United States District Court, D. Maine
HOWARD J. LITTLE, JR., 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 work existing in significant numbers in the national economy. The plaintiff contends that the administrative law judge erred in dismissing the psychological expert scheduled to testify at his hearing, made a flawed analysis of whether his impairments met or equaled the criteria of Appendix 1 to Subpart P, 20 C.F.R. § 404 (the "Listings"), failed to call a vocational expert who was present at his hearing, arrived at a determination of his mental residual functional capacity ("RFC") that is unsupported by substantial evidence, made a flawed credibility determination, and failed to make a function-by-function analysis of his mental RFC. See Plaintiff's Statement of Errors ("Statement of Errors") (ECF No. 18) at 3-19. I find no error and, accordingly, recommend that the decision be affirmed.
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 meets the insured status requirements of the Social Security Act through December 31, 2015, Finding 1, Record at 17; that he had severe impairments of an organic mental disorder/history of attention-deficit hyperactivity disorder, an affective disorder/mood disorder, not otherwise specified, an anxiety-related disorder/anxiety, not otherwise specified, and a personality disorder/borderline personality disorder, Finding 3, id.; that he did not have an impairment or combination of impairments that met or medically equaled the criteria of one of the Listings, Finding 4, id. at 18; that he retained the RFC to perform a full range of work at all exertional levels with the following nonexertional limitations: he could understand and remember simple instructions, execute simple tasks on a consistent schedule to complete a normal workday and workweek, interact with coworkers and supervisors but not with the general public, and adapt to occasional routine changes in the workplace, Finding 5, id. at 20; that, considering his age (34 years old, defined as a younger individual, on his alleged disability onset date, October 15, 2010), education (at least high school), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that he could perform, Findings 7-10, id. at 25; and that he, therefore, was not disabled from October 15, 2010, through the date of the decision, November 2, 2012, Finding 11, id. at 26. 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 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. §§ 404.1520(g), 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).
A. Cancellation of Psychological Expert's Appearance
The plaintiff first contends that the administrative law judge abused his discretion and violated the plaintiff's due process rights when, without prior notice, he canceled the scheduled appearance at hearing of Ira H. Hymoff, Ph.D. See Statement of Errors at 3-6.
The plaintiff acknowledges that this court has held that the decision of whether to call a medical or psychological expert at hearing is within the commissioner's discretion, and the failure to do so does not provide a basis for remand. See id. at 5 (citing Allaire v. Astrue, Civil No. 08-375-P-H, 2009 WL 3336107 (D. Me. Oct. 13, 2009) (rec. dec, aff'd Nov. 10, 2009)). However, the plaintiff distinguishes Allaire on the basis that, here, the administrative law judge made the knowing decision, pursuant to the Social Security Administration, Hearings, Appeals, and Litigation Law Manual (HALLEX), to call Dr. Hymoff, indicating that he considered his assistance necessary, but then canceled his appearance without notice to the plaintiff. See id. at 5-6. He asserts that Dr. Hymoff's assistance was in fact necessary because the administrative law judge improperly assessed raw medical evidence in determining his mental RFC. See id. at 4.
However, as the commissioner notes, see Defendant's Opposition to Plaintiff's Itemized Statement of Errors ("Opposition") (ECF No. 19) at 18, this court rejected a similar argument in Hallock v. Astrue, No. 2:10-cv-374-DBH, 2011 WL 4458978 (D. Me. Sept. 23, 2011) (rec. dec., aff'd Oct. 12, 2011), holding that an administrative law judge did not err in dismissing a medical expert who had been asked to attend the claimant's hearing. See Hallock, 2011 WL 4458978, at *2 ("I begin with bedrock Social Security law: an administrative law judge is never required to consult a medical expert or to allow' him or her to testify. The plaintiff's argument is contrary to existing Social Security law.") (citations omitted). The same is axiomatic here.
Nor did the cancellation of Dr. Hymoff's scheduled appearance without prior notice to the plaintiff offend his due process rights. As the commissioner argues, the plaintiff was not deprived "of an opportunity to be heard at a meaningful time and in a meaningful manner, ' which is the essence of a due process claim." Opposition at 19 (quoting Shorey v. Astrue, No. 1:11-cv-414-JAW, 2012 WL 3475790, at *8 (D. Me. July 13, 2012) (rec. dec., aff'd Aug. 14, 2012)). In any event, even assuming arguendo that the plaintiff's due process rights were violated, his counsel acknowledged at oral argument that he cannot demonstrate any resulting prejudice because he does not know what Dr. Hymoff might have said, if called. As the commissioner notes, this is fatal to a bid for remand on due process grounds. See id. at 18-19; see also, e.g., Lewis v. Astrue, No. 06-121-B-W, 2007 WL 2021912, at *5 (D. Me. July 11, 2007) (rec. dec., aff'd Aug. 15, 2007) (remand is not warranted on basis of a due process violation unless resultant prejudice is shown).
B. Analysis of Listings
The plaintiff next contends that the administrative law judge wrongly determined that his mental impairments did not meet or equal the criteria of applicable Listings when, in the absence of Dr. Hymoff's assistance, he rejected evidence from treating counselor James E. Douglas, LCPC, including a July 24, 2012, mental RFC opinion, that he asserts was sufficient to demonstrate that those criteria were met. See Statement of Errors at 7. As the commissioner rejoins, see Opposition at 7, the administrative law judge explained in detail why he determined that the plaintiff had only a mild restriction in activities of daily living, moderate difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace - levels of impairment that are insufficient to meet the Listings, see Record at 18-19. Yet, the plaintiff fails to challenge any of those details. See Statement of Errors at 7. This is fatal to his bid for remand on this basis. In any event, as explained below, the administrative law judge supportably accorded little weight to Douglas's mental RFC opinion.
C. Failure To Call Vocational Expert
The plaintiff next argues that the administrative law judge denied him the right to a full and fair hearing when he failed to take testimony from a vocational expert who was present for his hearing. See Statement of Errors at 7-8. He contends that he was denied an opportunity to question the vocational expert regarding his vocational history, which he asserts is consistent with a finding of disability because he worked for more than 70 different employers between 1997 and 2010. See id. at 8. He adds that the medical evidence supports a finding that, in any job, he would inevitably be off-task, have more ...