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Knox v. Berryhill

United States District Court, D. Maine

April 21, 2018

TAMMY L. KNOX, Plaintiff
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Performing the Duties and Functions Not Reserved to the Commissioner of Social Security, Defendant

          REPORT AND RECOMMENDED DECISION [1]

          John H. Rich III United States Magistrate Judge

         This Social Security Disability (“SSD”) 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 basis that the ALJ erred at Step 3 in determining that she did not medically equal the criteria of Listing 12.08, Appendix 1 to 20 C.F.R. Part 404, Subpart P (“the Listings”). See Plaintiff's Statement of Errors (“Statement of Errors”) (ECF No. 11) at 4-11. I find no error. Accordingly, I recommend that the court affirm the commissioner's decision.

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 404.1520; 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 December 31, 2015, Finding 1, Record at 37; that she had the severe impairments of anxiety-related disorder/post-traumatic stress disorder (“PTSD”) and personality disorder/borderline personality disorder, Finding 3, id.; that she had no impairment or combination of impairments that met or medically equaled in severity the criteria of a listed impairment, Finding 4, id. at 38; that she had the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels, but with the nonexertional limitations that she could understand and remember only short, simple instructions, she was able to work in two-hour time blocks in a normal workday/week performing simple tasks with appropriate concentration, persistence, and pace, she could interact occasionally with coworkers and supervisors but never with the general public, she would do best in a job with minimal social interactions, she could adapt to occasional, simple changes in the work setting (low stress), and she could be aware of normal hazards and take appropriate precautions, Finding 5, id. at 40; that, considering her age (44 years old, defined as a younger individual, on her date last insured, December 31, 2015), 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 she could perform, Findings 7-10, id. at 42; and that she, therefore, had not been disabled from January 29, 2014, her amended alleged disability onset date, through December 31, 2015, her date last insured, Finding 11, id. at 43. The Appeals Council declined to review the decision, id. at 1-4, making the decision the final determination of the commissioner, 20 C.F.R. § 404.981; 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); 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 her past relevant work. 20 C.F.R. § 404.1520(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).

         The statement of errors 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. § 404.1520(d); Dudley v. Sec'y 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. § 404.1525(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. § 404.1526(a).

         I. Discussion

         A. Background

         At the plaintiff's administrative hearing, held on February 2, 2016, psychologist James Claiborn, Ph.D., testified as a medical expert. See Record at 35. In response to questioning by the ALJ, Dr. Claiborn testified, in relevant part, that he “[did not] believe” that “the signs and symptoms or laboratory findings associated with the impairments of [the plaintiff, ] when considered either singly or in combination[, ] equal[ed] a listing.” Id. The ALJ then elicited Dr. Claiborn's testimony regarding the plaintiff's mental RFC. Id. at 105-10.

         The plaintiff's hearing counsel, who also represents the plaintiff in this appeal, then questioned Dr. Claiborn, in response to which he testified that: (i) based on the plaintiff's diagnoses of PTSD and personality disorder, it would be accurate to conclude that “she may have some significant issues with emotional stability[, ]” id. at 111, (ii) the plaintiff's emotional stability would at times “have a significant impact” on her “functionality[, ]” although he “didn't know . . . how to predict how often or . . . how much of an impact” it would have, id., (iii) “people with [the plaintiff's] kind of personality disorder . . . are often poorly skilled at emotional regulation[, ]” and, therefore, it would be “fair” to conclude “that there will be times or certainly could be times where that problem is going to translate into moderate to more marked limitations on functioning, ” id. at 112-13, (iv) “people with borderline personality disorder are often prone to abruption and sometimes frequent changes in mood when they get quite upset or depressed over . . . what others might consider relatively minor events[, ]” which is “likely to have an impact on their interpersonal relations[, ]” and “[t]hey may be overly sensitive to criticism, they may be a little suspicious about people and they tend to idealize and then demonize the same individual over time[, ]” id. at 113, (v) given the evaluation of agency examining consultant Edward Quinn, Ph.D., and the plaintiff's testimony, it was “fair to say that those symptoms ha[d] been present with [the plaintiff, ]” id. at 113-14, (vi) “[the plaintiff] may engage in . . . avoidant behavior, ” id. at 114, (vii) it would be “consistent” with the plaintiff's PTSD diagnosis if she experiences “episodes of hypervigilance” and “recurrent intrusive memories of traumatic events when she's out in public[, ]” id., and (viii) “[the plaintiff] may not be able to predict” when she would experience “symptoms of depression, recurrent intrusive memories of traumatic events, . . . [and] symptoms of physical isolation[, ]” id. at 115-16. The plaintiff's counsel did not question Dr. Claiborn regarding his previously stated opinion that the plaintiff's impairments neither met nor equaled a listing. See Id. at 110-18.

