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Paquin v. Colvin

United States District Court, District of Maine

September 25, 2014

MARK H. PAQUIN, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

Plaintiff MARK H PAQUIN represented by DAVID A. CHASE.

Defendant SOCIAL SECURITY represented by CHRISTOPHER L. POTTER, JASON W. VALENCIA, JEANNE D. SEMIVAN, SUSAN D. BELLER.

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 residual functional capacity (“RFC”) assigned to him by the administrative law judge lacked substantial evidentiary support. 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 degenerative disc disease at C5-C6, degenerative arthritis of the right ankle status post right ankle fracture, and adjustment disorder, 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 64-65; that he had the RFC for light work, except that he could only occasionally climb ladders, ropes, scaffolds, ramps, or stairs, could frequently balance, could occasionally stoop, kneel, crouch, and crawl, could perform no constant pulling or handling with the right upper extremity; must have the ability to sit or stand for five minutes every hour; and was limited to simple, routine, repetitive tasks, Finding 4, id. at 66; that he was unable to return to any past relevant work, Finding 5, id. at 69; that, given his age (43 on the date of application, July 6, 2010), limited education, work experience, and RFC, there were jobs existing in significant numbers in the national economy that the plaintiff could perform, Findings 6-9, id. at 70; and that, therefore, he had not been under a disability, as that term is defined in the Social Security Act, at any time through the date of the decision, May 25, 2012, Finding 10, id. at 71. The Appeal 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 his 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

The plaintiff asserts that “[t]here is no medical evidence of record to support the A[dministrative] L[aw] J[udge]’s determination that the Plaintiff’s difficulties with concentration, persistence, and pace are addressed by a limitation to simple work.” Statement of Specific Errors (“Itemized Statement”) (ECF No. 13) at 2. He cites Nelson v. Social Sec. Admin. Comm’r, No. 1:10-cv-00032-JAW, 2010 WL 5452126 (D. Me. Dec. 28, 2010), and Swift v. Astrue, Civil No. 08-280-B-W, 2009 WL 902067 (D. Me. Mar. 31, 2009), in support of his contention that this error requires remand. Id. at 3-4.

The administrative law judge found that the plaintiff had a mild limitation in his activities of daily living, a mild limitation in social functioning, and a moderate limitation in the area of concentration, persistence, or pace. Record at 65. She added:

In terms of mental impairments, the record reflects rare, if any, treatment for mental health issues. The claimant testified to a prescription of Lyrica at one point, and records from Sebasticook Family Doctors reveal[] a prescription of Cymbalta at another point, but the claimant testified that he stopped taking the medications after little more than a month because of side effects (Ex. 21F). Moreover, the claimant testified that he is scheduled for psychological counseling in October 2012; however, such remote scheduling diminishes the credibility of allegations of disabling mental health limitations. Nevertheless, the psychological consultative examiner David W. Booth, P[h.]D[., ] determined that the claimant has an adjustment disorder secondary to physical pain and discomfort and opined some difficulty concentrating and persisting with work requirements because of the pain and discomfort. Dr. Booth is a licensed examining psychologist and the undersigned gives his opinion some weight, particularly since the claimant medicates daily with medical marijuana. As such, the undersigned has limited the claimant to simple, routine, repetitive tasks (Ex. 4F).

Id. at 68.

The plaintiff apparently contends that Dr. Booth’s determination cannot serve as the basis for a limitation to simple, routine, repetitive tasks. He first criticizes the administrative law judge because she “did not provide any rationale for affording the[] opinions [of the state-agency psychologists] limited weight.” Itemized Statement at 3. However, both of the state-agency psychologists, Dr. Stahl and Dr. Burkhart, found that the plaintiff had no severe mental impairments. Record at 52, 346. The administrative law judge found a severe mental impairment and included a resulting limitation in the plaintiff’s RFC. This result is more favorable to the plaintiff than the findings of the state-agency psychologists. This court has held repeatedly that a claimant is not entitled to remand under such circumstances. See, e.g., Pierce v. Astrue, No. 1:10-cv-242-JAW, 2011 WL 2678919, at *6 (D. Me. July 7, 2011).[2]

In addition, the plaintiff does not cite any medical evidence in the record supporting a more restrictive limitation that would result from the moderate limitation in concentration, persistence, or pace. Such evidence is necessary to establish that the limitation assigned by the administrative law judge in not harmless error. See, e.g., Gonsalves v. Astrue, Civil No. 09-181-B-W, 2010 WL 1935753, at *6 (D. Me. ...


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