United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
H. Rich III United States Magistrate Judge.
Social Security Disability (“SSD”) appeal raises
the question of whether the administrative law judge
(“ALJ”) supportably found the plaintiff capable
of performing past relevant work and, in the alternative,
performing work existing in significant numbers in the
national economy. The plaintiff seeks remand on the bases
that the ALJ ignored his learning disability and erred in
evaluating both the opinion evidence of record and his own
statements concerning his symptoms and limitations.
See Plaintiff's Itemized Statement of Errors
(“Statement of Errors”) (ECF No. 15) at 4-18. I
conclude that the ALJ's decision was based on substantial
evidence and, accordingly, recommend that the court affirm
the commissioner's decision.
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, 2018, Finding 1, Record at 13; that he
had the severe impairments of affective disorder/depression,
anxiety-related disorder/anxiety NOS (Not Otherwise
Specified), Finding 3, id.; that he had the residual
functional capacity (“RFC”) to perform a full
range of work at all exertional levels, but with the
following nonexertional limitations: he was able to
understand, remember, and carry out simple, routine tasks,
was able to make simple work-related decisions, could work in
sight of co-workers but could not perform tandem work, could
interact occasionally with supervisors but never with the
general public, and could tolerate few changes in the normal
work routine, Finding 5, id. at 16; that he was
capable of performing past relevant work as a cleaner, which
did not require the performance of work-related activities
precluded by his RFC, Finding 6, id. at 18; that, in
the alternative, considering his age (37 years old, defined
as a younger individual, on his alleged disability onset
date, February 23, 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, id. at 19;
and that he, therefore, had not been disabled from his
alleged onset date of disability, February 23, 2013, through
the date of the decision, June 28, 2016, Finding 7,
id. at 20. 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; Dupuis v. Sec'y of Health &
Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).
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).
reached 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. § 404.1520(f);
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). 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. §
404.1520(f); Social Security Ruling 82-62 (“SSR
82-62”), reprinted in West's Social Security
Reporting Service Rulings 1975-1982, at 813.
alternative, 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); Yuckert, 482 U.S. at 146 n.5;
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).
statement of errors also implicates Step 2 of the sequential
evaluation process. Although a claimant bears the burden of
proof at Step 2, it is a de minimis burden, designed
to do no more than screen out groundless claims. McDonald
v. Sec'y of Health & Human Servs., 795 F.2d
1118, 1124 (1st Cir. 1986). When a claimant produces evidence
of an impairment, the commissioner may make a determination
of non-disability at Step 2 only when the medical evidence
“establishes only a slight abnormality or [a]
combination of slight abnormalities which would have no more
than a minimal effect on an individual's ability to work
even if the individual's age, education, or work
experience were specifically considered.” Id.
(quoting Social Security Ruling 85-28).
Evidence of Learning Disability
plaintiff contends that the ALJ improperly ignored special
education records evidencing a learning disability.
See Statement of Errors at 5. Specifically, he
argues that the ALJ should have found a severe learning
disability at Step 2, see id. at 3, which would have
undermined her mental RFC determination and, in turn, her
reliance on vocational expert testimony predicated on the
flawed mental RFC. See Id. at 16-18. The plaintiff
points out that the agency nonexamining consultants on whose
opinions the ALJ relied, Brian Stahl, Ph.D., and David R.
Houston, Ph.D., did not see his special education records,
which were submitted after they completed their assessments.
See id. at 3 n.1.
commissioner argues that the plaintiff's special
education records are cumulative of records from his treating
providers that Drs. Stahl and Houston did review addressing
the effects of his learning disability. See
Defendant's Opposition to Plaintiff's Itemized
Statement of Errors (“Opposition”) (ECF No. 19)
at 5-6 (citing Strout v. Astrue, Civil No.
08-181-B-W, 2009 WL 214576, at *8-9 (D. Me. Jan. 28, 2009)
(rec. dec., aff'd Mar. 5, 2009) (ALJ did not err
in relying on opinions of agency nonexamining consultants who
had not had benefit of review of full record when unseen
records were cumulative of those they did see)). As a result,
the commissioner asserts, Drs. Stahl and Houston factored
those effects into their evaluations. See Id. at 6.
may rely on the opinions of agency nonexamining consultants
who have not seen later-submitted evidence when that evidence
does not “call into question their
conclusions[.]” Anderson v. Astrue, No.
