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Norman T. v. Berryhill

United States District Court, D. Maine

June 24, 2018

NORMAN T., Plaintiff
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 basis that the ALJ erred in two respects in determining his mental residual functional capacity (“RFC”): in assessing a limitation flowing from his cognitive disorder that is unsupported by any record evidence and in failing to assess any limitation in his ability to work with coworkers and supervisors. See Statement of Specific Errors (“Statement of Errors”) (ECF No. 13) at 1-14. He argues that these errors undermined the ALJ's reliance on the testimony of a vocational expert predicated on the faulty mental RFC determination. See id. at 14. I agree that the ALJ erred in assessing the functional effects of the plaintiff's cognitive disorder and that this error warrants remand. Accordingly, I recommend that the court vacate the commissioner's decision and remand this case for further proceedings consistent herewith. I need not and do not reach the plaintiff's argument that the ALJ's omission of a limitation in working with coworkers and supervisors separately warrants remand.

         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 degenerative disc disease of the lumbar spine, affective disorder, anxiety disorder, attention-deficit disorder, and cognitive disorder status post remote traumatic brain injury, Finding 2, Record at 19; that he had the RFC to perform sedentary work as defined in CFR § 416.967(a) except that he could lift, carry, push, and pull up to 10 pounds occasionally, sit for six hours in an eight-hour workday, stand and walk for two hours in an eight-hour workday, and stand and walk for intervals of no more than 15 minutes, would need to stand or walk for five minutes, remaining on task, after 30 minutes of sitting, could never climb ladders, ropes, or scaffolds, could occasionally climb ramps or stairs, could occasionally crouch, crawl, kneel, and stoop, could never balance on uneven surfaces, needed to avoid exposure to extreme cold, vibration, moving mechanical parts, and unprotected heights, could frequently reach and handle with the right (dominant) upper extremity, was limited to simple work in a nonproduction-paced work setting (no assembly-line type work), could not work with the public as part of his job duties, was limited to simple decision making and no more than occasional changes in a routine work setting, and would be off-task for 10 percent of the workday in addition to normal breaks, Finding 4, id. at 22; that, considering his age (45years old, defined as a younger individual, on his amended alleged disability onset date, December 3, 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 he could perform, Findings 6-9, id. at 29; and that he, therefore, had not been disabled from December 3, 2013, through the date of the decision, June 1, 2016, Finding 10, id. at 30-31. 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).

         The statement of errors also implicates Step 4 of the sequential evaluation process, at which stage the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. § 416.920(f); Yuckert, 482 U.S. at 146 n.5. At this step, the commissioner must make findings of the plaintiff's RFC and the physical and mental demands of past work and determine whether the plaintiff's RFC would permit performance of that work. 20 C.F.R. § 416.920(f); Social Security Ruling 82-62 (“SSR 82-62”), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.

         I. Discussion

         A. Relevant Background

         As the ALJ noted, the plaintiff filed the instant application for SSI benefits shortly after the Appeals Council denied his request for review of a prior unfavorable ALJ decision issued on July 27, 2012. See Record at 25. In the 2012 decision, a different ALJ had found that the plaintiff had the severe impairments of lumbar degenerative disc disease and depression and that he was limited, in relevant part, to work involving simple, routine, repetitive tasks. See Findings 3, 5, id. at 81-82.

         The ALJ stated, “Considering the passage of over a year between the issuance of this decision and the application for disability currently under review, I afford [the 2012 decision] limited weight.” Id. at 25. He explained:

The limitations of that [RFC] are still supported, and the review of more recent medical records demonstrates that the [plaintiff] continues to suffer from the impairments found in this decision. However, the [plaintiff]'s ability to sit for long periods of time has deteriorated and his mental impairments have been better documented, thus supporting additional limitations such as the need to take routine breaks while sitting and an allowance that he may be off task for up to 10% of the work day.


         Indeed, following the issuance of the 2012 decision, the plaintiff underwent a neuropsychological evaluation by Christine R. Deering, Ph.D., on March 28, 2013, see id. at 328-35, and, in connection with the instant application, a psychological evaluation by agency examining consultant A.J. Butler, Ed.D., on April 16, 2014, see Id. at 369-74. With the benefit of review of both of those reports, two agency nonexamining consultants, Peter G. Allen, Ph.D., and Brian Stahl, Ph.D, formulated opinions concerning the nature and impact of the plaintiff's mental impairments. See Id. at 105-13, 124-31.

         1. Deering Evaluation

         The plaintiff's primary care physician, Charles T. McHugh, M.D., referred him to Dr. Deering “for a comprehensive neuropsychological evaluation to assess the current level of his cognitive and neurobehavioral functioning secondary to declining short-term memory, problems with vision, personality changes, and distractibility exacerbated over the past 6-8 months.” Id. at 328; Statement of Errors at 9. Dr. Deering noted that the plaintiff's history included “severe head trauma with loss of consciousness secondary to a motorcycle accident at age 18 which required a 3 month hospitalization.” Record at 328. She concluded that he had a cognitive disorder not otherwise specified, an attention-deficit hyperactivity disorder, and a mood disorder not otherwise specified. See Id. at 334.

         Dr. Deering noted that “[t]here was evidence of mild degrees of distractibility/inattention and impulsivity/restlessness despite the quiet testing environment” and that:

Neuropsychological deficits were observed in the areas of attention/concentration, executive functioning, memory functions, and motor functions on his right side. Performance on tasks of attention/concentration indicated problems with immediate auditory attention, divided attention, processing speed, and sustained attention. Executive functioning, often correlated with poor attentional capacity, evidenced mild levels of mental concreteness, inability to quickly and easily benefit from verbal feedback, and mild response inhibition. Memory functions were lower than expected on delayed memory for prose, rote memory, and delayed memory for designs.


         In a section of her report titled “Treatment Recommendations, ” Dr. Deering stated, “As [the plaintiff] evidences significant neuropsychological deficits in the areas of attention/concentration, executive functions, memory functions (as well as significant mood dysregulation with depression) he is not deemed capable of ...

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