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Ball v. Colvin

United States District Court, D. Maine

January 31, 2015

JEANNE KATHRYN BALL, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

REPORT AND RECOMMENDED DECISION [1]

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 seeks remand on the bases that the administrative law judge impermissibly "cherry-picked" the record, undermining several key determinations, and failed to adequately consider, or provide valid reasons for discrediting, the opinion of a treating psychiatrist, William M. Sullivan, M.D. See Itemized Statement of Errors Pursuant to Local Rule 16.3 Submitted by Plaintiff ("Statement of Errors") (ECF No. 13) at 1-20. I find no reversible error and, accordingly, recommend that the court affirm the commissioner's decision.[2]

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, 2001, Finding 1, Record at 13; that she had severe impairments of affective disorder/mood disorder, anxiety-related disorder/anxiety disorder not otherwise specified, and personality disorder not otherwise specified, Finding 3, id.; that she did not have an impairment or combination of impairments that met or medically equaled the severity of any impairment listed in Appendix 1 to 20 C.F.R. Part 404, Subpart P (the "Listings"), Finding 4, id. at 14; that she had the residual functional capacity ("RFC") to perform a full range of work at all exertional levels but with the following nonexertional limitations: she could understand, remember, and carry out simple instructions or execute simple tasks on a consistent schedule to complete a workday and workweek, could interact with co-workers and supervisors but not the general public, and could adapt to only occasional changes in the workplace, Finding 5, id. at 15; that, considering her age (47 years old, defined as a younger individual, on her alleged disability onset date, December 1, 2000), 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 she could perform, Findings 7-10, id. at 20; and that she, therefore, had not been disabled from December 1, 2000, through the date of the decision, October 25, 2012, Finding 11, id. at 21. 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 her 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).

The statement of errors also implicates Steps 3 and 4 of the sequential evaluation process. At Step 3, a claimant bears the burden of proving that her impairment or combination of impairments meets or equals a listing. 20 C.F.R. §§ 404.1520(d), 416.920(d); Dudley v. Secretary of Health & Human Servs., 816 F.2d 792, 793 (1st Cir. 1987). To meet a listing, the claimant's impairment(s) must satisfy all criteria of that listing, including required objective medical findings. 20 C.F.R. §§ 404.1525(c)(3), 416.925(c)(3). To equal a listing, the claimant's impairment(s) must be "at least equal in severity and duration to the criteria of any listed impairment." 20 C.F.R. §§ 404.1526(a), 416.926(a).

At Step 4, 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, 482 U.S. at 146 n.5. 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.

I. Discussion

The plaintiff contends that, in addition to rejecting invalidly the opinion of Dr. Sullivan, the administrative law judge cherry-picked the record - that is, ignored and selectively extracted evidence - to such an extent that it undermined his conclusions that her mental impairments did not meet or equal the criteria of any of the Listings, her allegations were not fully credible, and she retained the RFC to perform work existing in significant numbers in the national economy. See Statement of Errors at 1-20. I have grouped these arguments under two headings, one pertaining to the administrative law judge's Step 3, or Listings, determination, and the other to his Step 4 mental RFC determination.

A. Listings Determination

The administrative law judge found that the plaintiff's mental impairments did not meet or equal the criteria of Listings 12.04, 12.06, or 12.08, stating that, in making that finding, he had considered whether the so-called "Paragraph B" criteria were satisfied. See Record at 14.[3] To satisfy those criteria, a claimant must show that her mental impairments result in at least two of the following: marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration. Id .; see also Listings 12.04(B), 12.06(B), 12.08(B). Episodes of decompensation are "repeated" and of "extended duration" if there have been three episodes within one year, or an average of once every four months, each lasting for at least two weeks. See Record at 14; Listing 12.00(C)(4). The administrative law judge explained:

