United States District Court, D. Maine
BARRY K. F., JR., Plaintiff
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant
REPORT AND RECOMMENDED DECISION
H. RICH III UNITED STATES MAGISTRATE JUDGE.
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
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).
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).
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).
Weighing of Opinion Evidence
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.
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.
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.
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).
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.
accordingly, is unwarranted on the basis of the ALJ's
asserted improper weighing of the opinion evidence.
Evaluation of Plaintiff's ...