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Barry K. F v. Berryhill

United States District Court, D. Maine

May 28, 2019

BARRY K. F., JR., 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 basis that, in determining his residual functional capacity (“RFC”), the ALJ erred in evaluating both the opinion evidence and his subjective allegations. See Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 13) at 6-10. 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 met the insured status requirements of the Social Security Act through December 31, 2014, Finding 1, Record at 18; that, through his date last insured for benefits (“DLI”), he had the severe impairments of personality disorder and anxiety disorder, Finding 3, id.; that, through his DLI, he had the RFC to perform medium work as defined in 20 C.F.R. § 404.1567(c) except that, inter alia, on a sustained, competitive basis, he could understand and remember simple instructions, use judgment in making simple work-related decisions, respond appropriately to coworkers, supervisors, and usual work situations, not involving the public, and adapt to routine changes in the ordinary work setting, Finding 5, id. at 20; that, through his DLI, considering his age (45 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 23; and that he, therefore, had not been disabled from October 15, 2009, his alleged onset date of disability, through December 31, 2014, his DLI, Finding 11, id. at 24. 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; 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).

         I. Discussion

         A. Weighing of Opinion Evidence

         In evaluating the plaintiff's RFC, the ALJ explained that he found a May 12, 2015, disability ratings decision by the United States Department of Veterans Affairs (“VA”) of “minimal evidentiary value” and that he “remain[ed] in accord with the more reliable and consistent” analyses of agency nonexamining consultants on reconsideration, including, as relevant here, the March 5, 2014, opinion of John J. Warren, Ed.D. Record at 22-23; see also id. at 145-49, 412-25. He did not separately address a February 12, 2015, evaluation by VA clinical psychologist Kirsten Milliken-Zumel, Ph.D., that formed a basis for the VA's award of disability benefits. See id. at 22-23; see also id. at 412-25, 1331-43.

         The plaintiff contends that the ALJ erred in (i) discounting the VA disability ratings decision solely on the basis of differences between the VA's disability determination regulations and those of the commissioner, (ii) failing to address the Milliken-Zumel opinion, and (iii) presuming the correctness of the opinions of agency nonexamining consultants who did not have the benefit of review of the VA disability ratings decision or the Milliken-Zumel opinion. See Statement of Errors at 6-8. None of these points provides a sufficient basis for remand.

         On the first point, as the plaintiff observes, see id. at 6, in Genness-Bilecki v. Colvin, No. 1:15-cv-387-JHR, 2016 WL 4766229 (D. Me. Sept. 13, 2016), this court held that an ALJ's “out of hand” dismissal of a VA disability ratings decision “on the sole basis that the standards differ” warranted remand, see Genness-Bilecki, 2016 WL 4766229, at *3-4. However, that is not what happened here. The ALJ relied not only on a detailed comparison of VA and Social Security Administration standards but also on a finding that “the contemporaneous treatment records do not verify the [plaintiff] as unable to work in any capacity[, ]” as a result of which he did “not concur with the VA award of compensation[.]” Record at 22.

         On the second point, as the commissioner argues, see Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 17) at 9, the ALJ impliedly addressed the Milliken-Zumel opinion, explaining that records postdating the agency nonexamining consultants' review contained no “persuasive, clinical affirmation” that the plaintiff was “incapacitated by his impairments[.]” Record at 22. In so stating, he cited Exhibits 14F and 15F, which contain duplicate copies of the Milliken-Zumel opinion. See id.; see also id. at 1331-43, 1505-16. In any event, as the commissioner argues in the alternative, see Opposition at 8, this court has held that a failure to articulate the weight given to an opinion of a one-time examining consultant can be harmless error, see, e.g., Smythe v. Astrue, No. 2:10-cv-251-GZS, 2011 WL 2580650, at *5 (D. Me. June 28, 2011) (rec. dec., aff'd July 21, 2011). That is the case here, the plaintiff having failed to demonstrate any prejudicial error with respect to the complained-of omission, see Statement of Errors at 7-8; Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (a claimant bears the burden to demonstrate harmful error in an agency's determination).

         On the third and final point, as the commissioner notes, see Opposition at 11, an ALJ may rely on the opinions of agency nonexamining consultants who have not seen later-submitted evidence when that evidence does not “call into question their conclusions[.]” Anderson v. Astrue, No. 1:11-cv-476-DBH, 2012 WL 5256294, at *4 (D. Me. Sept. 27, 2012) (rec. dec., aff'd Oct. 23, 2012), aff'd, No. 13-1001 (1st Cir. June 7, 2013). See also, e.g., Strout v. Astrue, Civil No. 08-181-B-W, 2009 WL 214576, at *8-9 (D. Me. Jan. 28, 2009) (rec. dec., aff'd Mar. 5, 2009) (ALJ did not err in relying on opinions of agency nonexamining consultants who had not had benefit of review of full record when unseen records were cumulative of those they did see). The ALJ deemed the evidence postdating the Warren opinion cumulative, see Record at 22-23, and the plaintiff points only to the VA disability ratings decision and the Milliken-Zumel opinion as demonstrating otherwise, see Statement of Errors at 7-8. However, he fails to explain how that evidence undermined the ALJ's reliance on the Warren opinion. See id.

         Remand, accordingly, is unwarranted on the basis of the ALJ's asserted improper weighing of the opinion evidence.

         B. Evaluation of Plaintiff's ...


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