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Davis B. v. Berryhill

United States District Court, D. Maine

February 8, 2019

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

          REPORT AND RECOMMENDED DECISION [1]

          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 work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that the ALJ lacked substantial evidence in support of his Step 3 finding that the plaintiff's impairments did not meet or equal any of the so-called “Listings, ” Appendix 1 to 20 C.F.R. Part 404, Subpart P, and his Step 4 determination of the plaintiff's residual functional capacity (“RFC”), undermining his Step 5 finding of non-disability, and failed to appropriately weigh and consider the opinion evidence of record. See Plaintiff's Statement of Errors (“Statement of Errors”) (ECF No. 9) at 3. I find no reversible error 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's date last insured (“DLI”) for SSD benefits was December 31, 2015, Finding 1, Record at 18; that, through his DLI, he had the severe impairments of generalized anxiety disorder, attention deficit disorder, impulse control disorder, and substance use disorder, Finding 3, id.; that, through his DLI, he had no impairment or combination of impairments that met or medically equaled in severity any of the Listings, Finding 4, id.; that, through his DLI, he had the RFC to perform a full range of work at all exertional levels but with the following nonexertional limitations: he could not work near hazards such as unprotected heights and dangerous machinery and could perform simple, routine, repetitive tasks that did not involve interaction with the general public or more than incidental (i.e., up to one-sixth of an eight-hour workday) interaction with co-workers and could adapt to occasional changes in work processes, Finding 5, id. at 19; that, through his DLI, considering his age (26 years old, defined as a younger individual, on his DLI), 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 7-10, id. at 22; and that he, therefore, had not been disabled at any time from April 14, 2013, his alleged onset date of disability, through December 31, 2015, his DLI, Finding 11, id. at 23. The Appeals Council declined to review the decision, id. at 1-4, 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 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); 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).

         The statement of errors also implicates Steps 3 and 4 of the sequential evaluation process. At Step 3, a claimant bears the burden of proving that his impairment or combination of impairments meets or equals a listing. 20 C.F.R. § 404.1520(d); Dudley v. Sec'y of Health & Human Servs., 816 F.2d 792, 793 (1st Cir. 1987). To meet a listing, the claimant's impairment(s) must satisfy all criteria of that listing, including required objective medical findings. 20 C.F.R. § 404.1525(c)(3). To equal a listing, the claimant's impairment(s) must be “at least equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R. § 404.1526(a).

         At Step 4 of the sequential evaluation process, the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. § 404.1520(f); Yuckert, 482 U.S. at 146 n.5. 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.

         I. Discussion

         A. Asserted Step 3 (Listings) Error

         At Step 3, the ALJ found that, through the plaintiff's DLI, his mental impairments, considered singly or in combination, did not meet or medically equal the criteria of then-applicable Listings 12.02 (organic mental disorders), 12.04 (affective disorders), and 12.09 (substance addiction disorders). See Record at 18-19.[2]

         He determined that the plaintiff's impairments did not satisfy the “paragraph B” requirements of those Listings because he had only mild restriction in activities of daily living, moderate difficulties in social functioning and in concentration, persistence, or pace, and no episodes of decompensation that were of extended duration. See id. He explained:

[I]n psychological evaluations conducted by [agency examining consultant] Donna Gates, Ph.D., in October 2013 and January 2015, the [plaintiff] indicated that he had no problems with daily activities. Treating and examining sources have usually described [him] as polite, pleasant, socially appropriate and cooperative. Although he has appeared at times to have deficiencies of attention and concentration, he has reported improvement in those areas when he takes prescribed medication. The evidence does not support a finding that he is markedly limited with respect to concentration, persistence or pace. He has not required inpatient or intensive outpatient treatment for mental illness.

Id. at 19 (citations omitted) He added that the evidence failed to establish the presence of the “paragraph C” criteria because the plaintiff “would not have been expected to decompensate if faced with even a minimal increase in mental demands and was not unable to function outside of the area of his home or some other highly supportive living arrangement.” Id.

         The plaintiff complains that the ALJ “populated” these Listings “absent any direction from any expert medical source.” Statement of Errors at 6. He adds that the ALJ further erred in failing to address “paragraph A” of the Listings or to consider two additional pertinent Listings, ...


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