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Durgin v. Berryhill

United States District Court, D. Maine

March 28, 2018

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


          John H. Rich III, United States Magistrate Judge

         This Social Security Disability (“SSD”) and 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 evaluating treating and examining source opinions and in assessing his credibility. See Itemized Statement of Errors Pursuant to Local Rule 16.3 Submitted by Plaintiff (“Statement of Errors”) (ECF No. 10) at 2-6. I find no error, and, accordingly, recommend that the court affirm the commissioner's decision.

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. §§ 404.1520, 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 met the insured status requirements of the Social Security Act through September 30, 2012, Finding 1, Record at 26; that he had severe impairments of a history of bilateral calcaneal fractures with subtalar arthritis, bipolar disorder, anxiety disorder, and a personality disorder, Finding 3, id.; that he had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except that, inter alia, he needed to avoid tasks involving a variety of instructions or tasks, was able to understand and carry out simple one- or two-step instructions and detailed but uninvolved written or oral instructions involving a few concrete variables in or from standardized situations, could have no contact with the public and occasional contact with coworkers, needed a well-spaced work environment but could work in view of others, could engage in no teamwork or work involving collaboration with others, needed minimal changes in work settings and routines, and could make judgments only on simple work-related decisions, Finding 5, id. at 29; that, considering his age (33 years old, defined as a younger individual, on his alleged disability onset date, July 27, 2011), education (at least high school), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that he could perform, Findings 7-10, id. at 37; and that he, therefore, had not been disabled from July 27, 2011, through the date of the decision, February 3, 2016, Finding 11, id. at 38. 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, 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. §§ 405(g), 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. §§ 404.1520(g), 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. The ALJ's Evaluation of the Opinion Evidence

         The plaintiff first alleges that the ALJ erred in her consideration of the opinion evidence of record. See Statement of Errors at 2-4. The ALJ gave “great weight” to the opinions of two agency nonexamining consultants, Lewis F. Lester, Ph.D., and Brian Stahl, Ph.D., and “some weight” to the opinions of agency examining consultant James F. Whelan, Jr., Psy.D. Record at 35. She gave “very little weight” to the opinions of the plaintiff's treating psychiatrist, Reinaldo de los Heros, M.D. Id. at 36. I find no error.

         1. Dr. Whelan's Opinions

         Dr. Whelan examined the plaintiff on June 13, 2013, diagnosing him with bipolar disorder, not otherwise specified, panic disorder with agoraphobia, obsessive compulsive disorder, attention deficit hyperactivity disorder (“ADHD”), and alcohol dependence in sustained full remission, and assessing a Global Assessment of Functioning (“GAF”) score of 45. See Record at 485, 491.[2]

         Dr. Whelan concluded, in the section of his report titled “Medical Source Statement”:

[The plaintiff] presents with serious psychological limitation in terms of his ability to do work related activity. . . . He has the apparent cognitive ability to be able to do work that is at least simple and repetitive in nature. Even with such work bipolar disorder, anxiety, attentional issues might singly or in some combination restrict his ability to take in information he could otherwise understand. He displayed adequate long-term memory and immediate recall during the course of the evaluation. He lost track of information in short-term memory but was stimulable to recover it. He speaks of lifelong problems with concentration. He said he experiences some help with the [medication] Vyvanse. [ADHD] would certainly contribute to attentional problems. He describes some skills at persistence. He apparently would rather keep working at something than have to ask for help though he could ask for help at work. He said his attendance at work was poor and he was frequently tardy. He describes limited but acceptable social interaction in work situations. He would rather work than interact with people. Anxiety may contribute to that. He describes limited ability to adapt to change at work. Bipolar disorder may resist the demand to adapt. The demand to adapt to change may increase his level of anxiety. Bipolar disorder, anxiety, attentional issues may singly or in some combination restrict his ability to take in information to help him to adapt. Serious psychological limitation in terms of his ability to do work related activity caused by bipolar disorder, anxiety, attentional issues appears to best describe [the plaintiff] at this point.

Id. at 492.

         The ALJ stated that she found Dr. Whelan's opinions “generally consistent with the medical evidence of record as well as his mental status examination.” Id. at 35 (citation omitted). She elaborated:

His opinion[] that the [plaintiff] has the apparent cognitive ability to do work that is at least simple and repetitive in nature is consistent with the [plaintiff]'s generally benign mental status examination by Dr. Whelan, as well as his level of activities . . . . His description of the [plaintiff]'s preference for working independently, but with some ability to ask for help at work, has been taken into account in the [plaintiff]'s RFC precluding contact with the general public and limiting his interactions with coworkers and supervisors. However, although Dr. Whelan's descriptions are useful in evaluating the [plaintiff]'s strengths and limitations regarding his performance of work-related tasks, Dr. Whelan does not provide a specific function-by-function analysis, and it is not entirely clear whether the [plaintiff]'s RFC contains any provisions that might be considered inconsistent with his Medical Source Statement.

Id. at 35-36 (citations omitted).

         The plaintiff disputes that it is unclear whether the Whelan report comports with the mental RFC found by the ALJ, asserting, “On the contrary, Dr. Whelan's statements and GAF assessment support disability, and go well beyond the [ALJ's] RFC.” Statement of Errors at 3. He asserts that, although Dr. Whelan noted attendance problems that a vocational expert testified would preclude employment, the ALJ simply omitted that limitation without explanation. See id. at 3-4. He argues that, while Dr. Whelan indicated that this limitation was reported by the plaintiff, he effectively endorsed it by including it in his “Medical Source Statement” and finding serious psychological limitations in the plaintiff's ability to work. Id. at 3 n.1.

         The commissioner rejoins that the ALJ supportably (i) deemed Dr. Whelan's opinion that the plaintiff could do simple, repetitive work consistent with generally benign mental status examinations and the plaintiff's activities of daily living, (ii) elected to make allowance for the plaintiff's preference to work alone, and (iii) concluded that, in the absence of a function-by-function analysis, it was unclear whether Dr. Whelan's Medical Source Statement was inconsistent with the mental RFC she had assessed. See Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) at 2-3. She adds that neither the plaintiff's self-reported attendance limitation nor Dr. Whelan's GAF score necessarily reflects disability because neither constitutes an opinion as to occupational functional limitations. See id. at ...

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