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Gwendolyn L. v. Berryhill

United States District Court, D. Maine

June 11, 2019

GWENDOLYN L., 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 bases that the ALJ erred in determining her mental residual functional capacity (“RFC”) and in addressing post-hearing vocational evidence that a person with her IQ scores would not be able to perform the jobs identified by a vocational expert (“VE”) at hearing. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 12) at 3-13. I conclude that remand is warranted on the basis of the ALJ's handling of the post-hearing evidence and, accordingly, recommend that the court vacate the commissioner's decision and remand this case for further proceedings consistent herewith. I need not and do not reach the plaintiff's challenge to the determination of her mental RFC.

         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, 2018, Finding 1, Record at 17; that she had the severe impairments of degenerative disc disease and headaches, Finding 3, id.; that she had the RFC to perform a full range of work at all exertional levels but with the following nonexertional limitations: she was able to understand, remember, and apply information and focus on and complete simple work-related tasks, maintain concentration, persistence, or pace for simple work activities, manage simple social demands, adapt to routine changes and manage herself, and was limited to an environment with moderate noise, Finding 5, id. at 19; that, considering her age (41 years old, defined as a younger individual, on her alleged disability onset date, June 17, 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 she could perform, Findings 7-10, id. at 22; and that she, therefore, had not been disabled from June 17, 2013, her alleged onset date of disability, through the date of the decision, August 31, 2017, Finding 11, id. at 23-24. 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, 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. Background

         At the request of the commissioner, the plaintiff underwent a psychological review by agency examining consultant Donna M. Gates, Ph.D., on April 16, 2015, and a psychological evaluation by Dr. Gates on December 21, 2016. See Record at 527-31, 640-44. In 2015, Dr. Gates conducted a clinical interview and mental status examination, diagnosed the plaintiff with cognitive disorder, and concluded, in relevant part, that, “[b]ased on [the plaintiff's] presentation style, intellectual functioning was estimated to be in the low-average range.” Id. at 527, 530-31. She concluded that the plaintiff could “follow work rules, relate well to others, and use good judgment on the job” and “likely could manage a mild level of work-related stress and function independently on simple tasks if she were physically capable of doing so[, ]” although “she ha[d] significant issues with memory[.]” Id. at 530-31.

         In 2016, Dr. Gates noted that the plaintiff “had an unremarkable mental status examination, other than mistaking her age[, ]” with intellectual functioning again estimated to be in the low-average range “[b]ased on her presentation style[.]” Id. at 642. However, she noted that “[f]ormal testing” in the form of administration of the Wechsler Adult Intelligence Scale-IV “placed [the plaintiff] in the borderline range of intellectual ability[, ]” id. at 642-43, with a verbal comprehension index IQ of 80 and a full-scale IQ of 77, see id. at 643. She stated that the plaintiff “made a good effort across and within subtests” and that “[t]he current test results appear to be an accurate reflection of her intellectual ability.” Id. She diagnosed the plaintiff with both cognitive disorder and borderline intellectual functioning and concluded, inter alia, that her “judgment [wa]s expected to be good for jobs within her vocational ability[, ]” she had “intermittent symptoms” causing “difficulty processing information and communicating[, ]” and she may “have difficulty learning new tasks due to intermittent lapses.” Id. She also completed a separate mental RFC assessment, checking boxes indicating that the plaintiff had mild restrictions in understanding and remembering simple instructions, carrying out simple instructions, and making judgments on simple work-related decisions. See id. at 651.

         The ALJ found that the plaintiff retained the mental RFC to, among other things, understand, remember, and apply information and focus on and complete simple work-related tasks, maintain concentration, persistence, or pace for simple work activities, and adapt to routine changes. See Finding 5, id. at 19. He noted that a vocational expert (“VE”) present at the plaintiff's hearing had testified that a person with the plaintiff's age, education, work experience, and RFC could perform the representative jobs of mail sorter, Dictionary of Occupational Titles (U.S. Dep't of Labor 4th ed., rev. 1991) (“DOT”) § 209.687-026, order caller, DOT § 209.667-014, and retail marker, DOT § 209.587-034. See Id. at 22-23; see also id. at 45-46.

         At hearing, the plaintiff's counsel asked the VE what aptitudes were required for the jobs at issue. See id. at 48. The VE inquired, “Are you talking about the GOE?” Id.[2] The plaintiff's counsel responded, “Yes. General learning, yeah, just overall aptitude levels.” Id. The VE responded that for the mail sorter it was 754, for the order caller, 593, and for the retail marker, 593. See id. The plaintiff's counsel stated that he had no further questions. See id.

         At the close of hearing, the plaintiff's counsel requested and was granted an opportunity to submit a post-hearing statement. See id. at 49. Counsel submitted a letter to which he attached materials that included an affidavit of a different VE, David W. Meuse, M.S., CRC, a reprint of a journal article by Arthur R. Jensen titled Test validity: g versus the specificity doctrine, and letters dated March 28, 2014, and October 31, 2014, from psychologist Barbara J. McKim, Ph.D. See id. at 374-89.

         Mr. Meuse stated that, in his professional opinion, “a level of ability in both General Learning Ability (intelligence) and Verbal Ability, as a result of” a full-scale IQ of 77 and a verbal IQ of 80, placing a person in the 7th and 9th percentiles, respectively, in those abilities, “would be very limiting” and would rule out the mail sorter, order caller, and retail marker jobs identified by the VE at hearing, all of which require General Learning and Verbal abilities above the lowest 10th percentile. Id. at 377. He added that the numbers supplied by the VE at hearing in response to the plaintiff's counsel's question regarding the aptitudes for those three jobs were “not responsive to the question regarding aptitudes.” Id.

         Mr. Jensen wrote, “The fact that the GATB [General Aptitude Test Battery] Aptitude G is a good measure of the g factor, or general intelligence, is shown by its average correlation of 0.80 with 12 well-known standard tests of IQ[.]” Id. at 384. Dr. McKim stated that, in her opinion, “the Full Scale IQ score is apt to be most closely commensurate with general ...


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