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.

Marcou v. Berryhill

United States District Court, D. Maine

September 17, 2017

FRED L. MARCOU, JR., Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          REPORT AND RECOMMENDED DECISION [1]

          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 that the plaintiff had no severe mental impairment as of his date last insured for SSD benefits, June 30, 2011. The plaintiff seeks remand, arguing that the ALJ improperly substituted her lay opinion for the uncontroverted medical opinion of psychologist Jeffrey M. Wagner, Ph.D., failed to call a medical expert to infer onset date of disability pursuant to Social Security Ruling 83-20 (“SSR 83-20”), and erroneously concluded that his mental impairments did not meet the criteria of Listing 12.05, Appendix 1 to Subpart P, 20 C.F.R. § 404 (the “Listings”). See Itemized Statement of Errors Pursuant to Local Rule 16.3 Submitted by Plaintiff (“Statement of Errors”) (ECF No. 13) at 1-10. I agree that the ALJ's finding that the plaintiff had no severe mental impairment as of his date last insured, as well as her rejection of Dr. Wagner's opinion insofar as it bore on Listing 12.05, are unsupported by substantial evidence and recommend that the court vacate the decision and remand this case, without reaching the plaintiff's alternative SSR 83-20 argument.

         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 met the insured status requirements of the Social Security Act through June 30, 2011, Finding 1, Record at 14; that, as of his date last insured, he had medically determinable impairments of borderline intellectual functioning, a learning disorder, and alcohol abuse/dependence, none of which significantly limited his ability to perform basic work-related activities for 12 consecutive months, and, therefore, he did not have a severe impairment or combination of impairments, Findings 3-4, id. at 14-15; and that he, therefore, was not disabled at any time through June 30, 2011, his date last insured, Finding 5, 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 ALJ reached 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).

         The statement of errors also implicates Step 3 of the sequential evaluation process, at which step a claimant bears the burden of proving that his impairment or combination of impairments meets or equals a listing. 20 C.F.R. § 404.1520(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). 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).

         I. Discussion

         A. Challenge to Step 2 Finding

         The plaintiff first faults the ALJ for rejecting the “uncontradicted” June 8, 2015, opinion of Dr. Wagner and substituting her lay opinion for his. See Statement of Errors at 1-5. I agree that, in view of the addition of the Wagner opinion to the record, the ALJ's Step 2 finding is unsupported by substantial evidence.

         1. Background

         The plaintiff, who dropped out of school in ninth grade, worked as an auto mechanic for many years. See Record at 388. On September 23, 2013, he filed applications for both SSD, or Title II, benefits and Supplemental Security Income (“SSI”), or Title XVI, benefits, see id. at 12 & n.1., alleging disability since January 1, 2010, “due to foot problems and trouble reading and writing[, ]” id. at 387. “To be eligible to receive SSD benefits [a claimant] ha[s] to have been disabled on or before [his or] her date last insured . . .; however, eligibility for SSI benefits is not dependent on insured status.” Chute v. Apfel, No. 98-417-P-C, 1999 WL 33117135, at *1 n.2 (D. Me. Nov. 22, 1999) (rec. dec., aff'd Dec. 20, 1999). Because the plaintiff's date last insured for SSD benefits was June 30, 2011, see Finding 1, Record at 14, he had to prove that he was disabled on or before that date to be entitled to SSD benefits. Prior to his hearing before the ALJ, he amended his alleged onset date of disability to June 30, 2011, his date last insured for SSD benefits. See id. at 12.

         The plaintiff was found entitled to SSI benefits on initial review of his application, and awarded such benefits retroactive to the date of his application, September 23, 2013. See id. at 78-79. Accordingly, his appeal before the ALJ solely concerned his eligibility for SSD benefits. See id. at 12 & n.1.

         The record before the ALJ contained the opinions of four experts bearing on the plaintiff's mental impairments. Following an examination of the plaintiff on January 15, 2014, agency consultant Patricia Kolosowski, Ph.D., diagnosed him with alcohol dependence and an adjustment disorder with a depressed mood, noting that he stated that he could not read and write and that, on mental status examination, he had been unable to read the sentence, “Close your eyes.” Record at 387-90. Dr. Kolosowski expressed no opinion regarding the plaintiff's mental impairments as of his date last insured. See id.

         On initial review, on February 5, 2014, agency nonexamining consultant Lewis F. Lester, Ph.D., issued two opinions, one for the then-current period and one for the period as of the plaintiff's date last insured. See id. at 70-71. He found that, for the current period, the plaintiff had severe impairments of affective disorders, borderline intellectual functioning, and a learning disorder that limited him, inter alia, to understanding and remembering simple tasks and procedures and interacting with co-workers and supervisors but not the public, but that for the period on or before his date last insured, there was insufficient evidence to assess his mental impairments, associated functional limitations, or residual functional capacity (“RFC”). See id. at 70-71, 75-76.

         On reconsideration of the SSD denial, a second agency nonexamining consultant, Brian Stahl, Ph.D., issued an opinion dated July 16, 2014, concurring that there was insufficient evidence to assess the plaintiff's mental impairments, associated functional limitations, or RFC as of his date last insured. See id. at 89.

         Shortly before his July 9, 2015, hearing before the ALJ, see id. at 26, the plaintiff submitted an IQ Testing and Functional Capability Evaluation by Dr. Wagner dated June 8, 2015, and Dr. Wagner's responses to a Mental Impairment Questionnaire dated June 26, 2015. See id. at 849-64.

         Dr. Wagner administered several tests to the plaintiff - the Wechsler Adult Intelligence Scale, Fourth Edition (“WAIS-IV”), Beck Depression Inventory, and Pain Disability Index - and reviewed his medical and academic records. See id. at 849. He diagnosed him with an intellectual disability in the mild-moderate range, predicated on a full-scale IQ score of 54, major depression, somatic ...


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.