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Ireland v. Berryhill

United States District Court, D. Maine

June 25, 2017

AMANDA L. IRELAND, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant

          REPORT AND RECOMMENDED DECISION [2]

          John H. Rich III United States Magistrate Judge

          This Child's Disability Benefit (“CDB”) 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 (“ALJ”) erred in failing to (i) find that she had a severe impairment of panic disorder with agoraphobia, (ii) evaluate whether her impairments met or equaled the criteria of Listing 12.05, Appendix 1 to Subpart P, 20 C.F.R. § 404 (the “Listings”), or (iii) formulate a residual functional capacity (“RFC”) supported by substantial evidence. See Statement of Specific Errors (“Statement of Errors”) (ECF No. 13) at 1-11. I find no reversible error and, accordingly, recommend that the court 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 ALJ found, in relevant part, that the plaintiff had not yet attained age 22 as of June 1, 2010, her alleged onset date of disability, and had not engaged in substantial gainful activity since that date, Findings 1-2, Record at 12; that she had a severe impairment of borderline intellectual functioning, Finding 3, id. at 13; that she did not have an impairment or combination of impairments that met or medically equaled the criteria of any of the Listings, Finding 4, id.; that she had the RFC to perform a full range of work at all exertional levels, but with the following nonexertional limitations: simple jobs with simple instructions and limited changes, and the performance of only limited reading or arithmetic, Finding 5, id. at 14; that, considering her age (20 years old, defined as a younger individual, on her alleged disability onset date, June 1, 2010), 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 17; and that she, therefore, had not been disabled from June 1, 2010, through the date of the decision, May 22, 2015, Finding 11, id. at 18-19. 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, 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 ALJ 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 Steps 2, 3, and 4 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).

         At Step 3, 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).

         At Step 4 of the sequential evaluation process, the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f); Bowen, 482 U.S. at 146 n.5. At this step, the commissioner must make findings of the plaintiff's RFC and the physical and mental demands of past work and determine whether the plaintiff's RFC would permit performance of that work. 20 C.F.R. §§ 404.1520(f), 416.920(f); Social Security Ruling 82-62 (“SSR 82-62”), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.

         I. Discussion

         A. Failure To Find Severe Impairment of Panic Disorder with Agoraphobia

         The plaintiff first argues that the ALJ erred at Step 2 in failing to consider whether she had a severe impairment of panic disorder with agoraphobia. See Statement of Errors at 1-5. She contends that the finding of no such severe impairment was inconsistent with the ALJ's Step 3 determination that she had moderate limitations in social functioning, which in turn was inconsistent with her Step 4 omission of any social functioning restrictions from the plaintiff's RFC. See Id. I find no error.

         As the plaintiff acknowledges, see id. at 1-2, while the ALJ did not address whether she had a severe panic or social anxiety disorder at Step 2, she did so elsewhere in her decision, discussing both the alleged social anxiety and the expert opinion evidence of record bearing on it, see Record at 16.[3] That evidence consisted of two opinions furnished in connection with a prior disability application - a report of an October 18, 2011, psychological evaluation by agency examining consultant David W. Booth, Ph.D., and an October 26, 2011, opinion of agency nonexamining consultant Brian Stahl, Ph.D., see id. at 72-77, 371-74 - and two opinions furnished in connection with the disability application at issue - a November 9, 2012, opinion of Dr. Stahl, and a December 4, 2013, opinion of agency nonexamining consultant John J. Warren, Ed.D, see id. at 92-96, 114-18.

         Based on his review of a two-page medical record dated March 15, 2011, a mental status examination, an interview of the plaintiff, and administration of the Wechsler Adult Intelligence Scale - Fourth Edition (“WAIS-IV”), Dr. Booth diagnosed the plaintiff with panic disorder with agoraphobia and mild mental retardation. See id. at 371-74. He noted that the 2011 medical record indicated that the plaintiff “was experiencing symptoms of anxiety[, ]” that, on mental status examination, her “affect was anxious[, ]” and that, although she initially denied that she had any medical problems when questioned, she stated on further questioning:

[S]he feels uncomfortable when she is around a number of other people. For instance, she said that if she goes to the mall, she goes in the morning, when there are fewer people present. She said she feels especially uncomfortable if a store is crowded, and she tries to get out as soon as possible.

Id. at 371-72.

         Summarizing the results of his evaluation, Dr. Booth stated, in relevant part, that “[p]roblems with anxiety are present, which include panic attacks[, ]” and that the plaintiff “likely would have difficulty responding to other people in a comfortable and appropriate way, where it would be expected that anxiety would impact on her functioning.” Id. at 373-74.

