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Rose v. Colvin

United States District Court, D. Maine

April 25, 2016

KAREN MARIE ROSE, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

          MEMORANDUM DECISION [1]

          JOHN H. RICH III, Magistrate Judge.

         This Social Security Disability ("SSD") and Supplemental Security Income ("SSI") appeal raises the question of whether the administrative law judge wrongly failed to find that the plaintiff's learning disorder and deficits in intellectual functioning were severe impairments, whether the residual functional capacity ("RFC") that he assigned to the plaintiff was supported by substantial evidence, and whether he wrongly interpreted the remand order from the Appeals Council. 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 through September 30, 2010, Finding 1, Record at 1039; that she suffered from vertigo, tinnitus, asthma, an anxiety-related disorder/generalized anxiety disorder, and an affective disorder/mild to moderate depression, 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 1039-41; that she had the RFC to perform light work with limitations to reaching overhead, balancing, kneeling, stooping, crouching, and crawling occasionally, no climbing of ladders, ropes, or scaffolds, avoiding pulmonary irritants, unprotected height, and irregular terrain, simple instructions, simple tasks, occasional interaction with coworkers and supervisors, infrequent interaction with the general public, and adapting to occasional routine changes in the workplace, Finding 5, id. at 1043; that she was not capable of performing her past relevant work, Finding 6, id. at 1048; and that, given her age (50 years old on the amended alleged onset date), at least high school education, work experience, and RFC, and using the Medical-Vocational Rules of Appendix 2 to 20 C.F.R. Part 404, Subpart P (the "Grid") as a framework for decision-making led to the conclusion that there were jobs existing in significant numbers in the national economy that the plaintiff could perform prior to October 4, 2012, Findings 7-10, id. at 1049; and that, therefore, she had not been disabled, as that term is defined in the Social Security Act, from September 16, 2009, the amended alleged date of onset of disability, through October 3, 2012, the day before the date upon which she was found to be disabled in connection with a subsequent application for SSI benefits, Finding 11, id. at 1050. The Appeals Council declined to review the decision, id. at 1019-21, making the decision 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 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 her past relevant work. 20 C.F.R. §§ 404.1520(g), 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).

         The statement of errors also implicates Step 2 of the sequential evaluation process. Although a claimant bears the burden of proof at Step 2, it is a de minimis burden, designed to do no more than screen out groundless claims. McDonald v. Secretary of Health & Human Servs., 795 F.2d 1118, 1124 (1st Cir. 1986). When a claimant produces evidence of an impairment, the commissioner may make a determination of non-disability at Step 2 only when the medical evidence "establishes only a slight abnormality or [a] combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work even if the individual's age, education, or work experience were specifically considered." Id. (quoting Social Security Ruling 85-28).

         I. Discussion

         A. Step 2 Issues

         The plaintiff contends that the administrative law judge should have found her learning disability and deficits in intellectual functioning to be severe impairments. Statement of Specific Errors ("Itemized Statement") (ECF No. 16) at 4. Specifically, she asserts that the administrative law judge failed to explain the weight he assigned to the opinion of Debora Elliott Ward, Ph.D., which she contends required the administrative law judge to find that she suffered from "a severe impairment attributable to [her] working memory deficits." Id. at 7. She faults the administrative law judge's decision to credit the testimony at the hearing of Dr. Charles O. Tingley, Jr., a psychological expert. Id. at 9-11. She does not explain how her extensive discussion of working memory deficits demonstrates the existence of a severe impairment of a learning disability and/or intellectual functioning that is somehow deficient in a manner that had a more than minimal effect on her ability to work.

         The administrative law judge's opinion provided the following discussion relevant to the plaintiff's argument:

The claimant has been reported to have a learning disability (Exhibits 7F, 9F, 22F, 27F, 29F, 30F, 31F, 34F, 39F, and 43F). Although she has indicated on a few occasions that she received special education services while in school (Exhibits 30F[] and 49F), no school records whatsoever have been submitted into evidence.
On January 17, 2013, James Werrbach, Ph.D., diagnosed the claimant with borderline intellectual functioning based on intelligence testing at that time which yielded a full scale I.Q. score of 70 with a verbal comprehension index score of 78, perceptual reasoning index score of 77, processing speed index score of 65, and working memory index score of 74 (Exhibit 49F). However, these scores appear to represent a recent decline in the claimant's intellectual functioning, as the test was administered only a few weeks after the claimant had completed electroconvulsive [treatment] (Exhibits 43F, 44F, and 45F), and testing prior to October, 2012, had yielded somewhat higher scores (Exhibit 30F). When tested in August, 2011, the claimant had a low average full scale I.Q. score of 80 with a verbal comprehension index score of 89, perceptual reasoning index score of 81, processing speed index score of 94, and working memory index score of 71 (Exhibit 30F). Based on those scores, Debra Elliott Ward, Ph.D., diagnosed... the claimant with a likely learning disorder in the area of arithmetic (Exhibit 30F). The August, 2011, scores appear to [be] more consistent with the claimant's intellectual functioning prior to October, 2012, as the evidence shows that the claimant was able to graduate from high school in 1977, managed a household for many years, and obtain[ed] a driver's license. It should also be noted that the claimant has a long history of semi-skilled past relevant work as a support specialist, childcare worker, file clerk, and receptionist.

         Record at 1040-41.

         In this regard, the administrative law judge also referred to Dr. ...


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