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Jason H. v. Berryhill

United States District Court, D. Maine

November 4, 2018

JASON H., Plaintiff
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant


          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 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.

         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, 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).

         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 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.

         In the 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).

         The 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).

         I. Discussion

         A. Evidence of Learning Disability

         The 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.

         The 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. I agree.

         An ALJ 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.[2]

         And, 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 that evidence).[3]

         On this record, the plaintiff's later-submitted evidence (his special education records) has not called into question the conclusions of the agency nonexamining consultants.

         Finally, 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.

         The 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.

         Even 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).

         In this 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.

         Despite 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, 955.687-022.[4]

         The plaintiff, accordingly, fails to demonstrate his entitlement to remand on the basis of this point of error.

         B. Treating Providers' Opinion Evidence

         The 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.[5] 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 ...

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