United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
C. NIVISON U.S. MAGISTRATE JUDGE
Plaintiff Jeffery P.'s application for disability
insurance benefits under Title II and supplemental security
income benefits under Title XVI of the Social Security Act,
Defendant, the Social Security Administration Commissioner,
found that Plaintiff has severe impairments, but retains the
functional capacity to perform substantial gainful activity.
Defendant, therefore, denied Plaintiff's request for
disability benefits. Plaintiff filed this action to obtain
judicial review of Defendant's final administrative
decision pursuant to 42 U.S.C. § 405(g).
a review of the record, and after consideration of the
parties' arguments, I recommend the Court affirm the
Commissioner's final decision is the April 28, 2017,
decision of the Administrative Law Judge. (ALJ Decision, ECF
No. 9-2). The ALJ's decision tracks the familiar
five-step sequential evaluation process for analyzing social
security disability claims, 20 C.F.R. §§ 404.1520,
found that Plaintiff has severe, but non-listing-level
impairments consisting of osteoarthritis of the left hip and
degenerative joint disease of the right ankle. (ALJ Decision
¶¶ 3, 4.) The impairments, according to the ALJ, do
not deprive Plaintiff of the residual functional capacity
(RFC) to perform a subset of sedentary work. (Id.
¶ 5.) At the hearing, a vocational expert testified that
a person with Plaintiff's RFC and vocational background
could transition to work existing in substantial numbers in
the national economy; the expert identified the specific jobs
of order clerk and pari-mutuel ticket checker. (Hr'g Tr.,
ECF No. 9-2, R. 167 - 69, 171 - 72.) After considering the
evidence, the ALJ found Plaintiff not disabled for purposes
of the Social Security Act, from November 1, 2011, through
the date of his decision. (ALJ Decision ¶¶ 10 -
must affirm the administrative decision provided the decision
is based on the correct legal standards and is supported by
substantial evidence, even if the record contains evidence
capable of supporting an alternative outcome.
Manso-Pizarro v. Sec'y of HHS, 76 F.3d 15, 16
(1st Cir. 1996) (per curiam); Rodriguez Pagan v.
Sec'y of HHS, 819 F.2d 1, 3 (1st Cir. 1987).
Substantial evidence is evidence that a reasonable mind might
accept as adequate to support a finding. Richardson v.
Perales, 402 U.S. 389, 401 (1971); Rodriguez v.
Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981).
“The ALJ's findings of fact are conclusive when
supported by substantial evidence, but they are not
conclusive when derived by ignoring evidence, misapplying the
law, or judging matters entrusted to experts.”
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).
Plaintiff alleges the ALJ erred at step 2 when he found
Plaintiff's mental health issues were not severe for
vocational purposes. (Statement of Errors at 6-8.) Plaintiff
also argues the ALJ erred in his assessment of
Plaintiff's RFC in that the ALJ's finding that
Plaintiff must alternate between sitting and standing every
60 minutes is inconsistent with a limitation to sedentary
work. (Id. at 12-14.) In support of his arguments,
Plaintiff contends the ALJ judged matters entrusted to
experts and failed to weigh properly the opinion evidence
offered by certain experts. (Id. at 4-12.)
Plaintiff's mental health issues
acknowledged Plaintiff's depression diagnosis, but the
ALJ found the condition does not cause more than minimal
limitation in Plaintiff's ability to perform basic mental
work activities. (R. 12.) The ALJ found Plaintiff experiences
only mild or no limitation in each of the four areas of
mental functioning in Defendant's recently amended
regulations, 20 C.F.R. §§ 404.1520a(d)(1),
416.920a(d)(1), i.e., (1) understanding, remembering, or
applying information; (2) interacting with others; (3)
concentrating, persisting, or maintaining pace; and (4)
adapting or managing oneself.
reasoned that Plaintiff did not assert in the claim
documents, prehearing brief, or hearing testimony that he was
disabled based in part on a mental impairment. Additionally,
the ALJ found that Plaintiff had not received any mental
health treatment after the alleged onset date, and that
treating sources had not documented any complaints or
observations of ongoing psychological issues. (R. 13.)
to Plaintiff, the ALJ erred when he failed to give weight to
the July 2014 findings and report of Joseph Wojcik, Ph.D.
(Ex. 2F, ECF No. 9-7.) Plaintiff maintains that the current
application follows an earlier application that the ALJ
constructively reopened in which Plaintiff asserted a mental
impairment. (Statement of Errors at 6.) As part of the
earlier proceeding, Dr. Wojcik performed a consultative
examination of Plaintiff and assessed that Plaintiff's
report of a prior diagnosis of attention deficit
hyperactivity disorder (ADHD) was consistent with fidgety
behavior he displayed during the consultative exam. Dr.
Wojcik found no evidence of mood disorder and opined that
Plaintiff “may have difficulty with sustained effort
and working independently.” (R. 516.) The consultative
reviewing expert involved in the review of the prior
application, Mary Burkhart, Ph.D., considered Dr.
Wojcik's statement, ...