In activities of daily living, the [plaintiff] has mild restriction. In her Function Report, [she] noted that she is able to prepare simple meals for herself, shops in stores, and occasionally drive (Exhibit 7E). During the period in question, [she] has worked, travelled, taken classes, emailed, volunteered, and participated regularly in her church community (Exhibit 13F, 11F, 9F, 8F). She testified that she lives alone.
In social functioning, the [plaintiff] has moderate difficulties. In her Function Report, [she] noted spending time with others (Exhibit 7E). The record shows that [she] spends time with her daughter as well as with some friends. During the period in question, [she] was active in her church community and taught Sunday school. She has been described as engageable, attentive, cooperative and forthcoming (Exhibit 4F). However, she has struggled with boundary issues in the work setting (Exhibit 7E).
With regard to concentration, persistence or pace, the [plaintiff] has moderate difficulties. [She] has alleged problems with concentration. However, mental status examinations typically reveal intact memory and linear thought process (Exhibit 11F/2).
As for episodes of decompensation, the [plaintiff] has experienced one to two episodes of decompensation, each of extended duration. [She] was hospitalized for suicidal ideation in 2000 and for severe depression in 2010. However, this level of depression i[s] episodic and not reflective of [her] day to day functioning, as evidenced by treatment notes throughout the record.

Record at 14.

The plaintiff challenges the administrative law judge's reasoning with respect to three of the four categories (all but that pertaining to episodes of decompensation) as either unsupported by the citations given or based on misleading, selective citation to the record. See Statement of Errors at 4-8. She asserts, "A fair reading of the ALJ's [administrative law judge's] findings makes clear that he has perverted the actual meaning of so many of the [plaintiff's] statements that a reasonable person cannot consider his step three findings supportable." Id. at 5.

She contends that the administrative law judge relied solely on the above-quoted paragraphs in reaching his Step 3 determination, given that he neither adopted nor referred to the psychiatric review technique forms ("PRTFs") of two agency nonexamining consultants, Brian Stahl, Ph.D., and Lewis F. Lester, Ph.D. See id. at 5 & n.3. She reasons that, because the only other PRTF of record is that of Dr. Sullivan, who found marked limitations in the three categories at issue, remand with instructions to award benefits is warranted if the court agrees that the Step 3 determination is unsupported by the citations given. See id. at 8. She argues that, in any event, the administrative law judge improperly rejected the Sullivan opinion. See id. at 12-18.

1. Reliance on Dr. Lester's PRTF

The plaintiff's argument is premised on the faulty foundation that the administrative law judge's Step 3 finding was unsupported by any expert opinion. As the commissioner observes, see Defendant's Opposition to Plaintiff's Itemized Statement of Errors ("Opposition") (ECF No. 16) at 10, the administrative law judge expressly relied on Dr. Lester's PRTF, see Record at 19 (according "great weight" to Dr. Lester's opinion that the plaintiff would have mild restriction of activities of daily living, moderate restriction in maintaining social functioning, moderate difficulties with concentration, persistence, or pace, and no episodes of decompensation "as it is based on a review of the record and is consistent with the objective findings[, ]" but stating that "the medical evidence of record reveals two episodes of decompensation during the period under adjudication"); see also id. at 92-94 (Lester PRTF).

As the plaintiff acknowledges, see Statement of Errors at 3, this court has held that an administrative law judge may not only pick and choose among different experts' opinions but also adopt only a portion of an expert's opinion, see, e.g., Hicks v. Astrue, Civil No. 09-393-P-S, 2010 WL 2605671, at *4 (D. Me. June 23, 2010) (rec. dec., aff'd July 15, 2010) ("[T]he plaintiff characterizes the administrative law judge's choice of medical evidence on which to rely as cherry pick[ing], ' but that is precisely the role of the administrative law judge. He need not adopt all of any particular provider's report, if he states his reasons for adopting only a portion of it."); Howard v. Astrue, No. 06-96-B-W, 2007 WL 951389, at *5 (D. Me. Mar. 27, 2007) (rec. dec., aff'd Apr. 16, 2007) ("In this circuit, picking and choosing among experts' opinions does not in itself constitute error."). While the plaintiff is critical of that holding, ...


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