         On further questioning by the ALJ, Dr. Claiborn testified that, “despite [his] responses to [the plaintiff's counsel's] skillful questioning, . . . [he] believe[d] based on all [of] the facts and circumstances of this case that the RFC [he] provided [was] an accurate reflection of the [plaintiff]'s abilities[.]” Id. at 115.

         The ALJ found that, while the plaintiff's borderline personality disorder and PTSD were severe impairments, see Finding 3, id. at 37, “[t]he severity of [her] mental impairments, considered singly and in combination, did not meet or medically equal the criteria of [L]isting . . . 12.08[, ]” id. at 39.

         B. Merits

         The plaintiff contends that the ALJ erred when he found that her impairments did not medically equal Listing 12.08, which pertains to personality disorders. See Statement of Errors at 4-11.[2] She argues that, despite Dr. Claiborn's testimony that her impairments did not equal a listing, his later testimony in response to her counsel's questioning demonstrates that they did. See Statement of Errors at 10.

         She adds that Dr. Quinn's report also supports such a finding and that Dr. Claiborn's hearing testimony is consistent with her own. See id.; see also Record at 419 (findings by Dr. Quinn that plaintiff “may have some difficulties interacting with others due to personality factors[, ] . . . may have some difficulties with stressors[, ] . . . may have some significant issues with emotional stability[, ] . . . [and] may have difficulties in social settings”).

         At oral argument, the plaintiff's counsel further contended that the ALJ's failure to reconcile material conflicts in the Claiborn testimony as to whether his client's impairments equaled a listing warranted remand.

         The commissioner rejoins that (i) the plaintiff waived her challenge to the Listing 12.08 finding by failing to raise it before the ALJ, (ii) in the alternative, she fails to make a valid prima facie case that her impairments equal the severity of Listing 12.08, both because she relies on the current version of that listing rather than the version in effect at the time of the ALJ's decision and because she offers no expert opinion on the matter, and, (iii) in the alternative, the ALJ's finding that her impairments did not equal a listing is supported by substantial evidence. See Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 12) at 3-12.

         I agree that the plaintiff's bid for remand founders on the alternative bases that (i) she fails to make out a prima facie that her impairments equal Listing 12.08 and, (ii) in any event, the ALJ's finding that they did not is supported by substantial evidence. In those contexts, I address issues of waiver.

         1. Prima Facie Case That Impairments Equal Listing 12.08

         As the commissioner observes, see Opposition at 4-5, a claimant challenging an ALJ's determination that her impairments did not equal a listing bears the burden to identify objective medical findings and “explain how these findings can ‘equal' the listing[, ]” Burnham v. Soc. Sec. Admin. Comm'r, No. 1:11-cv-00246-GZS, 2012 WL 899544, at *3 (D. Me. Mar. 15, 2012) (rec. dec., aff'd Apr. 3, 2012). The plaintiff fails to do so here because she relies on the current version of Listing 12.08 rather than the version in effect as of the ALJ's March 2, 2016, decision.

         To meet both the current and prior versions of Listing 12.08, a claimant must meet at least one of several paragraph A criteria and have, inter alia, a marked level of limitation in at least two of four areas of functioning described in paragraph B. Compare Listing 12.08, 20 C.F.R. Appendix 1 to 20 C.F.R. Part 404, Subpart P (Apr. 1, 2016) (“2016 Version”) with Listing ...


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