Opinion
Docket No. 00-173-P-C
December 4, 2000
SOCIAL SECURITY ADMINISTRATION, COMMISSIONER, defendant.
JAMES M. MOORE, Esq., BANGOR, ME, WAYNE G. LEWIS, ESQ., BOSTON, MA, MICHAEL A. BELL, LEWISTON, ME, RAYMOND W. BIRON, plaintiff.
REPORT AND RECOMMENDED DECISION
This action is properly brought under 42 U.S.C. § 405(g). The commissioner has admitted that the plaintiff has exhausted his administrative remedies. The case is presented as a request for judicial review by this court pursuant to Local Rule 16.3(a)(2)(A), which requires the plaintiff to file an itemized statement of the specific errors upon which he seeks reversal of the commissioner=s decision and to complete and file a fact sheet available at the Clerk=s Office. Oral argument was held before me on December 1, 2000, pursuant to Local Rule 16.3(a)(2)(C) requiring the parties to set forth at oral argument their respective positions with citations to relevant statutes, regulations, case authority and page references to the administrative record.
This Social Security Disability ("SSD") appeal raises the question whether the commissioner erred in determining that (i) as to the plaintiff's claimed period of disability from September 6, 1994 through April 27, 1995 a prior adverse decision was res judicata; and (ii) as to the period from April 28, 1995 through March 31, 1997, the plaintiff's date last insured, he was able to perform work existing in significant numbers in the national economy. I recommend that the court find that it lacks authority to decide the res judicata issue and that, with respect to the period from April 28, 1995 through March 31, 1997 the decision of the commissioner be vacated and the cause remanded with directions to award the plaintiff benefits.
In accordance with the commissioner's sequential evaluation process, 20 C.F.R. § 404.1520; Goodermote v. Secretary of Health Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the administrative law judge found, in relevant part, that the plaintiff met disability insured status requirements from September 6, 1994, the date he stated he became unable to work, through March 31, 1997, Finding 1, Record at 24; that administrative res judicata applied to the period from September 6, 1994 through April 27, 1995, Finding 4, id.; that from April 28, 1995 through March 31, 1997 the plaintiff had severe impairments — dysthymia, status-post herniated cervical disc with chronic recurrent neck pain, multilevel degenerative disc disease of the cervical spine and early spondylosis — but that he did not have an impairment or combination of impairments that met or equaled those listed in Appendix 1 to Subpart P, 20 C.F.R. § 404 (the "Listings"), Finding 5, id.; that from April 28, 1995 through March 31, 1997 he retained the residual functional capacity to work at a job where he would lift ten pounds regularly and twenty pounds occasionally; twist his neck no more than sixty degrees to each side; not perform any overhead work; not perform any repetitive motions with his right upper extremity; not work on uneven ground; only occasionally stoop, crawl or crouch; never climb a ladder, rope or scaffold; and never use vibrating tools; provided that the job did not involve detailed instructions and extended concentrating or a need to respond to major changes in his environment, Finding 6, id.; that from April 28, 1995 through March 31, 1997 the plaintiff could not return to his past relevant work as a hand sewer, Finding 7, id. at 25; and that from April 28, 1995 through March 31, 1997, considering the plaintff's residual functional capacity, age (47 as of alleged date of onset), education (high school) and work experience, he could nevertheless perform work that existed in significant numbers in the national economy, Findings 8-10, id. The Appeals Council declined to review the decision, id. at 7-8, making it the final determination of the commissioner, 20 C.F.R. § 404.981; Dupuis v. Secretary 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); Manso-Pizarro v. Secretary 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 conclusions drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Secretary of Health Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
With respect to the period from April 28, 1995 through March 31, 1997, the administrative law judge 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(f); Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987); Goodermote, 690 F.2d at 7. The record must contain positive evidence in support of the commissioner's findings regarding the plaintiff's residual work capacity to perform such other work. Rosado v. Secretary of Health Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).
The plaintiff contends that the administrative law judge (i) erroneously applied the doctrine of res judicata to the period from September 6, 1994 through April 27, 1995, (ii) did not make clear whether she found his mental impairments severe or non-severe and, in any event, improperly disregarded the testimony of a medical expert present at hearing that at least as of August 1996 the plaintiff had a combination of impairments equaling Listing 12.04; (iii) relied upon a hypothetical question to a vocational expert present at hearing that failed to include substantional nonexertional limitations, including even those found by the administrative law judge to exist; and (iv) improperly assessed the plaintiff's credibility. See generally Statement of Errors.
Although the plaintiff refers to the res judicata period as ending on April 28, 1995, see Itemized Statement of Specific Errors and Motion To Supplement Record ("Statement of Errors") (Docket No. 3) at 2, it was found by the administrative law judge to have ended on April 27, 1995, see Record at 24 (Finding 4).
The plaintiff also moves to supplement the record. See Statement of Errors at 10. The motion is granted without objection.
