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Eugene A. v. Berryhill

United States District Court, D. Maine

June 5, 2019

EUGENE A., 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 past relevant work as a cashier and, in the alternative, performing other work existing in significant numbers in the national economy. The plaintiff argues that the ALJ erred in (i) failing to determine the frequency of his epileptic seizures and resulting lost time from work, (ii) making an impermissible lay judgment regarding his ability to interact with the public, (iii) giving weight to the opinions of two medical experts without explaining why she failed to adopt their limitations in standing, walking, lifting, carrying, stooping, and/or reaching, (iv) relying on the opinions of experts who had assessed his mental impairments pursuant to outdated “paragraph B” criteria in determining his mental residual functional capacity (“RFC”), and (v) relying on the plaintiff's ability to perform jobs that the Dictionary of Occupational Titles (U.S. Dep't of Labor 4th ed., rev. 1991) (“DOT”) indicates do not comport with the mental RFC she assessed. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 15) at 4-19. 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, 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 March 31, 2018, Finding 1, Record at 17; that he had the severe impairments of epilepsy, lumbar spine degenerative disc disease, mood disorder, and anxiety disorder, Finding 3, id.; that he had the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that he could occasionally climb stairs, ramps, ladders, ropes, and scaffolds, occasionally balance, stoop, kneel, crouch, and crawl, could not work at unprotected heights or with dangerous moving equipment, could not drive a commercial vehicle, needed to avoid tasks involving a variety of instructions or tasks, but was able to understand to carry out simple one- and two-step instructions and detailed but uninvolved written or oral instructions involving a few concrete variables in or from standardized situations, and could not work in constant contact with the public, Finding 5, id. at 21; that he was capable of performing past relevant work as a cashier II, which did not require the performance of work-related activities precluded by his RFC, Finding 6, id. at 32; that, in the alternative, considering his age (44 years old, defined as a younger individual, on his alleged disability onset date, July 25, 2013), 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, id. at 32-33; and that he, therefore, had not been disabled from July 25, 2013, his alleged onset date of disability, through August 1, 2017, the date of the decision, Finding 7, id. at 33-34. 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 4 of the sequential evaluation process, at which stage the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). At this step, the commissioner must make findings of the plaintiff's RFC and the physical and mental demands of past work and determine whether the plaintiff's RFC would permit performance of that work. 20 C.F.R. §§ 404.1520(f), 416.920(f); Social Security Ruling 82-62 (“SSR 82-62”), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.

         In the alternative, 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), 416.920(g); Yuckert, 482 U.S. at 146 n.5; 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. Frequency of Seizures

         The plaintiff first contends that, in violation of Social Security Ruling 96-8p (“SSR 96-8p”), which requires that an ALJ specify each element of an RFC, the ALJ failed to assess the frequency of his epileptic seizures and the amount of time that he reasonably could be expected to miss work as a result. See Statement of Errors at 4-5, 8-9. He asserts that, although the vocational expert (“VE”) present at his hearing testified that some employers would not be willing to deal with seizures in the workplace, the VE did not explain the extent to which the condition would limit or preclude the four jobs on which the ALJ relied at Steps 4 and 5 (cashier, flagger, fast-food worker, and laundry folder), undermining her reliance on those jobs. See id. at 8-9.

         I find no error. As the commissioner observes, see Defendant's Opposition to Plaintiff's Itemized Statement of Errors (“Opposition”) (ECF No. 16) at 2-3, the ALJ adopted the July 2015 physical RFC opinion of agency nonexamining consultant Donald Trumbull, M.D., and gave “great weight with some modification” to the hearing testimony of independent medical expert Alvin Stein, M.D., Record at 29-30, both of whom considered the frequency of the plaintiff's seizures. Dr. Trumbull stated that he “could find no objective evidence in [the] MER [medical evidence of record] to show that seizures have not been controlled since [a] June 2014 medication change[, ]” id. at 198, and Dr. Stein testified that hospital records documented that the plaintiff had experienced seizures at a rate of less than once a month and that he had at times been noncompliant with his treatment regimen, which would increase the frequency of his seizures, see id. at 48-49. While both Drs. Trumbull and Stein assessed certain limitations related to the plaintiff's epilepsy, including a ban against driving and the operation of dangerous machinery, neither assessed a limitation of missed time from work. See id. at 57-58, 197-99.

         As the commissioner argues, see Opposition at 3, the ALJ's reliance on these expert assessments satisfied her obligation pursuant to SSR 96-8p, see, e.g., Rigby v. Astrue, No. 1:11-cv-110-JAW, 2012 WL 282988, at *3 (D. Me. Jan. 30, 2012) (rec. dec., aff'd Feb. 21, 2012) (an ALJ “satisfies SSR 96-8p when assessment of [an] RFC is based, in part, on [a] state agency examiner's function-by-function analysis”) (citation and internal quotation marks omitted).[2]

         B. Public Contact

         The plaintiff next seeks remand on the basis that the ALJ's finding that he could not work in constant contact with the public is unsupported by substantial evidence. See Statement of Errors at 5-6. I find no harmful error.

         The ALJ stated that, although she gave partial weight to the opinions of agency nonexamining consultants David R. Houston, Ph.D., and Leigh Haskell, Ph.D., she did not adopt their finding that the plaintiff could not work with the public, “as the evidence of record d[id] not support this more restrictive limitation.” Record at 28 (citation omitted). She gave less weight to an earlier April 2014 mental RFC assessment by Dr. Haskell, which she ...


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