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Tuttle v. Colvin

United States District Court, D. Maine

April 4, 2016

DAVID TUTTLE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDED DECISION [1]

          JOHN H. RICH, III, Magistrate Judge.

         This 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.

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 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. § 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. § 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. § 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. § 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).

         I. Discussion

         A. Finding of Mild Mental Limitations

         With 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.

         Record 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 area:

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).

         The 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.

         As the 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, ...


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