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Russell B. v. Berryhill

United States District Court, D. Maine

October 21, 2018

RUSSELL B., Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          MEMORANDUM DECISION [1]

          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, in assessing his residual functional capacity (“RFC”), the ALJ failed to properly evaluate the impact of either his attention deficit hyperactivity disorder (“ADHD”) or his degenerative disc disease (“DDD”). See Statement of Specific Errors (“Statement of Errors”) (ECF No. 14) at 3-14. I find no reversible 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 DDD of the lumbar spine, borderline intellectual functioning, and ADHD, Finding 2, Record at 28; that he had the RFC to perform light work as defined in 20 C.F.R. § 416.967(b), except that he was limited to simple and repetitive tasks in an environment with no public interaction and only occasional interaction with co-workers and supervisors and to occasional climbing of ladders, ropes, and scaffolds and frequent balancing, kneeling, stooping, crouching, and crawling, Finding 4, id. at 31; that, considering his age (21 years old, defined as a younger individual, on the date his application was filed, August 21, 2014), 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 38-39; and that he, therefore, had not been disabled from August 21, 2014, the date his application was filed, through September 15, 2016, the date of the decision, Finding 10, id. at 39-40. 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. Handling of Plaintiff's ADHD

         In adopting the mental limitations set forth in his RFC determination, the ALJ gave great weight to the opinion of examining neuropsychologist Christine M. Fink, Ph.D., reflected in a report of a July 2014 neuropsychological evaluation of the plaintiff, as well as to the opinions of agency nonexamining psychologists Brian Stahl, Ph.D., and Thomas Knox, Ph.D., dated October 25, 2014, and February 3, 2015, respectively. See Record at 38, 107-09, 119-21, 309-20.

         Both Drs. Stahl and Knox determined that the plaintiff retained the capacity to understand and remember simple instructions and tasks, work in two-hour blocks performing simple tasks over the course of a normal workday/workweek, work with co-workers and supervisors but not the public, and adapt to simple changes. See id. at 108-09, 120-21.

         The ALJ explained that he accorded the Stahl and Knox opinions great weight because they were “supported by the results” of the Fink evaluation. Id. at 38. He elaborated:

The [plaintiff]'s performance on standardized cognitive testing was generally consistent with his performance on the same measures in 2009. The opinion is consistent with the medical record and the [plaintiff]'s reported activities of daily living, including driving, running errands, playing videogames, part-time work, and care of his grandmother.

Id. He stated that he gave the Fink opinion great weight because (i) “Dr. Fink had the opportunity to interview the [plaintiff] and his mother and to review records[, ]” (ii) her opinion was “supported by explanation and relevant medical evidence, including performance on standardized instruments and findings on mental status examination[, ]” and (iii) her opinion was “consistent with treatment records and the [plaintiff]'s reported activities of daily living.” Id.

         The plaintiff disputes that the Stahl and Knox opinions were supported by the Fink opinion or consistent with his activities of daily living. See Statement of Errors at 6. He adds that, in this case, as in Lindsey v. Soc. Sec. Admin. Comm'r, No. 1:10-cv-00038-JAW, 2011 WL 86567 (D. Me. Jan. 10, 2011) (rec. dec., aff'd Feb. 28, 2011), the ALJ failed to adopt specific moderate limitations in concentration, persistence, or pace that Drs. Stahl and Knox assessed but neglected to incorporate into their own narrative conclusions. See id. at 8-10. He asserts that, as a result of these errors, the ALJ's mental RFC determination is unsupported by substantial evidence, warranting remand. See id. at 6-10. I am unpersuaded.

         1. Fink Report

         The plaintiff notes that Dr. Fink concluded that he had “‘profound difficulty with sustained attention regulation, and mild difficulty with behavioral response inhibition or impulse control'” and made several recommendations to address his attentional difficulties. Statement of Errors at 7 (quoting Record at 317-18). Among those recommendations were the following: (i) “‘[t]o maximize his attention and memory, it will be important for [the plaintiff] to reduce environmental distractions, including social media, during work blocks and times when increased concentration is warranted[, ]'” (ii) the plaintiff “‘is likely to attend to and process information at his best when in a structured, low stimulation environment[, ]'” (iii) the plaintiff's “‘attention and retention are likely to continue to be better when he is an active participant in the learning process[, ]'” and (iv) “‘[n]ew information should be presented in short, well-organized learning trials.'” Id. at 7-8 (quoting Record at 319).

         The plaintiff contends that, in adopting the “narrative finding” by Drs. Stahl and Knox that his “cognitive deficits limited [him] to understanding and remembering simple instructions and tasks[, ]” the ALJ “failed to address any of the attentional limitations identified by Dr. Fink[.]” Id. at 8. However, as the commissioner rejoins, see Defendant's Opposition to Plaintiff's Statement of Specific Errors (“Opposition”) (ECF No. 16) at 4, Dr. Fink did not purport to assess specific work-related mental functional limitations arising from the plaintiff's attentional deficits. Neither her description of the plaintiff's difficulty with “sustained attention regulation” as “profound” nor her recommendations to remediate the impact of that difficulty, Record at 317-19, constituted a mental RFC opinion, see, e.g., Purdy v. Colvin, No. 1:15-cv-330-JDL, 2016 WL 2770520, at *3-4 (D. Me. May 13, 2016) (rec. dec., aff'd Sept. 13, 2016), aff'd, 887 F.3d 7 (1st Cir. 2018) (rejecting argument that ALJ gave short shrift to opinion of examining consultant that “it would be difficult for the [claimant] to carry any weight due to her knee problems” when that sentence could not be “translated into a specific limitation, much less a prohibition on lifting altogether”) (citations omitted); Sheldon v. Colvin, Civil No. 2:13-CV-315-DBH, 2014 WL 3533376, at *5 (D. Me. July 15, ...


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