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Guest v. Berryhill

United States District Court, D. Maine

June 2, 2017

CLAIR PARKHILL GUEST, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant

          MEMORANDUM DECISION [2]

          John H. Rich III United States Magistrate Judge.

This Social Security Disability (“SSD”) and 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 bases that the administrative law judge (i) failed to find that her mental impairments met or equaled the criteria of sections 12.02, 12.04, or 12.06 of Appendix 1 to 20 C.F.R. Part 404, Subpart P (the “Listings”), then (ii) made a flawed determination of her mental residual functional capacity (“RFC”), which (iii) undermined the relevance of the vocational expert testimony on which he relied to find her capable of working. See Plaintiff's Statement of Errors in Support of a Social Security Appeal (“Statement of Errors”) (ECF No. 12) at 11-19.[3] These arguments prove unpersuasive, and, accordingly, I affirm the commissioner's decision.

         Pursuant to 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 December 31, 2017, Finding 1, Record at 1048; that she had the severe impairments of fibromyalgia syndrome, an organic mental disorder/attention deficit hyperactivity disorder (“ADHD”), an affective disorder/mood disorder, and an anxiety-related disorder/anxiety, Finding 3, id. at 1049; that she had no impairment or combination of impairments that met or medically equaled the severity of one of the Listings, Finding 4, id. at 1050; that she retained the RFC to perform light work with some physical restrictions not relevant for purposes of this decision and could understand and remember simple instructions, accomplish simple tasks on a consistent schedule to complete a workday/workweek, interact appropriately with coworkers and supervisors but not the general public, and adapt to occasional routine changes in the workplace, Finding 5, id. at 1051; that, considering her age (23 years old, defined as a younger individual, on her alleged disability onset date, February 28, 2012), education (at least high school), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that she could perform, Findings 7-10, id. at 1056; and that she, therefore, had not been disabled from February 28, 2012, through the date of the decision, January 13, 2015, Finding 11, id. at 1057-58. The Appeals Council declined to review the decision, id. at 1037-40, 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 3 of the sequential evaluation process, at which step a claimant bears the burden of proving that her impairment or combination of impairments meets or equals a listing. 20 C.F.R. §§ 404.1520(d), 416.920(d); Dudley v. Secretary of Health & Human Servs., 816 F.2d 792, 793 (1st Cir. 1987). To meet a listing, the claimant's impairment(s) must satisfy all criteria of that listing, including required objective medical findings. 20 C.F.R. §§ 404.1525(c)(3), 416.925(c)(3). To equal a listing, the claimant's impairment(s) must be “at least equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R. §§ 404.1526(a), 416.926(a).

         I. Discussion

         A. Listings Determination

         The plaintiff first challenges the administrative law judge's finding that she had only moderate restrictions in activities of daily living, social functioning, and concentration, persistence, or pace, as a result of which her mental impairments neither met nor equaled the criteria of Listings 12.02, 12.04, or 12.06. See Statement of Errors at 11-12; Record at 1050-51.

         To meet so-called “paragraph B” of those Listings, a claimant must demonstrate marked limitation in at least two of those three areas of functioning, or marked limitation in at least one of those areas together with repeated episodes of decompensation, each of extended duration. See Listings 12.02(B), 12.04(B), 12.06(B). The plaintiff contends that she should have been found to have marked, rather than moderate, restrictions in each of the three areas of functioning. See Statement of Errors at 12.

         The administrative law judge explained that:

1. He found a moderate level of restriction in activities of daily living because the evidence indicated that (i) the plaintiff was “capable of performing a wide range of activities of daily living including caring for her personal needs and hygiene, cooking, cleaning, doing laundry, shopping, managing money, paying bills, and driving an automobile[, ]” (ii) she cared for her two young children “without apparent difficulties, ” for example, getting her son ready for school, helping him with his homework, and playing games with her children, (iii) she read, watched television and movies, and went on walks two to three days a week, and (iv) she “told examiners on August 9, 2013, that she had recently gone on vacation to visit her father.” Record at 1050 (citations omitted).
2. He found a moderate level of restriction in social functioning given that the plaintiff was able to shop in stores, care for her two children, interact with her fiancé and children on a regular basis, visit her mother three to four times a week, and maintain some friendships. See id. at 1050-51. In addition, “[t]he evidence fail[ed] to demonstrate that the [plaintiff] has had significant difficulties interacting with treatment providers, and none of the individuals who have treated or examined her have described [her] as socially inappropriate.” Id. at 1051.
3. He found a moderate level of restriction in concentration, persistence, or pace since the plaintiff was able to complete the activities of daily living he had described, and “some examiners have found [her] memory to be either intact, good, or normal, and her attention and concentration to be normal.” Id. (citations omitted).

