concluded that the plaintiff's impairments, either alone or in combination, did not meet or medically equal any of the listed impairments. (Dec. Finding #4; Tr. 17). Consequently, he proceeded to step four.

         The fourth inquiry asks whether “the applicant's ‘residual functional capacity' is such that he or she can still perform past relevant work[.]” Seavey, 276 F.3d at 5. Thus, in order to answer this inquiry, the ALJ must first make an assessment regarding the claimant's RFC. In the instant case, the ALJ assessed Dumont's RFC as follows:

After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)4 except for the following limitations and 4 20 C.F.R. §§ 404.1567(b) and 416.967(b) define “light work” as follows: “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or restrictions: she can perform routine tasks up to and including SVP-8 level work; she needs her own cubicle or workspace; and she can have less than intensive, i.e. occasional supervision.

(Dec. Finding #5; Tr. 19) (footnote added).

         In reaching his conclusion regarding the plaintiff's RFC, the ALJ first considered all of Dumont's symptoms and the extent to which those symptoms were consistent with the objective medical evidence and other evidence in the record. (Dec. 6; Tr. 19). Accordingly, the ALJ reviewed the plaintiff's medical records, which consisted of records covering the time period from February 1996 through November 2014. (See Dec. 6-10; Tr.19-23). He also considered the available opinion evidence, as well as statements that Dumont had made at the hearing regarding her symptoms and the extent to which those symptoms interfered with her ability to carry out day-to-day activities. (Id.). Because the ALJ found that Dumont's medically determinable impairments could reasonably be expected to cause some alleged symptoms, he went on to determine whether her subjective statements about the limiting effects of her symptoms were credible in light of the entire record. (See Dec. 7; Tr. 20). The ALJ concluded that “the claimant's statements concerning the intensity, persistence and limiting effects of her symptoms are not entirely credible for the reasons explained in this decision.” (Id.).

         Dumont contends that the ALJ committed three reversible errors in assessing her RFC. First, Dumont challenges the RFC as internally inconsistent. Second, she asserts that the ALJ ignored the opinions of Dr. Maliszewski, Dr. Lasky and Dr. Reddick, that her mental capacity leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” limits her to performing simple tasks, a conclusion that is inconsistent with the ALJ's RFC finding that she is capable of performing work up to and including SVP-8 work. Third, Dumont argues that the ALJ failed to clarify Dumont's RFC with respect to her social functioning as ordered by the Appeals Council on remand. For the reasons described below, this court finds that the RFC is not internally inconsistent, but that the ALJ's handling of the medical opinion testimony was insufficient and that, therefore, remand is warranted. This court also finds that the plaintiff's argument that the ALJ failed to comply with the Appeals Council's remand order to clarify Dumont's social limitation is not fully developed by the plaintiff.

         After explaining the basis for his RFC determination, the ALJ compared Dumont's RFC to the physical and mental demands of her past work as a college registrar and office manager, and considered the VE's testimony that an individual with Dumont's age, education, work history and RFC would be capable of returning to each of those positions. (Dec. 10-11; Tr. 23-24). The ALJ concluded that Dumont was capable of performing her past relevant work as the work is actually and generally performed in the national economy. (Id.).

         If an ALJ finds that the claimant has the RFC to perform her past relevant work, the claimant is deemed not to be disabled, and there is no need for the ALJ to proceed to step five. See 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv) (“[a]t the fourth step, we consider our assessment of your [RFC] and your past relevant work. If you can still do your past relevant work, we will find that you are not disabled”); Seavey, 276 F.3d at 5 (explaining that “[a]ll five steps are not applied to every applicant, as the determination may be concluded at any step along the process”). However, the ALJ in the instant case made an alternative finding under step five.

         The fifth inquiry is whether, given the claimant's RFC, education, work experience and age, the claimant is capable of performing other work. See Seavey, 276 F.3d at 5; 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If so, the claimant is not disabled. Id. At step five, the Commissioner has the burden “of coming forward with evidence of specific jobs in the national economy that the applicant can still perform.” Seavey, 276 F.3d at 5. Here, the ALJ relied on the VE's testimony to conclude that Dumont was capable of performing jobs that exist in significant numbers in the national economy, including the sedentary skilled job of an accounting clerk and the sedentary semi-skilled job of a billing clerk. (Dec. 10-11; Tr. 23-24). Therefore, the ALJ concluded that “although . . . the claimant's additional limitations do not allow her [to] perform the full range of light ...


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