Jeremy W. v. Social Security Administration Commissioner

          REPORT AND RECOMMENDED DECISION

          JOHN C. NIVISON, U.S. MAGISTRATE JUDGE

         On 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).

         Following my 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 May 17, 2017 decision of the Administrative Law Judge. (ALJ Decision, ECF No. 7-2.)^[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 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. (Ex. 4F.)

         After 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.)

         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).

         Discussion

         Plaintiff 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.

         A. Vocational and Neurological Assessments

         On March 10, 2017, Ms. Levesque, Rehabilitation Counselor II, summarized her vocational counseling work with Plaintiff, and reported that Plaintiff had quit the two jobs^[2]he 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.)

         In 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. ...