         The plaintiff asserts that the record “contradicts” this analysis. Statement of Errors at 11. She points to:

1. Her reports to a treating provider, Sarah Swenson, LCSW, that she felt “overwhelmed at times with childcare responsibilities[, ]” Statement of Errors at 11; Record at 769, 774;
2. Responses to a Mental Impairment Questionnaire by treating provider Jean M. Dowling, PMHNP, dated October 17, 2013, indicating that she had marked difficulties in social functioning and concentration, persistence, or pace, and marked episodes of deterioration or decompensation in work or work-like settings, see Statement of Errors at 11; Record at 881;
3. A letter from treating provider Nicole Betts, LMSW-cc, dated May 30, 2014, indicating that she had ongoing challenges with interpersonal relationships, ability to implement adaptive coping mechanisms, and ability to engage in consistent, daily routines, see Statement of Errors at 11; Record at 970;
4. Her testimony at her November 12, 2014, hearing that the Lamictal she took for bipolar disorder provided no relief, she received help from neighbors and others to care for her children, she avoided grocery shopping if possible, she had difficulty with memory and concentration, lost her train of thought easily, fidgeted, and tended to be distracted and unable to focus on what she was saying or doing if there was noise outside, and she had difficulty following television programs, see Statement of Errors at 11-12; Record at 20-23; and
5. Her mother's testimony at hearing that she gets angry and overwhelmed, they often leave the store with nothing because she cannot make it through a shopping trip, and it is very difficult for her to be in public, see Statement of Errors at 12; Record at 30-31.

         As the commissioner suggests, see Defendant's Opposition to Plaintiff's Itemized Statement of Errors (“Opposition”) (ECF No. 15) at 6, while the plaintiff identifies evidence that she believes tilts in favor of a finding of more limited functioning, that in itself is not enough to warrant remand where an administrative law judge has identified evidence indicating otherwise, see, e.g., Huff v. Colvin, No. 2:13-cv-378-JDL, 2014 WL 5473036, at *5 n.3 (D. Me. Oct. 27, 2014) (even when a claimant's and an administrative law judge's characterizations of the evidence are “equally reasonable, ” the commissioner must prevail).

         That is the case here. Substantial evidence supports the administrative law judge's finding of moderate restrictions, most notably the opinions of two agency nonexamining consultants, Thomas Knox, Ph.D., dated February 18, 2013, and JoAnne Coyle, Ph.D., dated August 8, 2013, to which the administrative law judge afforded great weight. See Record at 43-48, 72-77, 1055-56. Drs. Knox and Coyle directly addressed the question of whether the plaintiff's impairments met or equaled Listings 12.04 and 12.06, and Dr. Coyle addressed whether they met or equaled Listing 12.02. See id. at 44, 73. They concluded that they did not. See id.[4]

         Further, as the commissioner notes, see Opposition at 3, elsewhere in his decision, the administrative law judge pointed out that the plaintiff frequently was noted on mental status examinations to be alert and oriented with a linear and logical thought process, cooperative, with no evidence of a thought disorder, obsessions, phobias, mania, delusions, impaired judgment, auditory or visual hallucinations, or ongoing suicidal or homicidal ideations, see Record at 1053; see also, e.g., id. at 394, 400, 403, 406, 408, 411, 413, 424, 541, 717, 750, 931, 935, and that, notwithstanding her allegations of memory loss, her memory was described as intact in all spheres on multiple occasions, see id. at 1053; see also, e.g., id. at 394, 750, 754, 938, 946. “[N]ormal mental status examinations reasonably may be viewed as inconsistent with marked limitations[.]” Ball v. Social Sec. Admin. Comm'r, No. 2:14-cv-61-JDL, 2015 WL 893008, at *7 (D. Me. Mar. 2, 2015).

         Finally, the administrative law judge addressed and discounted much of the contrary evidence to which the plaintiff points. To the extent that she relies on her own allegations and testimony, the administrative law judge deemed her not to be entirely credible, see Record at 1052, and she has not challenged that finding on appeal, see generally Statement of Errors. To the extent that she relies on her mother's testimony and the Dowling opinion, the administrative law judge supportably discounted them for the reasons discussed below. To the extent that she relies on the ...


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