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Swisher v. Colvin

United States District Court, D. Maine

July 2, 2015

RANDY D. SWISHER, JR., Plaintiff,


JOHN C. NIVISON, Magistrate Judge.

Plaintiff Randy D. Swisher, Jr., seeks disability insurance and supplemental security income benefits under the Social Security Act. Defendant Commissioner found that Plaintiff has severe impairments, but retains the functional capacity to perform substantial gainful activity. Defendant, therefore, denied Plaintiff's request for disability benefits. Plaintiff filed this action to obtain judicial review of Defendant's final administrative decision pursuant to 42 U.S.C. § 405(g).

As explained below, following a review of the record, and after consideration of the parties' written and oral arguments, the Court remands the matter for further proceedings.


The Commissioner's final decision is the March 28, 2013, decision of the Administrative Law Judge (ALJ) (ECF No. 9-2).[2] The ALJ's decision tracks the familiar five-step sequential evaluation process for analyzing social security disability claims, 20 C.F.R. §§ 404.1520, 416.920.

The ALJ found that Plaintiff has severe, but non-listing level mental impairments consisting of post-traumatic stress disorder/anxiety disorder, attention deficit hyperactivity disorder, mood disorder, and substance addiction disorder. (ALJ Decision ¶¶ 3, 4.) According to the ALJ, Plaintiff's impairments result in a residual functional capacity (RFC) for physical exertion at all levels and the mental capacity to remember and carry out simple, repetitive instructions, and to persist with work activity at that level of complexity for eight hours each day, five days per week, provided that Plaintiff is not required to work with the general public. ( Id. ¶ 5.) Although Plaintiff's residual functional capacity precludes Plaintiff's past relevant work, based on the Medical-Vocational Guidelines, the ALJ concluded that Plaintiff could still engage in substantial gainful employment in other occupations. ( Id. ¶¶ 6, 10.)


A court must affirm the administrative decision provided the ALJ applied the correct legal standards and provided that the ALJ's decision is supported by substantial evidence, even if the record contains evidence capable of supporting an alternative outcome. Manso-Pizarro v. Sec'y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per curiam); Rodriguez Pagan v. Sec'y of HHS, 819 F.2d 1, 3 (1st Cir. 1987). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a finding. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981). "The ALJ's findings of fact are conclusive when supported by substantial evidence, but they are not conclusive when derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts." Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).


Plaintiff alleges the onset of a disability in August 2008, and argues that the ALJ erred (1) when she rejected opinions and findings of record that would satisfy a listing or, at a minimum, a greater degree of functional limitation than the ALJ found to exist; (2) when she determined that Plaintiff's substance addiction disorder was severe after November 2011; and (3) when she did not give controlling weight to Dr. Skinner's opinions when assessing Plaintiff's RFC.

A. The Listings

Plaintiff argues that the record establishes that his mental impairments meet or equal listings 12.04 (affective disorders) and 12.06 (anxiety related disorders). (Statement of Errors at 10.) Plaintiff thus maintains the he is disabled by rule. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).

Preliminarily, the ALJ's finding that Plaintiff did not meet listing 12.06 (anxiety related disorders) is supported by substantial evidence on the record. In particular, the Maine Disability Determination Services consulting physicians reviewed the record and concluded that, because the paragraph B criteria included only mild-to-moderate mental limitations and given the absence of evidence that would meet the paragraph C criteria, the requirements for listing 12.06 were not satisfied. (Mary Burkhardt, Ph.D., Feb. 1, 2012, Ex. 6A, R. 87 (initial denial); Brian Stahl, Ph.D., June 9, 2012, Ex. 7A, R. 113 (reconsideration level).) Neither consultant, however, mentioned listing 12.04 and neither consultant identified affective disorder as an "impairment diagnosis."

After concluding that the evidence supported a finding that Plaintiff suffered from a severe mood disorder, the ALJ additionally considered, appropriately, listing 12.04. While listing 12.04 has the same paragraph B criteria as listing 12.06, the listing does not have the same paragraph C criteria as listing 12.06. Whereas paragraph C of listing 12.06 requires evidence of a "complete ...

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