         In his 2011 opinion, Dr. Stahl found, in relevant part, that the medical evidence supported diagnoses of cognitive disorder and anxiety, which were severe but did not meet or equal a listing, and that the plaintiff had moderate limitations in maintaining social functioning; specifically, that she was “not able to work with the public but can work with coworkers and supervisors.” Id. at 74, 76. He explained, “She gets along with others and authority. She was polite and cooperative with the field office.” Id. at 76.

         In his 2012 opinion, Dr. Stahl found that the medical evidence supported only one diagnosis, a cognitive disorder that was severe but did not meet or equal a listing. See id. at 93. Dr. Stahl noted that he had reviewed two records dated March 7, 2012, and May 7, 2012, both of which indicated that the plaintiff had neither anxiety nor depression. See id. at 92, 378-81.[4]

         Dr. Stahl explained that he found no medically determinable anxiety impairment because the plaintiff “did not specify allegations of mental health limitations[, ]” id. at 94 - an apparent reference to his notation that she had alleged auditory processing problems, a learning disability, and a cognitive impairment, see id. at 92. He again assessed, inter alia, moderate limitations in social functioning, see id. at 93, which he translated into an ability “to work with coworkers and supervisors but not with the public[, ]” id. at 96. He explained, “She gets along with healthcare providers.” Id.

         Dr. Warren also found that the plaintiff had only one severe medically determinable impairment, an organic mental disorder. See id. at 115. He explained: “Among the somatic record, anxiety is mentioned, but this appears to have been related to a situation specific experience rather than a general psychopathological condition.” Id. at 114. Like Dr. Stahl, he assessed, inter alia, moderate limitations in social functioning, see id. at 93, which he translated into an ability “to sustain the basic demands associated with relating adequately with supervisors/co-workers” but an inability “to interact appropriately with the general public[, ]” id. at 117.

         The ALJ found:

In terms of her allegations of social anxiety, the only mention of this as a problem was in the consultative examination by Dr. Booth and the DDS [Disability Determination Services] reports relying on that evaluation. This appears to be based only on the [plaintiff's] complaints that she feels uncomfortable around groups of people. Despite her allegations, she has never been treated for a psychiatric impairment, takes no medication for same, had no apparent issues in high school with social interactions, has been determined to be shy but cooperative in evaluations and manages to [go] out with her family and friends without apparent difficulty. The undersigned concludes that the [plaintiff's] allegations of social difficulty are not supported in the medical evidence or even in her function report or in her initial allegations, which included only alleged learning disability, auditory processing and cognitive impairment.

Id. at 16 (citation omitted).

         She gave “some weight” to the Warren and 2012 Stahl opinions but did “not give great weight [to] their opinions that the [plaintiff] could not work with the public.” Id. She explained, “There is no evidence that the [plaintiff] would not be able to get along with the public, other than her assertions[, ]” and “[s]he has not been in any mental health treatment for social anxiety or any other psychological impairment.” Id. She gave “some weight” to the Booth opinion but found that “his conclusion about the [plaintiff's] being unable to work with the public is not supported in the medical evidence and appears to rely on [her] subjective complaints.” Id. at 16-17.

         Yet, as the plaintiff points out, see Statement of Errors at 2, in assessing the overall severity of her mental limitations for purposes of determining whether her condition met or equaled Listing 12.02, the ALJ found that she had moderate limitations in social activities, stating:

She reports feeling uncomfortable around a number of other people such as in the mall or crowded stores. However, she does report going to the mall when few people are around and can shop with a list for food. [She] has several friends that she does things with and is on Facebook at times.

Id. at 13 (citation omitted).

         The plaintiff contends that the ALJ's omission of any severe panic or anxiety disorder is unsupported by substantial evidence in that the ALJ (i) overlooked “additional references” in the medical record to her anxiety, see Statement of Errors at 4 (citing Record at 351), and (ii) rejected the agency consultants' unanimous opinion that she could not interact with the public while herself assessing moderate limitations in social functioning, see id. at 5. She asserts that, as a result, the ALJ impermissibly interpreted raw medical data to determine whether the panic/anxiety condition was severe. See id.; Iezzi v. Astrue, Civil No. 09-10-P-S, 2009 WL 3615018, at *3 n.4 (D. Me. Oct. 27, 2009) (rec. dec., aff'd Nov. 18, 2009) (“The [ALJ], as layperson, was not competent to judge on the basis of the raw medical evidence that the plaintiff's dizzy spells would have no more than a minimal effect on her ability to ...


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