United States District Court, D. Maine
JOHN H. RICH, III, Magistrate Judge.
In this Social Security Disability ("SSD") and Supplemental Security Income ("SSI") appeal, the plaintiff contends that certain limitations in the residual functional capacity ("RFC") assigned to him by the administrative law judge are unsupported by evidence or otherwise improper and that the administrative law judge improperly evaluated a particular medical opinion. I affirm the commissioner's decision.
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 met the insured status requirements of the Social Security Act only through December 31, 2012 for purposes of SSD, Finding 1, Record at 1165; that he suffered from an anxiety-related disorder/anxiety not otherwise specified, an affective disorder/mood disorder, and a personality disorder/personality disorder not otherwise specified, impairments that were severe but which, considered separately or in combination, did not meet or equal the criteria of any impairment listed in Appendix 1 to 20 C.F.R. Part 404, Subpart P (the "Listings"), Findings 3-4, id. at 1165-68; that he retained the RFC to perform work at all exertional levels, except that he could understand and remember only simple instructions, execute simple tasks, interact superficially with coworkers, tolerate minimal supervision, and adapt to occasional routine changes in the workplace and could not interact with the general public, Finding 5, id. at 1170; that he was capable of performing his past relevant work as a bakery helper, stocker, material handler, and flagger, Finding 6, id. at 1175; and that, therefore, the plaintiff had not been under a disability, as that term is defined in the Social Security Act, at any time from the alleged date of onset of disability, May 1, 2007, through the date of the decision, June 28, 2013, Finding 7, id. at 1176. The Appeals Council declined to review the decision, id. at 1151-53, 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 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), 416.920(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), 416.920(f); SSR 82-62, reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.
A. Co-Workers and Supervisors
The plaintiff first contends that the RFC limitations to minimal supervision and superficial interaction with co-workers are supported by no medical opinion and wrongly "split the difference" between opinions of a testifying medical expert and state-agency physicians, entitling him to remand. Itemized Statement of Errors Pursuant to Local Rule 16.3 Submitted by Plaintiff ("Earlier Itemized Statement") (ECF No. 11 in Case No. 2:12-cv-07-DBH, incorporated by reference in Itemized Statement of Errors Pursuant to Local Rule 16.3 Submitted by Plaintiff ("Itemized Statement") (ECF No. 10)) at 2.
Specifically, the plaintiff asserts that the medical expert who testified at his first hearing testified that he had a marked impairment in social functioning and the state-agency reviewing physicians found a moderate impairment, presumably in this area, but the administrative law judge found a "moderate to marked" impairment in social functioning, "indicating that he was reconciling conflicting opinion[s] of the M[edical] E[xpert] and Agency physicians." Id. Because this finding was at a "different level of impairment of social functioning than found by any medical source[, ]" he reasons, the administrative law judge committed reversible error. He cites no authority in support of this conclusion. Id. at 2-3.
The administrative law judge whose decision led to this appeal specifically relied on the testimony from the earlier hearing, as well as the reports of the state-agency physicians. Record at 1172, 1175. The administrative law judge clearly stated that, "in order to resolve a conflict with the medical expert's testimony at the June, 2011, hearing, the undersigned has found moderate to marked limitations in social functioning." Id. at 1175. He also indicated that he did not fully adopt the medical expert's testimony on this point because "many of the conflicts referred to by Dr. Claiborn were subjective reports by the claimant which have not been substantiated by other sources." Id. at 1172.
My research has located no authority directly supporting or rejecting the plaintiff's argument, but this court has accepted, many times, expert opinion that a Social Security claimant had "moderate to marked" limitations in specific areas of mental RFC. See, e.g., Day v. Astrue, No. 1:12-cv-141-DBH, 2012 WL 6913439 at *9 (D. Me. Dec. 30, 2012); Anderson v. Astrue, No. 1:11-cv-476-DBH, 2012 WL 5256294 at *6 (D. Me. Sept. 27, 2012) (rejecting argument that ALJ must explain change from finding moderate to marked limitations in social functioning to finding only moderate such limitations on remand); Donaher v. Barnhart. No. 05-195-B-W, 2006 WL 1454795 at *2 (D. Me. May 23, 2006) (plaintiff's evaluating expert found moderate to marked restrictions of activities of daily living).
Given the long-standing rule that it is an administrative law judge's job to resolve conflicts in the medical evidence, see, e.g., Wilner v. Astrue, No. 2:11-cv-21-GZS, 2012 WL 253512 at *4 (D. Me. Jan. 26, 2012), it cannot be error for an administrative law judge to combine a medical opinion that a claimant is moderately limited in one specific area of functioning with that of another medical source that the claimant is markedly so impaired in a finding that the claimant has a "moderate to marked" limitation in that area. From all that appears, the administrative law judge could have chosen to use only one of the two opinions, rather than melding them, in his Step 3 analysis. That he did not makes no apparent difference for purposes of the Step 4 analysis, upon which the decision rests.
If the plaintiff means only to argue that the RFC limitations to superficial interaction with coworkers, minimal supervision, and no interaction with the general public, Record at 1179, lack supporting medical evidence, the limitation on interaction ...