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Preston v. Colvin

United States District Court, District of Maine

October 1, 2014

ANNE MARIE PRESTON, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

Plaintiff ANNE MARIE PRESTON represented by ANDREW J. BERNSTEIN LAW OFFICE OF JOSEPH BORNSTEIN

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

REPORT AND RECOMMENDED DECISION[1]

JOHN H. RICH III UNITED STATES MAGISTRATE JUDGE

The plaintiff in this Social Security Disability (“SSD”) appeal contends that the administrative law judge failed to assess properly her physical and mental residual functional capacities (“RFC”), improperly rejected the opinions of her treating professionals, and failed to explain properly her evaluation of the plaintiff’s credibility. I recommend that the court affirm the commissioner’s decision.

In accordance with the commissioner’s sequential evaluation process, 20 C.F.R. § 404.1520; 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 scoliosis of the thoracic spine, anxiety disorder, and depression, 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 3-4, Record at 20-21; that she had the RFC to perform work at the medium exertional level, except that she could understand, remember, and carry out simple, repetitive instructions and could persist at that level of complexity for eight hours a day and five days a week on a consistent basis, would need to avoid work with the general public but could interact appropriately with co-workers and supervisors and could adapt to routine changes in the work setting, Finding 5, id. at 23; that she was capable of performing her past relevant work as a laundry worker, Finding 6, id. at 27; and that, therefore, she was not under a disability, as that term is defined in the Social Security Act, at any time from the alleged date of onset, June 22, 2009, through the date of the decision, July 27, 2012, Finding 7, id. at 29. The Appeals Council declined to review the decision, id. at 1-3, making it the final determination of the commissioner. 20 C.F.R. § 404.981; 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); 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); 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); Social Security Ruling 82-62, reprinted in West’s Social Security Reporting Service Rulings 1975-1982, at 813.

I. Discussion

A. Mental RFC

The plaintiff first contends that the administrative law judge should not have given great weight to the opinion of Brian Stahl, Ph.D., a state-agency psychologist who did not examine the plaintiff, because he “did not describe limitations regarding the Plaintiff’s depressive disorder and did not identify how the Plaintiff’s anxiety disorder imposed limitations separate and independent from her underlying reduced intellectual functioning.” Plaintiff’s Statement of Errors (“Itemized Statement”) (ECF No. 15) at 4.

To the contrary, Dr. Stahl found that the plaintiff suffered from both affective disorders[2]and anxiety-related disorders, Record at 257, and he does not suggest any other basis for the limitations that he assigned to her, id. at 273. The plaintiff offers no authority to support her contention that a state-agency reviewer, whether psychologist or medical doctor, must expressly link each limitation to the impairment that he or she finds caused that impairment. I am aware of no such requirement.

Next, the plaintiff contends that the administrative law judge could not rely on Dr. Stahl’s opinions because Dr. Stahl formed those opinions “without review of a substantial amount of evidence . . . received at the hearing level” which she characterizes as “show[ing] that [she] is more limited than previously assessed.” Itemized Statement at 4. She identifies this evidence as pages 275 to 354 of the record. Id. She then refers to several earlier pages of the record, pages 247 and 271, id., which I decline to consider in view of her own description of the evidence at issue as being subsequently-submitted. Of those pages that were subsequently submitted, the plaintiff cites specifically only to pages 344 and 352. Id.

The plaintiff correctly cites Kittrick v. Astrue, Civil No. 09-265-BW, 2010 WL 1946321, at *3 (D. Me. May 12, 2010), for the proposition that reliance on the opinion of a state-agency reviewer may be inappropriate when material, new evidence is added to the record after that opinion has been submitted; but, it is not appropriate to do so in every such instance. When the medical evidence postdating state-agency reviewers’ reports is essentially cumulative, an administrative law judge’s reliance on those reports is not error. Anderson v. Astrue, No. 1:11-cv-476-DBH, 2012 WL 5256294, at *4 (D. Me. Sept. 27, 2012); Strout v. Astrue, Civil No. 08-181-B-W, 2009 WL 214576, at *8-*9 (D. Me. Jan. 28, 2009)(where records unseen by state-agency reviewers were cumulative of records they did see or reflected improvement in claimant’s condition, not error for administrative law judge to rely on reviewers’ opinions).

Here, the first of the two subsequently-submitted pages of evidence cited by the plaintiff is a page from a form entitled “Treating Source Statement – RFC” signed by Robert B. Rovner, M.D. on May 9, 2012. Record at 344, 347. On the cited page, Dr. Rovner checks off entries stating that the plaintiff “probably could not consistently complete a typical 8-hour work day or 40-hour work week without interruptions from psychologically based symptoms, ” that she “probably could not perform at a consistent pace without more than the minimum number and ...


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