1:11-cv-476-DBH, 2012 WL 5256294, at *4 (D. Me. Sept. 27,
2012) (rec. dec., aff'd Oct. 23, 2012),
aff'd, No. 13-1001 (1st Cir. June 7, 2013).
Here, the later-submitted evidence (the plaintiff's
special education records) was created during his grade
school and high school years, predating his alleged onset
date of disability by nearly 20 years or more. See
e.g. Record at 213-14 (May 1987), 247-48 (March 1985),
374-77 (1991-92). Moreover, his treating providers, at least
some of whose records Drs. Stahl and Houston reviewed, noted
his history of having a learning disability. See, e.g.,
Id. at 59, 61, 71, 522, 530.
although the ALJ did not explicitly mention the
plaintiff's special education records, she acknowledged
that he reported “being easily confused because of a
learning disability with a loss of focus from fatigue and
racing thoughts[, ]” id. at 14, and she
included the special education records in the List of
Exhibits appended to her decision, see id. at 23,
creating a presumption that she considered them, see,
e.g., Chapman v. Colvin, No. 1:16-cv-00231-JDL, 2016 WL
7441609, at *3 (D. Me. Dec. 26, 2016) (rec. dec.,
aff'd Feb. 10, 2017) (inclusion of evidence in a
List of Exhibits creates a presumption that ALJ considered
record, the plaintiff's later-submitted evidence (his
special education records) has not called into question the
conclusions of the agency nonexamining consultants.
even assuming arguendo that the plaintiff had shown
error in the ALJ's reliance on the opinions of agency
nonexamining consultants who did not have the benefit of
review of his special education records and/or her own
failure to consider those records adequately, he fails to
demonstrate harmful error.
plaintiff observes that his special education records show
that his “verbal I.Q. was tested at 78, which falls in
the 7th percentile.” Statement of Errors at
4 (citations omitted). He contends that ignoring this
evidence was not harmless error because, according to the
Dictionary of Occupational Titles (U.S. Dep't of
Labor 4th ed., rev. 1991) (“DOT”), the jobs
identified by the vocational expert at the hearing all
“require a verbal aptitude above the lowest ten
percent[.]” Id. at 16.
assuming that the plaintiff's characterization of his
childhood special education testing as it relates to the
DOT's terms is correct, the plaintiff's subsequent
work history is fatal to his argument. While, as the
plaintiff's counsel observed at oral argument, “an
IQ is presumed to remain stable over time[, ]” that
presumption is rebuttable. Harthorne v. Astrue,
Civil No. 08-120-B-W, 2008 WL 4937806, at *8 (D. Me. Nov. 16,
2008) (rec. dec., aff'd Dec. 8, 2008).
case, the plaintiff's work history rebuts his restrictive
IQ score. The ALJ found that the plaintiff was capable of
returning to past relevant work as a cleaner, DOT §
381.687-014, both as he actually performed it and as it is
generally performed, and, in the alternative, that he was
capable of performing other work existing in significant
numbers in the national economy, including the representative
jobs of laundry worker, id. § 361.685-018,
conveyor feeder, id. § 921.686-014, and garbage
collector, id. § 955.687-022. See
Record at 18-20.
his learning disability, the plaintiff worked for the years
leading up to his alleged onset date of disability as a
cleaner, see Id. at 134-35, a job that requires a
verbal aptitude above the bottom 10th percentile,
see DOT § 381.687-014, as do all three of the
jobs on which the ALJ relied in the alternative at Step 5,
see id. §§ 361.685-018, 921.686-014,
plaintiff, accordingly, fails to demonstrate his entitlement
to remand on the basis of this point of error.
Treating Providers' Opinion Evidence
plaintiff next complains that the ALJ erred in ignoring
Global Assessment of Functioning (“GAF”) scores
of 47 assessed by treating nurse practitioners Donna R. Huff,
PMH-NP, and Heather Bowker, PMH-NP, and refusing,
“without an adequate reason[, ]” to give the
mental RFC opinion of treating nurse practitioner Marilynn
Petit, PMH-NP, any significant weight. Statement of Errors at
7-9, 17-18. He adds that the ALJ transgressed Social
Security Ruling 16-3p (“SSR 16-3p”) in failing to
“focus on the consistent symptoms of learning
disability, leading to severe anxiety ...