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Kahn v. Berryhill

United States District Court, D. Maine

January 18, 2018

BRETTEN J. KAHN, Plaintiff
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant

          REPORT AND RECOMMENDED DECISION

          John C. Nivison U.S. Magistrate Judge

         On Plaintiff Bretten J. Kahn's application for disability insurance benefits under Title II and supplemental security income benefits under Title XVI of the Social Security Act, Defendant, the Social Security Administration Acting Commissioner, found that Plaintiff has severe impairments, but retains the functional capacity to perform substantial gainful activity. Defendant, therefore, denied Plaintiff's request for disability benefits. Plaintiff filed this action to obtain judicial review of Defendant's final administrative decision pursuant to 42 U.S.C. § 405(g).

         Following a review of the record, and after consideration of the parties' arguments, I recommend the Court affirm the administrative decision.

         The Administrative Findings

         The Commissioner's final decision is the April 20, 2016, decision of the Administrative Law Judge (ALJ). (ECF No. 9-2, PageID ## 38 - 48.)[1] The ALJ's decision tracks the familiar five-step sequential evaluation process for analyzing social security disability claims, 20 C.F.R. §§ 404.1520, 416.920.

         The ALJ found that Plaintiff has a severe, but non-listing-level impairment consisting of anxiety disorder, and that Plaintiff, despite his impairment, retains the residual functional capacity (RFC) to perform a full range of work at all levels of exertion provided the work does not involve interaction with the public and does not require more than occasional interaction with co-workers and supervisors. (Id. ¶¶ 3 - 5.) Consistent with the findings, the ALJ found that Plaintiff can no longer perform past relevant work as a home care attendant. (Id. ¶ 6.)

         Based on the testimony of a vocational expert, the ALJ determined that a person with Plaintiff's RFC, age, and vocational background would be able to engage in substantial gainful activity in other occupations, including the representative occupations of janitor, kitchen helper, and packager. (Id. ¶¶ 7 - 10.) Accordingly, the ALJ concluded that Plaintiff was not under a disability during the relevant time period. (Id. ¶ 11.)

         Standard of Review

         A court must affirm the administrative decision provided the ALJ applied the correct legal standards and provided the decision is supported by substantial evidence. This is so even if the record contains evidence capable of supporting an alternative outcome. Manso-Pizarro v. Sec'y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per curiam); Rodriguez Pagan v. Sec'y of HHS, 819 F.2d 1, 3 (1st Cir. 1987). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a finding. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981). “The ALJ's findings of fact are conclusive when supported by substantial evidence, but they are not conclusive when derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).

         Discussion

         Plaintiff argues the ALJ erred because he (1) improperly evaluated Plaintiff's subjective report of symptoms, and (2) afforded minimal weight to the opinion of Plaintiff's treating therapist and substantial weight to the opinion of a non-examining psychological consultant. (Statement of Errors, ECF No. 13.) Through his arguments, Plaintiff challenges the ALJ's RFC determination, which is made at a stage of the sequential evaluation process at which Plaintiff retains the burden to demonstrate his incapacity to perform substantial gainful activity. Rodriguez v. Sec'y of HHS, 923 F.2d 840 (1st Cir. 1990); Roberts v. Barnhart, 67 F. App'x 621, 622 (1st Cir. 2003) (per curiam).

         1.The ALJ's consideration of Plaintiff's statements

         Plaintiff contends the ALJ did not properly evaluate certain statements Plaintiff made regarding the degree of his limitation. As part of the RFC assessment, the ALJ evaluated Plaintiff's subjective report of symptoms pursuant to a two-step process. (R. 18 - 20, ECF No. 9-2, PageID ## 43 - 45.) Initially, the ALJ considered whether the objective medical evidence of record disclosed medically determinable impairments that reasonably could cause the degree of limitation reported by Plaintiff. (R. 19.) The ALJ concluded that Plaintiff's medically determinable impairment, anxiety, could result in the limitation alleged by Plaintiff, but that the objective medical record did not independently substantiate the degree of limitation Plaintiff alleged.[2] (R. 19: “Overall, the records fail to reveal any clinical signs or objective findings to support his allegations of significant functional limitations.”) The ALJ, therefore, proceeded to the second step of the evaluation process.

         At the second step, the ALJ reviewed Plaintiff's statements relevant to his anxiety symptoms. In particular, the ALJ considered Plaintiff's reports that he did not like to go out in public and thus typically spends most of the day attending to the home and playing computer games, that he has no real world friends other than his fiancé, [3] that he sometimes plays computer games with online friends throughout the evening and well into the morning, that he was able to travel by public air transportation, that his travels included a trip to Disney ...


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