United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
C. NIVISON, U.S. MAGISTRATE JUDGE
Plaintiff Jeremy W.'s application for supplemental
security income benefits under Title XVI of the Social
Security Act, Defendant, the Social Security Administration
Commissioner, found that Plaintiff has a severe impairment,
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).
my review of the record and after consideration of the
parties' arguments, I recommend the Court affirm the
Commissioner's final decision is the May 17, 2017
decision of the Administrative Law Judge. (ALJ Decision, ECF
No. 7-2.) 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 a severe personality disorder that
will cause more than minimal limitations in Plaintiff's
capacity for work activity, but is not of sufficient severity
to compel a finding of disability under the Listing of
Impairments, Appendix 1 to 20 C.F.R. Part 404, Subpart P.
More specifically, the ALJ found that Plaintiff is limited to
no more than medium exertion involving simple routine tasks,
provided he does not have to collaborate with others and does
not work with the general public. (ALJ Decision ¶¶
2-4.) Among other evidence considered by the ALJ were the
expert opinions of Disability Determination Services
consultants Robert Maierhofer, Ph.D. (Ex. 1A) and Mary
Burkhart, Ph.D. (Ex. 3A), which opinions the ALJ accorded
“great weight” in reaching her RFC finding. (R.
22.) The ALJ also gave great weight to the opinion of Donna
Gates, Ph.D., who provided a consultative examination report.
considering the evidence, including the testimony of a
vocational expert, the ALJ determined that Plaintiff would be
able to satisfy the demands of the specific medium-exertion
jobs of floor cleaner, bus/truck washer, and landscape
laborer, which jobs exist in substantial numbers. (ALJ
Decision ¶ 9, R. 23.) Given the availability of jobs in
the national economy that Plaintiff can perform, the ALJ
found Plaintiff not disabled for purposes of the Social
Security Act. (R. 24.)
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).
argues the ALJ did not properly assess the expert opinion
evidence and should have given more weight to the opinion of
vocational expert Marie Levesque.
Vocational and Neurological Assessments
March 10, 2017, Ms. Levesque, Rehabilitation Counselor II,
summarized her vocational counseling work with Plaintiff, and
reported that Plaintiff had quit the two jobshe obtained
through vocational services “due to issues with
coworkers and/or supervisors.” (Ex. 27E, ECF No. 7-6.)
According to Ms. Levesque, Plaintiff “demonstrated
himself to be unable to maintain employment for any length of
time, ” despite on-the-job support, and needed to
develop the “soft skills that are necessary to be
successful on the job.” (Id.)
November 2014, Ms. Levesque referred Plaintiff to Jason
Merrin, Ph.D., Psy.D., for a neurological consultation. (Ex.
2F, R. 693.) Dr. Merrin's report, dated February 26,
2015, reflects that on multiple tests, Plaintiff generally
achieved “average” scores. Dr. Merrin
characterized Plaintiff as having a limited fund of
information; fair-to-poor insight, judgment and impulse
control; a tendency to be distrustful and alienated in
relationships (R. 696-97); and “significant
externalizing, acting-out behavior, which is likely to have
gotten him into difficulties, ” including
“difficulties with individuals in positions of
authority (R. 701). Dr. Merrin noted that he forgot to
administer certain “processing subtests” to
Plaintiff, and opined that, as a result, the “validity
and reliability of the cognitive portion of the evaluation
and of the overall findings” was reduced. (R. 697.) Dr.
Merrin's diagnostic impression was “antisocial
personality disorder, ” and “bipolar II disorder
with mood-congruent psychotic features.” (R. 703.) Dr.
Merrin did not consider Plaintiff's intellect to pose a
difficulty, but he determined that mood and behavior
dysregulation were of primary concern. ...