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Poulin v. Colvin

United States District Court, D. Maine

December 28, 2015

MICHAEL HENRY POULIN, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

MEMORANDUM DECISION [1]

John H. Rich III United States Magistrate Judge

This Social Security Disability (“SSD”) appeal challenges the administrative law judge’s treatment of the opinion of a treating medical professional. I affirm the commissioner’s decision.

In accordance with the commissioner’s sequential evaluation process, 20 C.F.R. § 404.1520; 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, 2014 (the “date last insured”), Finding 1, Record at 14; that, before the date last insured, he suffered from depression, anxiety, and posttraumatic stress disorder (“PTSD”), 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, id. at 15; that, before the date last insured, he had the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels, except that he could understand and remember simple instructions, could execute simple tasks on a consistent schedule, could interact with coworkers and supervisors, but not the general public, and could adapt to occasional, routine changes in the workplace, Finding 5, id. at 16; that he was unable to perform any past relevant work, Finding 6, id. at 20; that, considering his age (54 years old on his amended alleged disability onset date (April 6, 2010)), [2]education (at least high school), work experience, and RFC, and using the Medical-Vocational Rules in Appendix 2 to 20 C.F.R. Part 404, Subpart P (the “Grid”) as a framework for decision-making, there were jobs existing in significant numbers in the national economy before his date last insured that he could perform, Findings 7-10, id. at 20-21; and that he, therefore, had not been disabled from April 6, 2010, through the date of the decision, July 26, 2013, Finding 11, id. at 22. 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; 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); 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); 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).

I. Discussion

The plaintiff contends that the administrative law judge should have given controlling weight to the opinions of Luke Ballenger, M.D., the plaintiff’s treating psychiatrist, including his opinion that the plaintiff “could not work.” Plaintiff’s Statement of Errors (“Itemized Statement”) (ECF No. 13) at 3-5. The administrative law judge said the following about Dr. Ballenger’s opinions:

. . . Dr. Luke Ballenger opined in March 2012 that the claimant could not work (Ex. 15F, pg. 1). Dr. Ballenger also opined in June 2013 that the claimant had marked limitations in his ability to remember locations and procedures, understand and remember detailed instructions, carry out detailed instructions, maintain attention and concentration for extended periods, perform activities within a schedule, maintain regular attendance and punctuality, work in coordination with or proximity to others without distraction, complete a normal workday or workweek without interruption, accept instructions, respond to criticism[, ] get along with coworkers without distracting them, and respond appropriately to changes in the work setting (Ex. 21F, pgs. 1-2). The undersigned grants little weight to both opinions from Dr. Ballenger. First, Dr. Ballenger does not specifically address what the claimant can or cannot do. Second, these opinions are not supported by the longitudinal medical record, which indicates that the claimant retained normal speech, behavior, thought, memory, concentration, judgment, and insight throughout the period at issue. Finally, the issue of whether an individual is “disabled” or “unable to work” under the Social Security Act and Regulations is one that is exclusivity reserved to the Commissioner (Social Security Ruling 96-5p). Because of these reasons, Dr. Ballenger’s opinions are given little weight.

Record at 19.

To begin, this court has frequently held that the question of whether a claimant is “able to work, ” “employable, ” or “disabled” is reserved to the commissioner under 20 C.F.R. § 404.1527(d)(1), and, therefore, the decision of the administrative law judge to give Dr. Ballenger’s opinion to that effect little weight cannot be error. E.g., Anderson v. Astrue, No. 1:11-cv-476-DBH, 2012 WL 5256294, at *7 (D. Me. Sept. 27, 2012).

Next, it is incorrect to suggest, as the plaintiff does, that the administrative law judge said that “there is no evidence in the longitudinal medical record to support Dr. Ballenger’s findings[.]” Itemized Statement at 4. The administrative law judge said only that Dr. Ballenger’s opinions were not supported by the longitudinal medical record. Record at 19. So long as there is substantial evidence in the record to support the administrative law judge’s conclusion, it is his or her role to weigh any conflicting evidence before reaching a conclusion about the weight to assign to a given medical professional’s opinion. See, e.g., Ball v. Social Sec. Admin. Comm’r, No. 2:14-cv-61-JDL, 2015 WL 893008, at *4 (D. Me. Mar. 2, 2015) (“[T]his court has held that an administrative law judge may not only pick and choose among different expert’s opinions but also adopt only a portion of an expert’s opinion[.]”); Gagnon v. Colvin, No. 2:13-cv-00213-NT, 2014 WL 3530629, at *4 (D. Me. July 15, 2014) (“The issue before the court is whether substantial evidence supports the administrative law judge’s conclusions, not whether another person who reviewed the same evidence might come to different conclusions.”).

The plaintiff recites evidence that he believes supports Dr. Ballenger’s conclusions, Itemized Statement at 3-6, but there is also evidence that is inconsistent with those conclusions, making it impossible to assign Dr. Ballenger’s conclusions controlling weight. 20 C.F.R. § 404.1527(c)(2). That evidence includes the opinions of two state-agency reviewing psychologists, cited by the administrative law judge, Record at 19, 486, 517, and the opinions of two other state-agency psychologists. Id. at 87-88, 98-99.

I note as well that some of the limitations included in the plaintiff’s RFC by the administrative law judge are not inconsistent with those submitted by Dr. Ballenger. Dr. Ballenger said that the plaintiff was “moderately limited” in his ability to understand and remember simple instructions and “markedly limited” in his ability to understand and remember detailed instructions, id. at 711, and the RFC includes a limitation to understanding and remembering simple instructions, id. at 16. Dr. Ballenger said that the plaintiff was only moderately limited in his ability to interact appropriately with the general public, id. at 712, while the RFC bars interaction with the general public, id. at 16.

Also notable is the fact that Dr. Ballenger does not provide any narrative or citation to any medical records on the mental RFC form that he filled out, despite the directive on the form to do so. Id. at 713. See Swift v. Astrue, Civil ...


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