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Desiree M. H. v. Berryhill

United States District Court, D. Maine

May 24, 2019

DESIREE M. H., 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”) and Supplemental Security Income (“SSI”) 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 basis that, in determining her residual functional capacity (“RFC”), the ALJ erred in evaluating both the opinion evidence and her subjective allegations. See Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 15) at 5-12. I find no 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, 416.920; 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 met the insured status requirements of the Social Security Act through December 31, 2013, Finding 1, Record at 16; that she had the severe impairments of anxiety disorder, affective disorder, and substance abuse disorder in remission, Finding 3, id. at 17; that she had the RFC to perform a full range of work at all exertional levels but was restricted from exposure to unprotected heights, could not operate dangerous machinery, was limited to performing simple, routine tasks that are not done at a production pace, such as assembly line work, could have no interaction with the public, could interact with coworkers and supervisors occasionally on an ongoing basis and frequently for brief periods, including an initial training period of up to 30 days, was precluded from telephone communication, could have no more than occasional oral communication, and was limited to making simple work-related decisions, Finding 5, id. at 19; that, considering her age (26 years old, defined as a younger individual, on her alleged disability onset date, July 1, 2011), 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 she could perform, Findings 7-10, id. at 24; and that she, therefore, had not been disabled from July 1, 2011, her alleged onset date of disability, through the date of the decision, August 25, 2017, Finding 11, id. at 25. The Appeals Council declined to review the decision, id. at 1-3, making the decision the final determination of the commissioner, 20 C.F.R. §§ 404.981, 416.1481; 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), 1383(c)(3); 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 her past relevant work. 20 C.F.R. §§ 404.1520(g), 416.920(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).

         I. Discussion

         A. Weighing of Opinion Evidence

         In evaluating the plaintiff's RFC, the ALJ explained that he gave the “greatest weight” to the May 10, 2017, opinion of agency nonexamining consultant P. Walls, M.D., Record at 22, 1457-95, [2] “significant weight” to the December 12, 2013, opinion of agency nonexamining consultant Leigh Haskell, M.D., and the July 22, 2014, opinion of agency nonexamining consultant Brian Stahl, Ph.D., id. at 22, 82-84, 110-12, “less weight” to the opinion of Royal Grueneich, Ph.D., who conducted a neurological examination of the plaintiff in December 2014, id. at 23, 786-91, and “little weight” to the December 3, 2013, opinion of agency examining consultant James R. Werrbach, Ph.D., id.at 23, 668-72.

         The plaintiff asserts that this weighing of evidence is fatally flawed primarily because the ALJ disregarded what her counsel described, at oral argument, as the most material objective evidence of record: results of objective neuropsychological testing by Dr. Grueneich that she contends corroborate severe deficits in memory and concentration noted by Dr. Werrbach. See also Statement of Errors at 8-9. The plaintiff's counsel asserted that this error was not rendered harmless by the ALJ's reliance on the Haskell, Stahl, and Walls opinions because the Grueneich opinion postdated those of Drs. Haskell and Stahl, and Dr. Walls ignored it, as a result of which those opinions cannot serve as substantial evidence of the plaintiff's mental RFC. I find no error.

         Dr. Grueneich noted that the plaintiff “show[ed] evidence of a traumatic brain injury” associated with her use of bath salts in 2011, “manifested mainly in impairment of her speech and difficulties with word finding, though she may also be exhibiting some difficulties with attention and verbal short-term memory skills.” Record at 790. He reported that the results of neuropsychological testing indicated that her “cognitive skills fall mainly in the average to low average range, ” with significant deficits in word-retrieval skills and fine motor dexterity. Id. at 789-80. He added, “[O]f note, [the plaintiff] reported that she has had problems with attention and concentration since her bath salts incident, and qualitatively, she appeared to have some lapses in attention during the current evaluation.” Id. at 790. He summarized, “The effects of the presumed vascular event in 2011 appear to be relatively focal, as the cognitive effects from this are limited mainly to word-finding difficulties (though these may also include deficits in her attention skills and some subtle deficits in verbal short-term memory skills).” Id.

         He opined:

[The plaintiff] is currently not capable of gainful employment due to the impact of her dysarthric speech, which adversely affects prospective employer[s'] views of her, and of her symptoms of depression and anxiety. However, with the exception of difficulties with word-finding and possibly also with attention, her cognitive skills are intact, and if she is able to achieve a reduction of her level of depression and anxiety, she has good potential for returning to work with assistance (e.g., through support from Vocational Rehabilitation services).

Id. at 791.

         Dr. Grueneich himself, thus, did not attribute any disability to cognitively-based difficulty with memory and concentration but, rather, to “the impact of her dysarthric speech, which adversely affects prospective employer[s'] views of her, and of her symptoms of depression and anxiety.” Id. The ALJ noted as much, observing: “Dr. Grueneich also stated that[, ] with the exception of word ...


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