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Beatty v. Colvin

United States District Court, District of Maine

March 30, 2014

DRUSILLA V. BEATTY, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

Plaintiff DRUSILLA V BEATTY represented by DAVID A. CHASE MACDONALD, CHASE & DUFOUR

Defendant SOCIAL SECURITY ADMINISTRATION COMMISSIONER represented by JEANNE D. SEMIVAN SOCIAL SECURITY ADMINISTRATION OFFICE OF GENERAL COUNSEL JOHN F. KENNEDY FEDERAL, SUSAN D. BELLER SOCIAL SECURITY ADMINISTRATION OFFICE OF GENERAL COUNSEL.

REPORT AND RECOMMENDED DECISION [1]

JOHN H. RICH III UNITED STATES MAGISTRATE JUDGE

The plaintiff in this Supplemental Security Income (“SSI”) appeal contends that the administrative law judge used an incorrect measure in deriving the plaintiff’s residual functional capacity (“RFC”), improperly evaluated the opinions of two treating professionals, relied on an unsupported opinion from a nonexamining state-agency reviewer, improperly considered her work history, and improperly evaluated the function report completed by her husband. I recommend that the court affirm the commissioner’s decision.

In accordance with the commissioner’s sequential evaluation process, 20 C.F.R. § 416.920; 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 suffered from post traumatic stress disorder (“PTSD”), panic disorder with agoraphobia, and dysthymia, impairments that were severe but which, considered separately or in combination, did not meet or medically equal the criteria of any impairment listed in Appendix 1 to 20 C.F.R. Part 404, Subpart P (the “Listings”), Findings 2-3, Record at 56-57; that she retained the RFC for a full range of work at all exertional levels but was limited to occupations that involve only simple, routine, repetitive tasks, could not tolerate occupations that had sudden, unpredictable work place changes or situations requiring an immediate response to changing circumstances, could tolerate only occasional interaction and no cooperative task with coworkers and could not interact with the public, Finding 4, id. at 57-58; that she had no past relevant work, Finding 5, id. at 63; that, given her age (24 on the date that her application was filed, January 5, 2010), at least high school education, work experience, and RFC, there were jobs existing in significant numbers in the regional economy that she could perform, Findings 6-9, id.; and that, therefore, she had not been under a disability, as that term is defined in the Social Security Act, at any time from the date of the application through the date of the decision, December 5, 2011, Finding 10, id. at 64. The Appeals Council declined to review the decision, id. at 1-3, making it the final determination of the commissioner. 20 C.F.R. § 416.1481; 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. § 1383(c)(3); 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 conclusion 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).

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 her past relevant work. 20 C.F.R. § 416.920(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the commissioner’s findings regarding the plaintiff’s RFC to perform such other work. Rosado v. Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

I. Discussion

A. Activities of Daily Living

The plaintiff’s first challenge to the administrative law judge’s decision asserts that he erroneously “relied primarily on the Plaintiff’s activities of daily living to determine that she has a work capacity.” Statement of Specific Errors (“Itemized Statement”) (ECF No. 13) at 2. A claimant’s ability to perform activities of daily living, standing alone, cannot provide sufficient evidence to support an RFC. Drew v. Astrue, Civil No. 09-363-B-W, 2010 WL 1946335, at *4 n.4 (D. Me. May 12, 2010).

The administrative law judge did not base his RFC finding entirely, or even primarily, on the plaintiff’s reported activities of daily living. In addition to that factor, he discussed in detail the notes and reports of treating medical professionals, the report of a consulting examining psychologist, her social functioning, her concentration, persistence, and pace, the opinions of two state-agency reviewers, and a function report from the plaintiff’s husband. Record at 58-63.[2] He discussed the plaintiff’s activities of daily living in connection with his evaluation of the plaintiff’s credibility, which is the customary use of such evidence. See, e.g., Smith v. Colvin, No. 1:12-cv-300-NT, 2013 WL 3781480, at *5 (D. Me. July 18, 2013).

The plaintiff is not entitled to remand on this basis.

B. Evaluation of Opinions of Dr. Hale and Tracey Minervino

The plaintiff was evaluated by John S. Hale, Jr., Ed.D., a psychologist, at the request of her attorney, Record at 341, and treated by Tracey Minervino, a licensed clinical social worker. The plaintiff contends that the administrative law judge did not “provide sufficient reason for dismissing the opinions of Dr. Hale.” ...


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