United States District Court, D. Maine
TABETHA L. BROWN, Plaintiff
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant
MEMORANDUM DECISION 
H. Rich III United States Magistrate Judge
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 (i) failed to properly evaluate a report of a
neuropsychological evaluation by Laura Slap-Shelton, Psy.D.,
and a residual functional capacity (“RFC”)
assessment by treating nurse practitioner (“NP”)
Kathleen M. Truslow, FNP-C, PMHNP-C, and (ii) erred in
finding that the plaintiff's impairments did not meet the
criteria of Listing 12.05(C), 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. 10) at 2-5. I conclude that the ALJ committed no
reversible error. Accordingly, I affirm the
to the commissioner's sequential evaluation process, 20
C.F.R. § 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 severe
impairments of a cognitive impairment/borderline intellectual
functioning, learning disorders, attention deficit
hyperactivity disorder (“ADHD”), depression, and
anxiety, Finding 2, Record at 16; that she did not have an
impairment or combination of impairments that met or
medically equaled the criteria of Listings 12.02, 12.04,
12.05, 12.06, or any other listing, Finding 3, id.
at 17-18; that she had the RFC to perform a full range of
work at all exertional levels but with the following
nonexertional limitations: she had a limitation in
concentration, persistence, or pace with the ability to
understand, remember, and carry out simple tasks and was
limited to object-oriented tasks, with only occasional
superficial work-related interactions with the general
public, Finding 4, id. at 20; that, considering her
age (born on February 10, 1982, and, thus, in the
“younger individual” age category at all relevant
times), education (limited), work experience (transferability
of skills immaterial), and RFC, there were jobs existing in
significant numbers in the national economy that she could
perform, Findings 6-9, id. at 22-23; and that she,
therefore, had not been disabled since May 6, 2013, the date
that she filed her application for SSI benefits, Finding 10,
id. at 24. 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. § 416.1481;
Dupuis v. Secretary of Health & Human Servs.,
869 F.2d 622, 623 (1st Cir. 1989).
standard of review of the commissioner's decision is
whether the determination made is supported by substantial
evidence. 42 U.S.C. § 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).
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. § 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).
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. § 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. § 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. § 416.926(a).
Discussion A. The ALJ's Evaluation of Opinion
plaintiff first argues that the ALJ improperly rejected
portions of the Slap-Shelton report suggesting that she could
not work without significant accommodation, as well as NP
Truslow's opinion that she had disabling mental
limitations. See Statement of Errors at 2-4. I find
no reversible error.
The Neuropsychological Evaluation of Dr.
Slap-Shelton completed a neuropsychological evaluation of the
plaintiff in 2013. See Record at 290-315. After
administering the Wechsler Adult Intelligence Scale-IV
(“WAIS-IV”), she concluded that the plaintiff had
a full-scale IQ score of 67, which placed her “in the
Extremely Low range and the 1st percentile for
overall intellectual processing.” Id. at 290,
297. Dr. Slap-Shelton also found that the plaintiff was
“functioning in the range of mild Mental
Retardation” and had severe learning disorders, major
depression, and ADHD. Id. at 297. She concluded that
the plaintiff's “reading, writing and math skills
[were] below the level needed to function independently as an
adult[.]” Id. She added:
[The plaintiff] will require significant supports for
employment, and will do best in situations in which she
performs simple tasks with positive friendly supervision and
protection from negative interactions with co-workers, as she
is a vulnerable individual with significantly low self-esteem
and impaired comprehension.
Id. She recommended that the plaintiff would
“benefit from Vocational Therapy to help her develop a
plan for part time employment or sheltered employment.”
Id. at 298. She assessed the plaintiff with a GAF
score of 45. See id. at 300.
context of summarizing the record evidence, the ALJ set forth
Dr. Slap-Shelton's diagnoses and some of the test results
underpinning them. See id. at 17-20. In the context
of discussing the opinion evidence of record, she stated, in
To the extent . . . Dr. Slap-Shelton assessed the claimant
[with] a GAF of 45, which could be consistent with serious
symptoms and/or impairment of [her] social and/or
occupational functioning, this is inconsistent with the
[record and medical evidence], and is given minimal/less than
probative weight with respect thereto.
Id. at 22 (citations omitted).
explained that, with respect to the opinion evidence
concerning the plaintiff's functioning, she gave
“significant probative weight” to the assessments
of agency nonexamining consultants Lewis F. Lester, Ph.D.,
and David R. Houston, Ph.D., both of whom had considered the
Slap-Shelton report as well as a report of a psychological
evaluation by agency examining consultant Roger Ginn, Ph.D.
See Id. at 21, 59-65, 74-80, 419-20.
plaintiff complains that, to the extent that the ALJ rejected
the Slap-Shelton report, she failed to give adequate reasons
for doing so, and she failed to directly address Dr.
Slap-Shelton's finding of a need for supported
employment. See Statement of Errors at 3. She
contends that the Slap-Shelton report “supports that
[she] cannot engage in employment without significant
accommodation which would not be available in competitive
employment[, ]” and, while Dr. Slap-Shelton stated that
she would “do best” with the specific protections
mentioned, the report overall suggests that those protections
were necessary for the performance of full-time employment.
Id. (quoting Record at 297).
on these points at oral argument, the plaintiff's counsel
contended that, although Dr. Slap-Shelton was not a treating
source, several factors relevant to the weighing of
“medical opinion” evidence counseled in favor of
the adoption of her opinion: its supportability, given the
extensive testing underpinning it, and Dr. Slap-Shelton's
status as a specialist and an examining (rather than
plaintiff asserts that the ALJ's error in discounting or
ignoring Dr. Slap-Shelton's opinion was not harmless
given the testimony of a vocational expert (“VE”)
at hearing that a need for “positive, friendly
supervision and protection from negative interaction with
coworkers” would be available only in “a
sheltered situation” and “would preclude regular
competitive employment[.]” Statement of Errors at 2, 4;
Record at 53.
agree with the plaintiff that portions of the Slap-Shelton
report qualify as “medical opinions” that the ALJ
was required to evaluate pursuant to 20 ...