Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Pressey v. Berryhill

United States District Court, D. Maine

June 25, 2017

KIP PRESSEY, 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”) and Supplemental Security Income (“SSI”) 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 the ALJ erred in determining his mental residual functional capacity (“RFC”) by failing to adequately address his social limitations or his limitations in concentration, persistence and pace; failed to provide an adequate rationale for her findings as to his physical RFC; and relied on flawed vocational expert testimony at Step 5. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 13) at 2-12. I find no basis for remand 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 met the insured status requirements of the Social Security Act through December 31, 2017, Finding 1, Record at 12; that he had severe impairments of degenerative disc disease of the lumbar spine, affective disorder/bipolar disorder, and personality disorder/antisocial personality disorder, Finding 3, id. at 13; that he had the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that he could lift and carry 20 pounds occasionally and 10 pounds frequently, needed to be allowed to alternate between sit and stand positions every 30 minutes, could not operate foot controls, could never climb ladders, ropes, or scaffolds, needed to avoid unprotected heights and dangerous equipment, could tolerate no more than occasional contact with coworkers and supervisors, could not work in a teamwork or collaborative environment, and needed to avoid contact with crowds and the general public, Finding 5, id. at 15-16; that, considering his age (41 years old, defined as a younger individual, on his alleged disability onset date, August 16, 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 he could perform, Findings 7-10, id. at 20; and that he, therefore, had not been disabled from August 16, 2012, through the date of the decision, May 7, 2015, Finding 11, id. at 22. 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 his 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).

         I. Discussion

         A. Mental RFC Determination

         1. Plaintiff's Social Limitations

         The plaintiff first argues that the ALJ erred in assessing his social limitations when determining his mental RFC. See Statement of Errors at 2-5. The ALJ relied on the opinions of three experts in considering the plaintiff's mental RFC: agency examining consultant Edward Quinn, Ph.D., and agency nonexamining consultants Peter G. Allen, Ph.D., and Brian Stahl, Ph.D. See Record at 19.

         Dr. Quinn found the plaintiff to have an antisocial personality disorder and, with respect to his ability to interact socially in the workplace, concluded:

He is likely to have difficulties interacting well with others . . . [and is] particularly . . . likely to have difficulties with supervisors, coworkers who take on authority roles, and the public with complaints. He is likely to have difficulty with stressors . . . [and] substantial problems behaving in an emotiona[ly] stable manner. He is likely to have difficulties in social settings . . . [and] issues with reliability.

Id. at 441. The ALJ afforded Dr. Quinn's assessment partial weight and those of Drs. Allen and Stahl great weight, explaining that Drs. Allen and Stahl had had access to a majority of the relevant medical record, including the Quinn report, and that Dr. Quinn did not have the benefit of the treatment record to examine. See Id. at 19. The plaintiff argues that the nonexamining consultants largely agreed with Dr. Quinn but failed to include several specific limitations that he had assessed, as a result of which their mental RFC opinions were “simply too ‘telegraphic' to be a valid assessment of [his] mental impairment.” Statement of Errors at 3-4 (quoting Lindsey v. Social Sec. Admin. Comm'r, No. 1:10-cv-00038-JAW, 2011 WL 86567, at *7 (D. Me. Jan. 10, 2011) (rec. dec. aff'd Feb. 28, 2011)). Therefore, he argues, the ALJ erred in failing to find, or even address, those additional limitations in the plaintiff's RFC.

         The ALJ found, in relevant part, that the plaintiff could not tolerate more than occasional contact with coworkers and supervisors, could not work in a teamwork or collaborative environment, and needed to avoid contact with crowds and the general public. See Finding 5, Record at 15-16.

         The plaintiff contends that “the ALJ should have acknowledged that [he] would likely have difficulties with supervisors and coworkers who take on authority roles in addition to the public” as well as issues with reliability. Id. at 4. He argues that the ALJ's assessed restrictions were primarily quantitative, insufficiently reflecting his qualitative restrictions in getting along with others. See Statement of Errors at 4-5. At oral argument, his counsel elaborated that, because the plaintiff's difficulties in getting along with coworkers and supervisors could erupt at any time, limitations on the quantity of time spent with them were inadequate.

         Yet, contrary to the plaintiff's contention, the ALJ did acknowledge the plaintiff's likely difficulties with supervisors and coworkers in positions of authority by providing not only quantitative restrictions that he was to have only occasional contact with supervisors and coworkers of any stripe, but also qualitative ones prohibiting him from working in a teamwork or collaborative environment. See Finding 5, Record at 15-16.

         The plaintiff's arguments that Dr. Quinn's assessment should have resulted in a more restrictive RFC, and was more specific than those of Drs. Allen and Stahl, are similarly without merit. As the commissioner points out, see Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 17) at 4, Dr. Quinn's assessment of the plaintiff's social abilities in the workplace employs the qualifier “likely” throughout, see Record at 441. This court has previously held that opinions by examining consultants employing such qualifiers as “may” and “likely” fail to “translate actual or expected difficulties into specific limitations[, ]” as a result of which “their statements are not RFC opinions as defined in 20 C.F.R. §§ 404.1545(c), 416.945(c)[.]” Sheldon v. Colvin, Civil No. 2:13-CV-315-DBH, 2014 WL 3533376 at *5 (D. Me. July 15, 2014). Further, a one-time examining consultant is not a “[t]reating source, ” 20 C.F.R. §§ 404.1052, 416.902, and thus the ALJ need not ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.