United States District Court, D. New Hampshire
David Plourde, Esq.
DiClerico, Jr. United States District Judge
magistrate judge has issued a report and recommendation to
grant Donna Payne's motion to reverse and remand the
decision of the Acting Commissioner denying her application
for disability insurance benefits. The magistrate judge
reports that the Administrative Law Judge ("ALJ")
erred in assessing Payne's residual functional capacity,
which resulted in an erroneous finding at Step
Four. The Acting Commissioner filed an objection
to the report and recommendation, challenging that
determination and asserting that any error in the residual
functional capacity assessment was harmless. Payne filed a
response to the objection.
court "makes[s] a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made." 28 U.S.C.
§ 636(b)(1). In making that determination, "the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate
magistrate judge reports that the ALJ erred in failing to
limit Payne's residual functional capacity to jobs that
required only simple instructions. Because the ALJ relied on
the faulty residual functional capacity assessment in finding
at Step Four that Payne could return to her former work, the
magistrate concluded that substantial evidence is lacking to
support the ALJ's assessment and recommended that the
ALJ's finding that Payne was not disabled be reversed.
The magistrate judge also concluded that the Acting
Commissioner's argument that the vocational expert's
testimony would support a finding at Step Five that Payne was
not disabled did not render the error at Step Four harmless.
support of her objection to the magistrate judge's
determination that the ALJ erred in assessing Payne's
residual functional capacity, the Acting Commissioner simply
refers to the "reasons set forth in the
Commissioner's initial brief." She provides no
specific argument to show that the magistrate judge made a
mistake in finding that the ALJ's residual functional
capacity assessment improperly omitted a limitation for jobs
requiring only simple instructions. The magistrate judge
thoroughly explained why the Acting Commissioner's
reasoning did not support the ALJ's assessment.
Acting Commissioner's reference to her "initial
brief" is not sufficient to raise an objection to the
magistrate judge's report and recommendation as to the
error in the ALJ's residual functional capacity
assessment. Therefore, the Acting Commissioner did not invoke
the court's de novo review of the issue. Nevertheless,
the court has reviewed the pertinent opinions and the
ALJ's analysis and concurs with the magistrate
Acting Commissioner also contends that even if the ALJ erred
in assessing Payne's residual functional capacity, as the
magistrate judge found, that error is harmless. The Acting
Commissioner points to the vocational expert's testimony
at the hearing about jobs that would be available even with a
limitation for simple unskilled work. In light of that
testimony, the Acting Commissioner argues that there was
evidence in the record that could have supported a finding at
Step Five that Payne was not disabled.
ALJ makes an alternative and correct finding at Step Five,
based on a vocational expert's testimony that considered
additional limitations, that finding may render an error in
assessing residual functional capacity at Step Four harmless.
See, e.g., Gobis v. Colvin, 2016 WL 3176635, at *5
(D.N.H. June 7, 2016). When the ALJ makes an erroneous
finding at Step Four but does not make an alternative finding
at Step Five, however, the error at Step Four is not
harmless. See Letellier v. Comm'r of Social Sec.
Admin., 2014 WL 936437, at *7-*8 (D.N.H. Mar. 11, 2014).
Because the ALJ did not make an alternative finding at Step
Five, the vocational expert's testimony does not make the
error at Step Four harmless.
Acting Commissioner also objects to the section of the report
and recommendation that provides the magistrate judge's
observations about the ALJ's evaluation of Dr.
Ganem's opinion. As the magistrate judge acknowledges,
resolving conflicts in the evidence is for the ALJ and not
the court. Irlanda Ortiz v. Sec'y of HHS, 955
F.2d 765, 769 (1st Cir. 1991). On the other hand, the court
may review the ALJ's evaluation of medical opinion
evidence under the applicable standard to determine whether
substantial evidence supports the ALJ's residual
functional capacity assessment. 20 C.F.R. § 404.1527;
see also McNelley v. Colvin, 2016 WL 2941714, at *1
(1st Cir. Apr. 28, 2016); Diaz v. Colvin, 2016 WL
2992909, at *2-*4 (D. Mass. Mar. 28, 2016).
magistrate judge's review of the ALJ's evaluation of
Dr. Ganem's opinion provided an analysis under §
404.1527 to show that the ALJ improperly afforded the opinion
little weight, it might have provided additional grounds for
reversing the decision. As written, however, the section
appears to provide only observations about that evidence that
are extraneous to the actual decision. Observations about the
evidence that are not related to the merits of the decision
are at most dicta.Therefore, to avoid confusion, the court
will not adopt the magistrate judge's observations about
the ALJ's evaluation of Dr. Ganem's opinion, and that
part of the report and recommendation is struck.
foregoing reasons, the report and recommendation is modified
to strike the section that begins near the bottom of page 17
("That said, in the interest of encouraging a proper
consideration of Payne's claim on remand, the court
observes that the decision to give limited weight to Dr.
Ganem's opinion may not have been well founded.")
and ends at the middle of page ...