United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
H. RICH, III, Magistrate Judge.
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 basis that the administrative
law judge erred in finding that he had only a mild limitation
in intellectual functioning and no limitations in the use of
his hands. See Itemized Statement of Specific Errors
("Statement of Errors") (ECF No. 15) at 5-7. I find
no error and, accordingly, recommend that the court affirm
the commissioner's decision.
to the commissioner's sequential evaluation process, 20
C.F.R. Â§ 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 had severe impairments of chronic obstructive
pulmonary disease ("COPD") and degenerative disc
disease of the cervical and lumbar spine, Finding 2, Record
at 17; that he had the residual functional capacity
("RFC") to perform light work as defined in 20
C.F.R. Â§ 416.967(b), except that due to musculoskeletal and
respiratory impairments, he might change from sitting to
standing or standing to sitting for five minutes each hour,
could frequently balance, kneel, or crawl, could occasionally
climb, stoop, or crouch, could frequently work overhead
bilaterally, needed to avoid temperature extremes, humidity,
and pulmonary irritants, and needed to avoid unprotected
heights and irregular terrain, Finding 4, id. at 20;
that, considering his age (44 years old, defined as a younger
individual, on July 25, 2012, the date his application was
filed, education (limited), work experience (transferability
of skills immaterial), and RFC, there were jobs existing in
significant numbers in the national economy that he could
perform, Findings 6-9, id. at 23; and that he,
therefore, had not been disabled since July 25, 2012, the
date his application was filed, Finding 10, id. at
24. The Appeals Council declined to review the decision,
id. at 1-4, making the decision the final
determination of the commissioner, 20 C.F.R. Â§ 416.1481;
Dupuis v. Secretary of Health & Human Servs., 869
F.2d 622, 623 (1st Cir. 1989).
standard of review of the commissioner's decision is
whether the determination made is supported by substantial
evidence. 42 U.S.C. Â§ 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).
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. Â§ 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).
Finding of Mild Mental Limitations
respect to the plaintiff's mental functioning, the
administrative law judge found:
The [plaintiff's] medically determinable mental
impairment of personality disorder/antisocial personality
disorder, diagnosed by consulting examiner Donna Gates, Ph.D.
(Dr. Gates) does not cause more than minimal limitation in
[his] ability to perform basic mental work activities and is
therefore nonsevere. The undersigned concurs with Dr.
Gates' summary opinion that the [plaintiff] has no
clinically significant mental health limitations' and
with similar findings by State agency psychological
consultants who assessed no severe mental health conditions.
at 18 (citations omitted). The administrative law judge found
that the plaintiff had only mild limitations in activities of
daily living, social functioning, and concentration,
persistence, or pace, explaining, as to the latter functional
Despite [the plaintiff's] testimony that he can barely
read', does not understand what he reads and has a bad
memory, the record does not bear this out. For instance, the
record shows the [plaintiff] has applied for disability 9
times, and so has a demonstrated ability to complete the
various documents required as part of the disability
application process. In addition, Dr. Gates cited the
[plaintiff] as alert, and noted no memory deficits, only
offering a probable borderline intellectual function based on
presentation and the [plaintiff's] limited education at a
consultative examination. Function reports also show the
[plaintiff] can count change, pay bills, manage a bank
account and he follows written instructions well.
Id. at 19 (citations omitted).
plaintiff complains that the administrative law judge
assessed only a mild limitation in his intellectual
functioning based on his ability to complete disability
application paperwork, despite Dr. Gates' assessment of
probable borderline intellectual functioning and the
plaintiff's testimony that he left high school in ninth
grade to work in the woods and could barely read.
See Statement of Errors at 6. He asserts that the
finding that he completed disability paperwork is completely
unsupported by the record, in that his initial application
was taken orally by an employee of the commissioner, his
function and work history reports were completed for him by a
friend, and his reconsideration and hearing requests were
filed by an appointed representative. See id. at
6-7. He asserts that the error was not harmless because the
assessment of the omitted mental limitations would have ruled
out the representative jobs identified by the vocational
expert. See id. at 7.
commissioner rejoins, see Defendant's Opposition
to Plaintiff's Statement of Errors
("Opposition") (ECF No. 16) at 3, the
administrative law judge never made a finding that the
plaintiff had only a mild limitation in intellectual
functioning. Rather, he found that the plaintiff had only a
mild limitation in concentration, persistence, ...