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Patrick S. v. Berryhill

United States District Court, D. Maine

June 13, 2019

PATRICK S., 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”), Supplemental Security Income (“SSI”), and Child's Disability Benefits (“CDB”) 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's mental residual functional capacity (“RFC”) determination is unsupported by substantial evidence and that the ALJ erred in failing to consider, or even exhibit, a vocational expert's post-hearing affidavit. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 11) at 3-15. I find no harmful 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 September 30, 2013, Finding 1, Record at 19; that he had the severe impairments of personality disorder, attention deficit hyperactivity disorder (“ADHD”), and substance abuse disorder in remission, Finding 4, id.; that he had the RFC to perform a full range of work at all exertional levels but with the following nonexertional limitations: he was limited to performing simple, routine tasks, could not interact with the public as part of his job duties, could have no more than occasional interaction with co-workers on an ongoing basis but could have brief periods of more intensive interaction, including frequent interaction during an initial training period lasting up to 30 days, and was limited to making simple work-related decisions, Finding 6, id. at 20-21; that, considering his age (21 years old, defined as a younger individual, on his alleged disability onset date, January 1, 2012), 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 8-11, id. at 26; and that he, therefore, had not been disabled from January 1, 2012, his alleged onset date of disability, through August 29, 2017, the date of the decision, Finding 12, id. at 28. The Appeals Council declined to review the decision, id. at 1-4, 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).[2]

         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 his 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. Mental RFC

         The plaintiff first contends that the ALJ's mental RFC determination is unsupported by substantial evidence in three respects: that he (i) relied on opinion evidence that was materially incomplete because it predated an August 2016 evaluation by Luke Douglass, Ph.D., (ii) impermissibly construed raw medical evidence in determining that the plaintiff could briefly tolerate frequent interaction with co-workers, including for purposes of an initial training period, and (iii) impermissibly construed raw medical evidence in evaluating the plaintiff's mental impairments pursuant to recently revised versions of the so-called “paragraph B criteria.” See Statement of Errors at 3-11. Remand is unwarranted on any of these bases.

         1. Import of Douglass Evaluation

         Dr. Douglass authored a report dated August 19, 2016, of a mental evaluation he performed pursuant to an order of the Maine Superior Court to “assist with diagnostic clarification and provide associated treatment recommendations” in connection with then-pending Class D and Class E criminal charges against the plaintiff. Record at 663. Based on an interview of the plaintiff, contacts with his parents, the administration of two psychological tests, including the Minnesota Multiphasic Personality Inventory-II RF (“MMPI”), and a review of materials including treatment notes and jail records, see id. at 664, Dr. Douglass concluded:

From a diagnostic perspective, findings suggest that [the plaintiff]'s presentation is most consistent with an interface between his ADHD, his severe substance abuse problem, and a personality based disorder with cluster B traits. Salient symptoms include his severe substance abuse, history of aggression, impulsivity, lack of remorse, disregard for societal norms, low frustration tolerance, and pronounced tendency to externalize responsibility. [The plaintiff] manifests many of the core characteristics of ADHD, including problems with attention and concentration, impulsivity, inability to follow through on tasks, and severe problems with organization, planning and self-regulation of behavior.

Id. at 672. However, Dr. Douglass described his findings with respect to the presence of an anxiety-based disorder as “mixed[, ]” noting that, rather than reflecting any elevations of anxiety, the results of MMPI testing indicated that the plaintiff's “profile was consistent with an impulsive and sensation seeking individual who displays antisocial behaviors when feeling bored.” Id. at 672-73. He stated, “Thus, it may be that [the plaintiff]'s endorsement of severe anxiety could also represent a justification and rationalization for underfunctioning.” Id. at 673.

         The ALJ found that, while Dr. Douglass did not provide an opinion, “his narrative discussion and clinical testing are supportive of the limitations posed in the [RFC].” Id. at 25. He elaborated:

. . . I considered [Dr. Douglass's] analysis during the assessment of the [plaintiff]'s [RFC] and included some significant social limitations. However, the discrepancy between the clinical testing and [the plaintiff's] anxiety related complaints do[es] not support greater limitations. Thus, I find [Dr. Douglass's] narrative discussion persuasive, especially considering he had the opportunity to examine the [plaintiff] and perform tests.

Id. (citation omitted).

         The ALJ afforded “great weight” to the 2015 RFC assessments of two agency nonexamining consultants, David R. Houston, Ph.D., and Robert Maierhofer, Ph.D., “who opined that the [plaintiff] could understand and remember simple instructions, carry out simple tasks, interact appropriately with co-workers and supervisors, and adapt to simple, routine changes.” Id. at 24, 97-99 (April 29, 2015, Houston assessment), 133-35 (November 18, 2015, Maierhofer assessment). He explained that Drs. Houston and Maierhofer had reviewed the available evidence through November 18, 2015, including an April 21, 2015, report of agency examining consultant Donna R. Gates, Ph.D., and that “the additional evidence submitted after their review is not supportive of more significant limitations because the [plaintiff] has not alleged any new impairments and the objective clinical findings support stable findings.” Id. at 24. He added, “Nevertheless, I have included some additional limitations in the [RFC] to account for the [plaintiff]'s subjective complaints of worsening symptoms and the treating source opinions submitted after their review.” Id. (citations omitted).

         The ALJ afforded “great weight” to Dr. Gates' April 21, 2015, opinion that the plaintiff “might have some difficulty relating well to others on the job due to anxiety, social avoidance, and panic features” but “could manage a mild level of stress in a work setting, ha[d] adequate judgment, and could follow work related rules.” Id. He explained that he found that opinion “persuasive” because, among other reasons, it was consistent with other opinions of record that noted the plaintiff's anxiety-related symptoms but found that he could perform simple tasks. See id.

         The ALJ gave “partial weight” to opinions of the plaintiff's treating nurse practitioner, Cheryl Drda, MSN, PMHNP-BC, set forth in an undated letter and in two forms dated June 2, 2017 (a mental RFC questionnaire and a medical source statement of ability to perform mental work-related activities). See id. at 24-25, 676, 946-53.[3] He explained that he gave “little weight” to NP Drda's opinions insofar as she found that the plaintiff was unable to participate in community service and would miss one day of work per month, but otherwise deemed them “more consistent with the evidence of record.” Id. at 24. He noted that NP Drda had indicated that the plaintiff was “precluded from performing complex tasks, could perform simple tasks[, ] and [could] complete a normal workday and workweek without interruptions from psychological based symptoms.” Id. at 24-25. He added that he gave “great weight” to NP Drda's finding that the plaintiff had only mild to moderate limitations in the “paragraph B” criteria, which he deemed “consistent with [NP Drda's] own therapy notes, the [plaintiff]'s improvement on medication, and his mild mental status examination findings.” Id. at 25.

         The ALJ, finally, gave “little weight” to a September 22, 2016, opinion of Dr. Houston indicating, for purposes of assessment of the plaintiff's eligibility for MaineCare, that his mental impairments met two of the so-called “Listings, ” Appendix 1 to 20 C.F.R. Part 404, Subpart P, ...


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