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Smith v. Berryhill

United States District Court, D. Maine

March 26, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant


          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 erred in (i) rejecting the opinion of his treating physician's assistant (“PA”), F. Tim Garland, PA-C, (ii) minimizing the import of Global Assessment of Functioning (“GAF”) scores[2]that PA Garland consistently assessed, and (iii) relying on the opinions of agency nonexamining consultants. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 11) at 4-10.[3] After careful consideration, I find no error and, accordingly, affirm the commissioner's decision.

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 416.920; Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the ALJ found, in relevant part, that the plaintiff had the severe impairments of chronic obstructive pulmonary disease (“COPD”), a learning disability, a personality disorder, and affective, anxiety-related, and substance use disorders, Finding 2, Record at 12; that he had the residual functional capacity (“RFC”) to perform medium work as defined in 20 C.F.R. § 416.967(c), except that he needed to avoid concentrated exposure to extremes of temperature and pulmonary irritants, could understand, remember, and carry out simple tasks, and was limited to object-oriented tasks, with only occasional work-related interactions with supervisors and coworkers and no interaction with the general public, Finding 4, id. at 16; that, considering his age (born on March 6, 1970, and in the age category “younger individual”), education (limited), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that he could perform, Findings 6-9, id. at 19; and that he, therefore, had not been disabled at any time from June 25, 2013, the date he filed his SSI application, through the date of the decision, October 15, 2015, Finding 10, id. at 20-21. 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. Sec'y 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. Sec'y 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. Sec'y 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. § 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. Sec'y of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

         I. Discussion

         A. Asserted Errors in ALJ's Handling of Garland Opinion

         PA Garland supplied a letter and responses to a mental RFC questionnaire dated August 25, 2015. See Record at 507-12. In his letter, he stated that he had treated the plaintiff at Kennebec Behavioral Health (“KBH”) for medication management for mental health issues since August 3, 2011, and that the plaintiff returned monthly for follow-up visits. See id. at 507. He noted:

Anxiety issues prevail and have prevented [the plaintiff] from activities or work involving moderate groups of people. Interactions with people other than family are extremely limited. It is unlikely that a suitable work environment exists with his current symptoms.
There has been some stabilization of his symptoms with current treatment but prognosis is poor that he will be able to function in the work environment within the next year and then questionable.


         In his responses to the mental RFC questionnaire, PA Garland indicated that the plaintiff had a current GAF score of 44, which was also his highest GAF score during the prior year. See id. at 508.[4] He deemed the plaintiff unable to meet competitive standards for, or seriously limited in performing, 11 of 16 mental abilities and aptitudes needed to do unskilled work, including maintaining regular attendance and being punctual within customary, usually strict, tolerances, working in coordination with or proximity to others without being unduly distracted, completing a normal workday and workweek without interruptions from psychologically-based symptoms, accepting instructions and responding appropriately to criticism from supervisors, and getting along with coworkers and peers without unduly distracting them or exhibiting behavioral extremes. See id. at 510.

         He added that the plaintiff was unable to meet competitive standards in interacting appropriately with the general public and seriously limited in maintaining socially appropriate behavior, explaining, “General Anxiety Disorder around strangers or groups resulting in mood swings and impulse control difficulty.” Id. at 511.

         The ALJ gave the Garland opinion “minimal/less probative weight[, ]” explaining:

Although [PA Garland], who has treated the [plaintiff] at [KBH] on multiple occasions, assessed [him] GAF's in the 40's, which could be consistent with marked symptoms and/or marked functional limitations, specifically indicating in an assessment dated August 25, 2015, that [he] had serious to unable [sic] to meet competitive standard level of functioning in multiple areas, this is inconsistent with the just discussed record and the aforementioned medical evidence[.]

Id. at 18-19 (footnote and citations omitted). The ALJ added:

A GAF is not a precise functional assessment, which describes specific mental work related limitations. A GAF between 41-50 can be based upon subjective, unsubstantiated complaints such as having no friends, inability to hold a job, alleged panic attacks, hallucinations, obsessions, or delusions (which have not been observed by the mental health provider), sleep problems, unemployment, inability to obtain health insurance, recent deaths, family relationship problems, or sickness, housing problems, financial problems, substance abuse, and/or criminal problems. The score can be based on behaviors which have little or no relationship to occupational functioning (e.g., [the DSM-IV-TR] specifically notes that “frequent shoplifting” can be a basis for a GAF rating in this range). The GAF under 51 does not have to be based upon actual mental status examination findings or psychological testing. Moreover, low GAF scores alone do not compel a finding of disability. See 65 Fed. Reg. 50746, ...

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