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Gallant v. Berryhill

United States District Court, D. Maine

June 25, 2017

PATRICIA GALLANT, 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 Social Security Disability (“SSD”) appeal raises the question of whether the administrative law judge (“ALJ”) supportably found the plaintiff capable of performing work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that (i) the ALJ erred in his assessment of the medical evidence before him, (ii) substantial evidence does not support his residual functional capacity (“RFC”) assessment, and (iii) substantial evidence does not support his Step 5 finding. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 13) at 2-9.[3] I find no error and, accordingly, recommend that the court affirm the commissioner's decision.

         The decision at issue is the second pertaining to the Plaintiff's SSD application filed on January 25, 2011. See Record at 113. Following an unfavorable decision by the ALJ on March 22, 2013, see id. at 128-29, the plaintiff sought review by the Appeals Council, which vacated that decision and remanded the case to the ALJ for further evaluation of the nontreating source opinion of Jonathan M. Freedman, Ph.D. See id. at 135. The ALJ held a second hearing on February 26, 2015, during which he took testimony from the plaintiff, a vocational expert, and a psychological medical expert, James M. Claiborn, Ph.D. See id. at 12, 26-27. On April 18, 2015, he issued the decision here at issue. See id. at 12-20.

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 404.1520; Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the ALJ found, in relevant part, that the plaintiff last met the insured status requirements of the Social Security Act on December 31, 2014, Finding 1, Record at 14; that she had severe impairments of depression, not otherwise specified (“NOS”), and agoraphobia with panic, Finding 3, id; that she had the RFC to perform a full range of work at all exertional levels, but with the nonexertional limitations that she could understand and remember simple instructions, accomplish simple tasks on a consistent schedule to complete a normal workday and workweek, interact appropriately with small groups of coworkers, and tolerate occasional interaction with supervisors, but needed to avoid interaction with the general public, could only occasionally perform collaborative tasks, as she was better suited for independent work, and could adapt to occasional routine changes in the workplace, Finding 5, id. at 16; that, considering her age (52 years old, defined as an individual closely approaching advanced age, on her date last insured, December 31, 2014), 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 19; and that she, therefore, had not been disabled from December 8, 2010, her alleged onset date of disability, through December 31, 2014, her date last insured, Finding 11, id. at 20. 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; 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); 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); 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. The ALJ's Assessment of Expert Opinions

          The plaintiff first argues that the ALJ failed to properly evaluate the opinions of three sources: treating Nurse Practitioner (“NP”) Annette M. Hatch-Clein, Dr. Claiborn, and Jonathan Siegel, Ph.D., the Plaintiff's consultative examiner. See Statement of Errors at 2-5. For the reasons detailed below, these arguments do not succeed.

         1. NP Hatch-Clein

         The record before the ALJ contained the treatment notes of NP Hatch-Clein as well as a Medical Source Statement of Ability To Do Work-Related Activities (Mental) form that she completed on August 6, 2012 (“Hatch-Clein Opinion”). See Record at 500-01. The plaintiff complains that the ALJ “completely ignored” the Hatch-Clein Opinion. See Statement of Errors at 3. The commissioner admits that the ALJ did not discuss the opinion but asserts that his handling of it comported with the requirements of Social Security Ruling 06-03p (“SSR 06-03p”). See Defendant's Opposition to Plaintiff's Itemized Statement of Errors (“Opposition”) (ECF No. 17) at 2-5. I agree.

         The form that NP Hatch-Clein filled out listed 20 mental abilities bearing on an individual's ability to do work-related activities on a sustained basis. See Record at 500-01. She checked boxes indicating that the plaintiff was markedly limited in, or effectively precluded from performing, 17 of them. See id. She left blank the section of the form that requested “a diagnosis and a brief indication of what medical or clinical findings support this assessment[.]” Id. at 501.

         Hatch-Clein, a nurse practitioner, does not qualify as an “acceptable medical source” for Social Security purposes, see 20 C.F.R. §§ 404.1513(a), 416.913(a) (versions in effect prior to Jan. 18, 2017). “[O]nly ‘acceptable medical sources' can be considered treating sources, as defined in 20 CFR 404.1502 and 416.902, whose medical opinions may be entitled to controlling weight.” SSR 06-03p, reprinted in West's Social Security Reporting Service Rulings 1983-1991 (Supp. 2016), at 329. Yet, evidence from “other sources” such as Hatch-Clein may not be ignored:

With the growth of managed health care in recent years and the emphasis on containing medical costs, medical sources who are not ‘acceptable medical sources, ' such as nurse practitioners, physician assistants, and licensed clinical social workers, have increasingly assumed a greater percentage of the treatment and evaluation functions previously handled primarily by physicians and psychologists. Opinions from these medical sources, who are not technically deemed ‘acceptable medical sources' under our rules, are important and should be evaluated on key issues such as impairment severity and functional effects, along with the other relevant evidence in the file.

Id. at 330. “The weight to which such evidence may be entitled will vary according to the particular facts of the case, the source of the opinion, including that source's qualifications, the issue(s) that the opinion is about, and many other factors[.]” Id. at 331. Finally:

Although there is a distinction between what an adjudicator must consider and what the adjudicator must explain in the disability determination or decision, the adjudicator generally should explain the weight given to opinions from these ‘other sources, ' or otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's reasoning, when such opinions may have an effect on the outcome of the case.

Id. at 333.

         This court has held that “a decision complies with the requirements of SSR 06-03p when it makes clear that, had the administrative law judge expressly discussed the opinion of an ‘other source, ' he or she would have rejected it.” Robshaw v. Colvin, No. ...


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