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Brown v. Berryhill

United States District Court, D. Maine

October 15, 2017

TABETHA L. BROWN, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          MEMORANDUM DECISION [1]

          John H. Rich III United States Magistrate Judge

         This 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 commissioner's decision.

         Pursuant 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.[2] 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).

         The 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).

         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. § 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 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).

         I. Discussion A. The ALJ's Evaluation of Opinion Evidence

         The 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.

         1. The Neuropsychological Evaluation of Dr. Slap-Shelton

         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.[3]

         In the 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 relevant part:

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).

         She 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.

         The 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).

         Elaborating 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 nonexamining) consultant.[4]

         The 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.

         While I 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 ...


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