United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
JOHN H. RICH, III, Magistrate Judge.
This appeal involves child's disability benefits and Supplemental Security Income ("SSI") benefits. The plaintiff contends that the administrative law judge failed to account for the limiting effects of his mental impairments and wrongly relied on Appendix 2 to 20 C.F.R. Part 404, Subpart P (the "Grid") as a framework for decision-making. I recommend that the commissioner's decision be affirmed.
In accordance with 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 suffered from attention deficit hyperactivity disorder and learning disabilities,  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 15-16; that he had the residual functional capacity ("RFC") to perform a full range of work at all exertional levels, with the limitations that he could understand, remember, and carry out simple, repetitive instructions, he must avoid work involving contact with the general public but could interact appropriately with coworkers and supervisors, and he could adapt to routine changes in the work setting, Finding 5, id. at 17; that he had no past relevant work, Finding 6, id. at 19; that, considering that he had at least a high school education, his age (8 on the alleged date of onset, November 19, 2001), and RFC, there were jobs existing in significant numbers in the national economy that the plaintiff could perform, Findings 7-9, id.; and that, therefore, he had not been under a disability, as that term is defined in the Social Security Act, from the alleged date of onset through the date of the decision, August 27, 2013, Finding 10, id. at 20. The Appeals Council declined to review the decision, id. at 5-7, making it 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. Mental Impairments
The plaintiff begins by asserting that the administrative law judge "simply ignored" his Tourette's disorder. Plaintiff's Itemized Statement of Errors ("Itemized Statement") (ECF No. 14) at 4. He adds that the administrative law judge rejected the opinion of his treating physician, Dr. Linda Keniston-Dubocq,  "without good reason for doing so"; wrongly gave some weight to the opinions of the state-agency reviewing physicians; and ignored medical evidence that contradicted her findings. Id. at 4-5.
The defendant concedes that the administrative law judge did not discuss the plaintiff's alleged impairment of Tourette's syndrome, Defendant's Opposition to Plaintiff's Itemized Statement of Errors ("Opposition") (ECF No. 16) at 4, but contends that this was not error, because there is no indication in the record that the plaintiff was ever diagnosed with that ailment, let alone that it caused any specific functional limitation.
The plaintiff asserts that Dr. Keniston-Dubocq assessed him with "significant Tourette'srelated limitations, " citing only pages 713-14 in support. Itemized Statement at 7, 5. Those pages are a two-page document entitled "Medical Source Statement of Ability to Do Work-Related Activities (Mental)." Record at 713-14. On the second page, in response to the heading "Please provide a diagnosis and a brief indication of what medical or clinical findings support this assessment[, ]" Dr. Keniston-Dubocq wrote: "This patient has ADHD and Tourette's syndrome." Id. at 714. This contradicts the defendant's argument, and the subsequent four sentences could reasonably be construed to serve as "a brief indication of... clinical findings that support" the assessment.
However, it is not clear whether the check marks placed on the form by Dr. Keniston-Dubocq are limitations caused by ADHD or Tourette's syndrome, or by a combination of those two impairments. Because the plaintiff has cited no medical evidence of work-related limitations due specifically to his Tourette's syndrome, he cannot establish that the administrative law judge's failure to discuss his Tourette's syndrome is anything other than harmless error. See, e.g., Dowell v. Colvin, No. 2:13-cv-246-JDL, 2014 WL 3784237, at *3 (D. Me. July 31, 2014) (mere diagnosis of an impairment does not establish its severity or the limitations that result for a particular individual).
The plaintiff's next argument is that the administrative law judge rejected the limitations noted on this form by Dr. Keniston-Dubocq "without good reason for doing so." Itemized Statement at 4. He relies specifically on Dr. Keniston-Dubocq's opinion that he had marked limitations in persistence and pace, "as well as [in] his abilities to work effectively with supervisors and co-workers." Id. at 5. Of this form, the administrative law judge said the following:
Little weight is given to Dr. Keniston-Dubocq's opinion that the claimant is markedly limited in numerous areas of work-related functioning, as that assessment is not supported by the longitudinal evidence since September 2011, including her own notes (Exhibit 34F). Furthermore, she is not a specialist in mental health and had only seen the claimant three times prior to completing that assessment. Her reference to a display of angry behavior by the claimant reflects an isolated incident, rather than part of a pattern of inappropriate behavior manifested over the past two years.
Record at 18-19. The plaintiff does not explain why or how this statement of reasons is not "good reason" for rejecting the treating physician's opinion ...