LIBBY v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

1
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
SHAWN L., 	)
)
Plaintiff 	)
)
v. 	) 	No. 2:25-cv-00084-KFW
)
FRANK BISIGNANO, 	)
Commissioner of 	)
Social Security, 	)
)
Defendant 	)
MEMORANDUM OF DECISION1
The Plaintiff in this Social Security Disability and Supplemental Security
Income 	appeal 	argues 	that 	the 	Administrative 	Law 	Judge 	(ALJ) 	erred 	by
inadequately explaining how she evaluated the supportability and consistency of
medical opinions and prior administrative medical findings. 	See Plaintiff’s Brief
(ECF No. 12). I agree and vacate the Commissioner’s decision and remand the matter
for further proceedings consistent with this decision.
I. Background
The Plaintiff applied for benefits in December 2019. 	Record at 144, 437-43.
After denials at the initial and reconsideration levels, the Plaintiff filed a written
request for a hearing before an ALJ. Id. at 39, 144, 189-90. The hearing occurred in
September 2021. Id. at 36-73, 144. After the hearing, the Plaintiff was scheduled for
1 The parties have consented to my presiding over all proceedings in this action, including the entry of
judgment. See ECF No. 9.
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a psychological evaluation with Donna Gates, Ph.D., to address insufficient evidence
in the file. 	Id. at 144, 1109. 	The Plaintiff then received Dr. Gates’s report,
accompanied by a proffer notice stating that, if requested, the ALJ would grant a
supplemental hearing unless there was a fully favorable decision. 	Id. at 584,
1109-1112. 	The Plaintiff’s requests for a supplemental hearing and proposed
interrogatories were denied after the ALJ determined that the proposed questions
had either been sufficiently answered in Dr. Gates’s report or were irrelevant.
Id. at 146. The ALJ issued an unfavorable decision in August 2022. Id. at 141-163.
The Plaintiff sought review by the Appeals Council, which determined that a
supplemental hearing should have been granted because the language in the proffer
notice for Dr. Gates’s report indicated that, under these circumstances, a hearing
would be granted. 	Id. at 166, 584. 	The Appeals Council vacated the decision and
remanded the case to the ALJ, who held a second hearing in February 2024 before
issuing an unfavorable decision on March 27, 2024. Id. at 14-28, 74-104. The Appeals
Council denied the Plaintiff’s request for review, see id. at 1-6, rendering the ALJ’s
decision the final determination of the Commissioner, see 20 C.F.R. §§ 404.981,
416.1481.
II. Standard of Review
A final decision of the Commissioner is subject to judicial review to determine
whether it complies with correct legal standards and is supported by substantial
evidence. 	See 42 U.S.C. §§ 405(g), 1383(c)(3); Seavey v. Barnhart, 276 F.3d 1,
9 (1st Cir. 2001). Substantial evidence refers to evidence in the administrative record
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that a reasonable mind would accept as adequate to support an ALJ’s findings.
See Biestek v. Berryhill, 587 U.S. 97, 102-03 (2019). 	If supported by substantial
evidence, an ALJ’s findings are conclusive even if the record could support a different
outcome. 	See Irlanda Ortiz v. Sec’y of Health & Hum. Servs., 955 F.2d 765,
770 (1st Cir. 1991).
III. Discussion
The Plaintiff’s primary argument is that the ALJ inadequately addressed the
supportability and consistency of medical opinion evidence. Plaintiff’s Brief at 12-16.
Following the Appeals Council’s vacatur of the August 2022 decision, the ALJ held
the second hearing. During this hearing, she discussed the procedural status of the
case, stating that the Appeals Council “returned it to the hearing level. 	When they
do that, essentially what they are saying is start over and hold a new hearing. That’s
what we’re going to do.” Record at 77. The ALJ then issued the second unfavorable
decision. Id. at 14-28. In doing so, she did not incorporate any portion of the vacated
2022 decision in either the hearing or in the subsequent written decision now on
appeal. In the final decision, the ALJ found the opinions of the state agency medical
psychology consultants and Dr. Gates to be “persuasive, as they are consistent with
and supported by the objective treatment record, including the most recent treatment
notes at Exhibit 19F.” 	Id. at 25. 	This statement is the full extent of the ALJ’s
supportability and consistency analysis.2
2 I looked to the decision as a whole to determine whether the ALJ’s consistency and supportability
findings are supported by the record. See Evon F. v. Colvin, No. 2:23-cv-00383-LEW, 2025 WL 289184,
at *3 (D. Me. Jan. 24, 2025) (rec. dec.), aff’d, 2025 WL 722858 (D. Me. Mar. 6, 2025). But the ALJ
failed to meaningfully engage with the evidence, and I cannot search the record as a fact finder; rather,
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An ALJ must “explain how [she] considered the supportability and consistency
factors for a medical source’s medical opinions.” 20 C.F.R. § 404.1520c(b)(2), see also
Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg.
