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Jeffrey P. v. Social Security Administration Commissioner

United States District Court, D. Maine

January 29, 2019

JEFFREY P., Plaintiff



         On 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).

         Following a review of the record, and after consideration of the parties' arguments, I recommend the Court affirm the administrative decision.

         The Administrative Findings

         The Commissioner's final decision is the April 28, 2017, decision of the Administrative Law Judge. (ALJ Decision, ECF No. 9-2).[1] The ALJ's decision tracks the familiar five-step sequential evaluation process for analyzing social security disability claims, 20 C.F.R. §§ 404.1520, 416.920.

         The ALJ 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 - 11.)

         Standard of Review

         A court 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.)

         A. Plaintiff's mental health issues

         The ALJ 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.

         The ALJ 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.)

         According 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)[2] 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, ...

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