II. Discussion A. Earlier Period (Res Judicata Issue)
The plaintiff first contends that the administrative law judge erred in declining to reopen a prior adverse decision covering the period from September 6, 1994 through April 27, 1995. See Statement of Errors at 2-4. In so arguing he encounters an intractable problem: that the court is without subject-matter jurisdiction to hear this portion of his appeal.Denial of a request to reopen a claim for benefits, regardless whether couched in terms of application of the doctrine of res judicata, generally is not subject to judicial review absent a colorable constitutional claim. Torres v. Secretary of Health Human Servs., 845 F.2d 1136, 1138 (1st Cir. 1988). This was made clear by the Supreme Court in Califano v. Sanders, 430 U.S. 99 (1977):
Respondent contends that . . . the Social Security Act itself, specifically § 205(g), should be construed to authorize judicial review of a final decision of the Secretary not to reopen a claim of benefits. All Courts of Appeals that have considered this contention have rejected it. We also agree that § 205(g) cannot be read to authorize judicial review of alleged abuses of agency discretion in refusing to reopen claims for social security benefits.
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Constitutional questions obviously are unsuited to resolution in administrative hearing procedures and, therefore, access to the courts is essential to the decision of such questions.
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This is not one of those rare instances where the Secretary's denial of a petition to reopen is challenged on constitutional grounds. . . . Therefore, § 205(g) does not afford subject-matter jurisdiction in this case.
Califano, 430 U.S. at 107-09 (footnote omitted).
At oral argument, counsel for the plaintiff made clear that he presents no such constitutional claim, instead relying on Social Security regulations that merely provide for reopening by the commissioner of decisions otherwise considered to have been final and binding. See, e.g., 20 C.F.R. § 404.987(a), 404.988. These regulations do not speak to the issue of the subject-matter jurisdiction of the court. I discern no basis upon which the plaintiff's challenge to the commissioner's res judicata determination is subject to judicial review.
Although the commissioner did not move to dismiss in part based on lack of subject-matter jurisdiction or in any other manner raise this issue prior to the hearing held December 1, 2000, a court may sua sponte raise and decide issues relating to its power to act. See, e.g., White v. Gittens, 121 F.3d 803, 806 (1st Cir. 1997) ("It is too elementary to warrant citation of authority that a court has an obligation to inquire sua sponte into its subject matter jurisdiction, and to proceed no further if such jurisdiction is wanting.") (citation and internal quotation marks omitted). In addition, counsel for the commissioner agreed at oral argument that the court lacked subject-matter jurisdiction to hear the res judicata component of the plaintiff's claim, citing Califano.
B. Subsequent Period (Step 5 Issue)
Turning to the period post-dating that as to which a prior adverse decision was deemed res judicata, I find one of the plaintiff's multiple complaints dispositive: that the administrative law judge relied at Step 5 on a flawed hypothetical question. See Statement of Errors at 6-9.An administrative law judge must "accurately transmit the clarified output to the [vocational] expert in the form of assumptions." Arocho v. Secretary of Health Human Servs., 670 F.2d 374, 375 (1st Cir. 1982). That was not done in this case.
The administrative law judge relied on the testimony of vocational expert Diane Herrle, who was present at hearing, in finding the plaintiff capable from April 28, 1995 through March 31, 1997 of performing work that existed in substantial numbers in the national economy. See Record at 23-24. However, in describing the plaintiff's residual functional capacity ("RFC") to Herrle, the administrative law judge omitted several nonexertional limitations that she herself later found to have been present — namely, that the plaintiff suffered from chronic neck pain and could work at a job that did not involve detailed instructions and extended concentration or a need to respond to major changes in his environment. Compare id. at 23-24 (describing RFC, noting chronic neck pain) with id. at 74-75 (relaying hypothetical to Herrle).
The error does not appear harmless. In response to the flawed hypothetical Herrle gave examples of only three sedentary, unskilled jobs that the plaintiff could perform — food checker, telephone solicitor and timekeeper. Id. at 76-77. When questioned by plaintiff's counsel Herrle testified that the presence of chronic pain, coupled with certain bending and sitting restrictions, eliminated the food-checker and telephone-solicitor jobs and that the presence of depression eliminated the remaining timekeeper job. Id. at 78-79. She further testified that "being able to be motivated and keep up with the pace is very important in all work. If you can't do it, you are going to be let go." Id. at 79. Even assuming arguendo that (as posited by counsel for the commissioner at oral argument) the hypothetical questions posed by the plaintiff's counsel were themselves inaccurate, the plaintiff's need to avoid jobs requiring extended concentration or responsiveness to major changes in environment casts serious doubt on whether he could sustain the pace and motivation required even of the food checker, telephone solicitor and timekeeper jobs.
On the basis of these (as well as other) errors, the plaintiff seeks remand with directions to award benefits. Statement of Errors at 9-10. For the claimed period of disability from April 28, 1995 through March 31, 1997, remand with instructions to award benefits is indeed warranted. See, e.g., Field v. Chater, 920 F. Supp. 240, 243 (D.Me. 1995) ("When the Commissioner had a full and fair opportunity to develop the record and meet her burden at Step 5, there is no reason for the court to remand for further factfinding.").
II. Conclusion
For the foregoing reasons, I recommend that (i) with respect to the claimed disability period of September 6, 1994 through April 27, 1995, the court refrain, on the basis of lack of subject-matter jurisdiction, from reviewing the commissioner's declination to reopen a prior adverse case; and (ii) with respect to the claimed disability period from April 28, 1995 through March 31, 1997, the decision of the commissioner be VACATED and the cause REMANDED with directions to award the plaintiff benefits.