5844-01, 5858 (Jan. 18, 2017) (saying that the purpose of the so-called articulation
requirement is to allow “a reviewing court to trace the path of [the ALJ’s] reasoning”).
Here, the ALJ’s explanation in her March 2024 decision is insufficient to permit
meaningful judicial review of her reasoning. The ALJ’s first 2022 decision contained
a more extensive analysis of the evidence and the medical opinions’ supportability
and consistency. See Record at 155-156. But that vacated decision is not before me
on appeal. 	See Ortiz v. Dudek, No. 24-cv-11704-ADB, 2025 WL 1400356, at *13
(D. Mass. May 14, 2025) (“The Court cannot revive the ALJ’s original decision, itself
vacated by the Appeals Council . . . . The current appeal before the Court is of the
ALJ’s second . . . decision—not the Appeals Council’s remand order. 	As such, the
ultimate issue before this Court is whether the [ALJ’s] final . . . decision is supported
by 	substantial 	evidence 	and 	whether 	the 	correct 	legal 	standard 	was 	used.”
(cleaned up)); 	Reedom 	v. 	Soc. 	Sec. 	Admin. 	Com’r, 	No. 	2:13-cv-00308-JAW,
2013 WL 5960861, at *1 (D. Me. Nov. 7, 2013) (rec. dec.) (“Only those decisions of the
Commissioner that are ‘final’ are subject to judicial review.”), aff’d, 2013 WL 5960861
(Apr. 8, 2014). 	An ALJ may incorporate a previous decision by referencing it in the
final 	decision 	on 	appeal. 	See 	Smith 	v. 	Berryhill, 	No. 	1:16-cv-00567-JHR,
2018 WL 1474528, at *3 (D. Me. Mar. 26, 2018). But that did not happen here, and
my “review is limited to a determination of whether the findings of the [Commissioner] were supported
by substantial evidence.” Deblois v. Sec’y of Health & Human Servs., 686 F.2d 76, 79 (1st Cir. 1982).
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the consistency and supportability analysis in the March 2024 decision is insufficient
to permit meaningful review.
In the briefing, the Commissioner conducted a lengthy recitation and analysis
of evidence that is nowhere found in the March 2024 decision. Commissioner’s Brief
at 3-12, 13-18. “Regardless of the validity of [the Commissioner’s] argument, it is not
for [the Commissioner] to make arguments in support of the ALJ’s decision that the
ALJ did not make.” 	Boyer v. Colvin, No. 15-cv-148-LM, 2016 WL 184394, at *7
(D.N.H. Jan. 15, 2016) (cleaned up); see also Sec. & Exch. Comm’n v. Chenery Corp.,
332 	U.S. 	194, 	196 	(1947) 	(Discussing 	the 	“simple 	but 	fundamental 	rule 	of
administrative law” requiring “a reviewing court, in dealing with a determination or
judgment which an administrative agency alone is authorized to make, [to] judge the
propriety of such action solely by the grounds invoked by the agency”). Thus, the fact
that there may be substantial evidence in the record to support the ALJ’s decision
does not render the ALJ’s failure to explain her decision harmless because even read
as a whole, the decision does not engage with the evidence in a way that permits
meaningful review. 	See Craig G. C. v. Saul, No. 2:20-cv-00217-JDL, 2021 WL
2012307, at *5 (D. Me. May 20, 2021) (rec. dec.) (“[R]eversal and remand are
warranted when failures to explicate and/or even address material issues prevent a
reviewing court from concluding that the ALJ reached a supportable result via an
acceptable 	analytical 	pathway.” 	(cleaned 	up)), 	aff’d, 	2021 	WL 	2416963
(D. Me. June 14, 2021).
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Then, at oral argument, the Commissioner contended that a remand would be
an empty exercise because the Plaintiff’s treating providers gave no explanation for
their opinions. 	However, a remand will be an empty exercise only if “there was an
independent ground on which affirmance must be entered as a matter of law.”
Ward v. 	Commissioner 	of 	Soc. 	Sec., 	211 	F.3d 	652, 	656 	(1st 	Cir. 	2000). 	The
Commissioner did not identify such a ground in briefing or argument. 	Instead, the
Commissioner invites 	a 	post 	hoc 	rationalization 	of 	the 	ALJ’s 	consistency 	and
supportability findings, an action reviewing courts cannot take. See High v. Astrue,
No. 10-cv-69-JD, 2011 WL 941572, at *6 (D.N.H. Mar. 17, 2011) (“[T]he court cannot
consider or provide post hoc rationalizations for the ALJ’s decision and instead is
limited to evaluating the decision based solely on the reasons stated in the decision
. . . .” (cleaned up)).
IV. Conclusion
For the foregoing reasons, the Commissioner’s decision is VACATED and
REMANDED for further proceedings consistent with this opinion.3
Dated: March 24, 2026
/s/ Karen Frink Wolf
United States Magistrate Judge
3 The Plaintiff made other arguments that I do not address because a remand is warranted on this
issue.
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