United States District Court, D. Maine
THOMAS DANIEL HUFF, Plaintiff.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDED DECISION 
JOHN H. RICH, III, Magistrate Judge.
This Social Security Disability ("SSD") and Supplemental Security Income ("SSI") appeal raises the question of whether the administrative law judge supportably found the plaintiff capable of performing past relevant work. The plaintiff contends that the administrative law judge erred in determining his residual functional capacity ("RFC") and in evaluating the opinion of examining source Christopher Muncie, Psy.D., and related testimony of Carol Kabacoff, Ph.D., and that these errors are not harmless. See Itemized Statement of Errors Pursuant to Local Rule 16.3 Submitted by Plaintiff ("Statement of Errors") (ECF No. 11) at 2-4. I find no error and, accordingly, recommend that the court affirm the decision.
Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. §§ 404.1520, 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 met the insured status requirements of the Social Security Act through December 31, 2014, Finding 1, Record at 15; that he had severe impairments of depressive disorder, not otherwise specified, anxiety disorder, not otherwise specified, polysubstance dependence, by report in early remission, and alcohol dependence, Finding 3, id.; that he retained the RFC to perform a full range of work at all exertional levels but with the following nonexertional limitations: he was able to understand, carry out, and remember simple, repetitive instructions and could persist at that level of complexity for eight hours a day, five days a week on a consistent basis, and needed to avoid work with the general public but could interact appropriately with supervisors and co-workers and could handle changes in a routine work setting, Finding 5, id. at 17; that he was capable of performing past relevant work as a landscape laborer, which did not require the performance of work-related activities precluded by his RFC, Finding 6, id. at 21; and that he, therefore, was not disabled from October 20, 2009, his alleged onset date of disability, through the date of the decision, May 23, 2012, Finding 7, id. at 22. The Appeals Council declined to review the decision, id. at 1-3, making the decision the final determination of the commissioner, 20 C.F.R. §§ 404.981, 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. §§ 405(g), 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 4 of the sequential evaluation process, at which stage the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). At this step, the commissioner must make findings of the plaintiff's RFC and the physical and mental demands of past work and determine whether the plaintiff's RFC would permit performance of that work. 20 C.F.R. §§ 404.1520(f), 416.920(f); Social Security Ruling 82-62 ("SSR 82-62"), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.
The plaintiff's points of error focus on the supportability of the administrative law judge's finding that he was able to persist at tasks involving simple, repetitive instructions for eight hours a day, five days a week on a consistent basis. See Statement of Errors at 2-4. He argues that this finding is unsupported by medical opinion and, in fact, contradicted by it. See id. at 2.
The record contains five opinions of agency consultants bearing on the severity and effects of the plaintiff's mental impairments. In a report of an evaluation conducted on October 11, 2010, agency examining consultant James F. Whelan, Jr., Psy.D., stated, in relevant part, that the plaintiff had "the apparent cognitive ability to be able to do work that is at least simple and repetitive in nature[, ]" that he had "varied skills at persistence[, ]" that "[t]he demand to persist may increase his level of anxiety[, ]" and that "[a]ffective disorder may reduce his willingness to attempt to persist." Record at 513.
Agency nonexamining consultant Leigh Haskell, Ph.D., completed a psychiatric review technique form ("PRTF") dated October 22, 2010, in which, with the benefit of the Whelan report, she found the plaintiff to have severe affective and anxiety disorders causing, inter alia, moderate difficulties in maintaining concentration, persistence, or pace. See id. at 516, 526, 528. On the same date, she completed a mental RFC assessment in which she found, in relevant part:
He can be reliable and sustain 2-hour blocks at simple tasks over a normal work day/week. He keeps appointments and carries out a range of sustained activities such as those described above [preparing simple meals, doing laundry, shopping, handling money, and driving]. He remained seated and focused throughout the CE [consultant's evaluation]. He can not sustain attention on complex tasks.
Id. at 540.
In a report of an evaluation conducted on April 11, 2011, Dr. Muncie stated, in relevant part, "Anxiety and negative patterns to rumination would... be expected to interfere with [the plaintiff's] ability to persist on tasks within a work setting." Id. at 684. He noted, "Nevertheless, [the plaintiff] was capable of communicating his thoughts clearly and logically with this examiner." Id.
With the benefit of the Whelan and Muncie reports, agency nonexamining consultant Mary A. Burkhart, Ph.D., completed a PRTF dated April 21, 2011, in which she found that the plaintiff had a substance addiction disorder sufficiently severe to be disabling but, if one did not consider drug or alcohol abuse, he had only a nonsevere anxiety disorder causing, inter alia, mild difficulties in maintaining concentration, persistence, or pace. See id. at 115-16.
At the plaintiff's hearing on May 8, 2012, Dr. Kabacoff testified that he suffered from depressive disorder, not otherwise specified, anxiety disorder, not otherwise specified, polysubstance dependence, by report, in early remission, and alcohol dependence. See id. at 61. She stated that, considering everything, including substance abuse, he had, inter alia, mild to moderate difficulties in maintaining concentration, persistence, or pace. See id. at 62-63. ...