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Allen-Ward v. Berryhill

United States District Court, D. Maine

April 23, 2018

EMILY L. ALLEN-WARD, 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”) 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 determining her mental residual functional capacity (“RFC”) and in assessing her subjective symptoms. See Statement of Specific Errors (“Statement of Errors”) (ECF No. 11) at 4-10. I find no reversible 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 March 31, 2017, Finding 1, Record at 12; that she had the severe impairments of obesity, bilateral carpal tunnel syndrome, degenerative disc disease of the cervical and lumbar spine, an affective disorder, and an anxiety disorder, in combination, Finding 3, id. at 12; that she had the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except for the following limitations and restrictions: she needed a sit/stand option on an hourly basis for three to five minutes while still doing job functions, she could occasionally perform fine and gross manipulation, she could occasionally climb ramps, stairs, ladders, ropes, or scaffolds, she could occasionally stoop, kneel, crouch, or crawl, she should avoid respiratory irritants, with no vibrations, no hazards, and no sloping irregular surfaces, she could, on a sustained competitive basis, understand and remember simple instructions, she could use judgment to make simple work-related decisions, she could respond appropriately to supervisors, coworkers, and usual work situations with no more than frequent public contact, and she could adapt to changes in an ordinary work setting, Finding 5, id. at 15; that, considering her age (33 years old, defined as a younger individual, on her alleged disability onset date, August 31, 2013), 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 20-21; and that she, therefore, had not been disabled from August 31, 2013, through the date of the decision, April 29, 2016, Finding 11, id. at 22. 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 her 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 Mental RFC Determination

         1. Background

         Agency examining consultant A. J. Butler, Ed.D., performed a psychological consultative evaluation of the plaintiff on April 16, 2014. See Record at 360. Dr. Butler diagnosed her with mood disorder, generalized anxiety disorder, by report, attention deficit hyperactivity disorder, and features of post-traumatic stress disorder, and assessed her with a GAF, or Global Assessment of Functioning, score of 55.[2] See Id. at 366. Dr. Butler provided the following Medical Source Statement:

In regard to work-related activities, [the plaintiff] would be able to understand tasks consistent with Low Average to Average ability. She would likely have difficulty with abstract reasoning and need enhanced verbal mediation. She would need multiple repetition and reinforcement of verbal information in order to acquire, retain and utilize it. [The plaintiff] has observable attention and concentration difficulties and is apt to have significant difficulty sustaining prolonged task focus. She is apt to interact socially adequately in a familiar setting, but to have difficulty interacting socially in a large group or public setting due to heightened anxiety. She would likely have problems with adaptation given her mood lability and her focus on her physical health problems and pain condition.

Id.

         Two agency nonexamining consultants assessed the plaintiff's mental RFC with the benefit of review of the Butler report: Peter G. Allen, Ph.D., on initial review, and Thomas Knox, Ph.D., on reconsideration. See id. at 107, 110-11, 115-17, 127-28, 131-32, 135-37. As the plaintiff observes, see Statement of Errors at 2 n.1, the ALJ did not mention the Allen opinion, see Record at 12-20. Hence, I focus on that of Dr. Knox.

         Dr. Knox found, in relevant part, that the plaintiff had no understanding and memory limitations, explaining that her understanding and memory were within normal limits. See id. at 136. He also found, in relevant part, that she had sustained concentration and persistence limitations, as a result of which she was, inter alia, not significantly limited in her ability to carry out very short and simple instructions but markedly limited in her ability to carry out detailed instructions. See id. He explained: “Variable concentration due to pain & mood [disorder] but able to manage simple routine tasks (not complex) for normal workday/week, within her physical limits.” Id.

         Dr. Knox summarized Dr. Butler's Medical Source Statement as indicating that the plaintiff was “apt to have significant difficulty with prolonged tasks, can interact socially adequately, difficulty in [large] groups or public setting, needs repetition and reinforcement on info.” Id. at 128. He gave the Butler opinion “great weight” because it was “consistent with” the medical evidence of record. Id. at 133.

         The ALJ summarized and analyzed both the Butler report and the Knox opinion. See id. at 17-20. He detailed the history and daily activities that the plaintiff had reported to Dr. Butler, see id. at 17-18, and summarized her opinion as follows:

Dr. Butler gave the opinion that the [plaintiff] would be able to understand work-related tasks consistent with her low average to average ability. Dr. Butler also gave the opinion that the [plaintiff] is apt to have significant difficulty sustaining prolonged task focus, but she could socialize adequately in a familiar setting. Finally, Dr. Butler gave the opinion that the [plaintiff]'s GAF score is 55, indicating she has moderate mental symptoms.

Id. at 18 (citations omitted). He explained:

I give the opinion of Dr. Butler, a neutral consultative evaluator[, ] great weight here to show that the [plaintiff]'s GAF score is 55, indicating that [she] has moderate mental symptoms. Finally, Dr. Butler pointed out the [plaintiff]'s varied daily activities in this case.
***
I give the opinion of Dr. Knox, a state agency mental consultant[, ] great weight here to show that the [plaintiff] has variable concentration due to her pain and mood disorder, but she is capable of managing simple routine tasks during a normal workday/workweek.

Id. at 19-20 (citations omitted).

         Finally, the ALJ noted, in explaining why his assessed RFC was “well-supported by the greater weight of the medical and opinion evidence in this case[, ]” that treating nurse practitioner Christine C. Moulton, FNP, had observed in February 2016 that the plaintiff had “appropriate judgment, good insight, with recent and remote memory intact, and appropriate affect.” Id. at 20 (citing Record at 562); see also id. at 19 (summarizing Moulton records).

         As both the plaintiff and the commissioner agree, see Statement of Errors at 6; Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 14) at 8, the ALJ's RFC formulation is consistent with that of Dr. Knox, compare Finding 5, Record at 15 with Id. at 136-37.

         2. The ...


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