Opinion
CASE NO. C10-5489RBL/KLS.
May 11, 2011
ORDER
THIS MATTER comes on before the above-entitled court upon the Report and Recommendation of Chief Magistrate Judge Karen L. Strombom [Dkt. #18] and the Commissioner's Objections thereto [Dkt. #19]. Having considered the entirety of the records and file herein, the Court finds and rules as follows:
The Commissioner objects to Judge Strombom's findings that the ALJ erred in concluding that the claimant was not disabled, and to the recommendation that the matter be reversed and remanded to the Commissioner for further administrative proceedings. Specifically, the Commissioner objects to Judge Strombom's conclusion that the ALJ improperly weighed the mental residual functional capacity assessment ("MFRCA") of Thomas Clifford, Ph.D., a non-examining, consulting psychologist. The Commissioner also objects to Judge Strombom's interpretation of Dr. Clifford's finding that claimant "will benefit from extra oversight" as an actual limitation rather than a recommended accommodation.
The MRFCA is a form that contains three sections: (I) Summary Conclusions; (II) Remarks; and (III) Functional Capacity Assessment, describing a claimant's work-related limitations in a narrative. The Social Security Administrator's Program Operations Manual System ("POMS") instructs ALJs to focus on the narrative contained in Section III of the MRFCA. The POMS indicates that the purpose of Section I is to provide the psychologist or psychiatrist with a worksheet to insure that each of the listed mental activities has been considered in determining the claimant's residual functional capacity ("RFC").
Here, Judge Strombom recommended reversal based in part upon the ALJ's failure to adopt the moderate limitations Dr. Clifford noted in Section I of the MRFCA. That recommendation was based upon Judge Strombom's reasoning that "it is not entirely clear that the narrative statements contained in Section III are to be adopted to the complete exclusion of the summary conclusions contained in Section I, rather than to be read merely as an explanation thereof." [Dkt. #18, p. 8]. Judge Strombom recommended that this matter be reversed because "the ALJ did not make clear that this was what he was doing, and so remand for clarification of this is required." Id.
The Commissioner urges that the correct analysis of the interaction between Section I and Section III is that found in Thompson v. Astrue, No. C09-5792RBL. There, in responding to a challenge that the ALJ failed to take into account or discuss moderate limitations noted in Section I, the Magistrate Judge emphasized that it is the narrative in Section III that controls. Further, the Magistrate Judge found that Section I limitations noted did not need to be discussed by the ALJ because it is reasonable to assume that the psychologist included the Section I limitations in completing Section III. Thompson v. Astrue, C09-5792RBL, Report and Recommendation, Dkt. #27. pp. 12-13.
The Court agrees with the Commissioner. The better analysis is that found in Thompson. Therefore, the ALJ did not err by failing to include in claimant's RFC that claimant could not remember locations and work-like procedures.
The Court disagrees, however, with the Commissioner's objection to Judge Strombom's conclusion that remand is required because the ALJ failed to include as part of claimant's RFC the need for special supervision. In Section III of Dr. Clifford's MRFCA he states that claimant "will benefit from extra oversight." The Court does not agree with the Commissioner that this finding can only be interpreted as a recommended accommodation and not as a functional limitation. Thus, this matter should be remanded for further proceedings on this issue.
It is therefore ORDERED:
1. The Court adopts the Report and Recommendation except as set forth in this Order.
2. The ALJ erred as described in the Report and Recommendation and as modified by this Order.
3. The matter is therefore REVERSED and REMANDED to the Commissioner for further administrative proceedings.
4. The Clerk is directed to send copies of this Order to all counsel of record and to Chief Magistrate Judge Karen L. Strombom.