United States District Court, D. Maine
WALTER J. S., JR., Plaintiff
ANDREW M. SAUL, Commissioner of Social Security,  Defendant
MEMORANDUM DECISION 
H. Rich III, United States Magistrate Judge.
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 failed to (i) find a severe cognitive disorder,
(ii) properly evaluate whether his seizure disorder or
cognitive disorder met or equaled any of the so-called
“Listings, ” Appendix 1 to 20 C.F.R. Part 404,
Subpart P, or (iii) properly assess his residual functional
capacity (“RFC”). See Statement of
Specific Errors (“Statement of Errors”) (ECF No.
11) at 3-18. I agree that the ALJ erred in failing to find a
severe cognitive disorder, and that the error was not
harmless. On that basis, I vacate the commissioner's
decision and remand this case for further proceedings
consistent herewith. I need not and do not reach the
plaintiff's additional points of error.
to the commissioner's sequential evaluation process, 20
C.F.R. § 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 had the
severe impairments of status post surgery for brain tumor,
seizure disorder, bipolar disorder/depression, anxiety, and
post-traumatic stress disorder (“PTSD”), Finding
2, id. at 12; that he had no impairment or
combination of impairments that met or medically equaled in
severity any of the Listings, Finding 3, id. at 13;
that he had the RFC to perform a full range of work at all
exertional levels but could not climb ladders, ropes, or
scaffolds, needed to avoid hazards such as moving machinery,
unprotected heights, sharp objects, water or electrical
hazards, and operation of hazardous machines including motor
vehicles, and was capable of simple, unskilled work in a
low-stress job involving only occasional decisionmaking, only
occasional changes in the work setting, no contact with the
public, only occasional contact with supervisors or
coworkers, and no tandem tasks, Finding 5, id. at
15; that, considering his age (22 years old, defined as a
younger individual, on the date his application was filed,
June 26, 2015), 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 6-9,
id. at 24; and that he, therefore, had not been
disabled from June 26, 2015, the date his application was
filed, through the date of the decision, November 8, 2017,
Finding 10, id. at 25. 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. § 416.1481; 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. § 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).
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. § 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).
statement of errors also implicates Step 2 of the sequential
evaluation process. Although a claimant bears the burden of
proof at Step 2, it is a de minimis burden, designed
to do no more than screen out groundless claims. McDonald
v. Sec'y of Health & Human Servs., 795 F.2d
1118, 1124 (1st Cir. 1986). When a claimant produces evidence
of an impairment, the commissioner may make a determination
of non-disability at Step 2 only when the medical evidence
“establishes only a slight abnormality or [a]
combination of slight abnormalities which would have no more
than a minimal effect on an individual's ability to work
even if the individual's age, education, or work
experience were specifically considered.” Id.
(quoting Social Security Ruling 85-28).
plaintiff alleges disability commencing on January 5, 2014,
when he first experienced a seizure and fell from a roof
while shoveling snow. See Record at 10, 50, 453.
Diagnostic studies revealed the existence of a brain tumor,
which was surgically removed on February 12, 2014. See
id. at 724, 726. Although the plaintiff continued to
take prescribed anticonvulsant medication following his
surgery, his seizures persisted, and he consulted a
neurologist in August 2014. See id. at 493, 574-77.
Despite ongoing treatment by his neurologist, the plaintiff
continued to experience seizures through October 2015.
See id. at 836.
wake of his surgery, the plaintiff also began to experience
changes in mood and ability to function. See id. at
538-39, 574-75. He underwent a psychosocial evaluation in
February 2015 and a psychological evaluation in April 2015,
see id. at 538, 795, and was diagnosed with
“bipolar and related disorder due to an associated
medical condition, adjustment disorder with depressed mood,
and generalized anxiety disorder” with an apparent
“schizoid/schizotypal personality trait” and a
possible diagnosis of PTSD, id. at 797.
to the hearing, the ALJ also ordered a psychological
consultative examination to include, inter alia, (i)
administration of a WAIS-IV test, (ii) comment on any noted
memory or neurological deficits, and (iii) a medical source
statement (“MSS”). See id. at 937.
Agency examining consultant A.J. Butler, Ed.D., conducted
that evaluation on August 17, 2017. See id. at
937-43. She noted that, “[o]n the WAIS-IV, a general
measure of intelligence, [the plaintiff] obtained a Verbal
Comprehension Index of 83, a Perceptual Reasoning Index of
60, and a Full Scale IQ of 74[, ]” with his full-scale
IQ falling “within the borderline classification of
intelligence significantly below adequate average
development.” Id. at 941. She added,
“Analysis of [the plaintiff's] performance revealed
that he experiences significant-to-severe cognitive
processing difficulties.” Id. She elaborated:
There was a statistically significant atypical discrepancy
between his Verbal Comprehension and Perceptual Reasoning
Indexes of 23 standard score points, in favor of the former.
The test results provided evidence of organicity, an
underlying neurological impairment in the area of Perceptual
Id. She stated that she considered the test results
to be valid. See id.
Butler diagnosed the plaintiff with cognitive disorder, NOS
[not otherwise specified], as well as generalized anxiety
disorder with panic attacks, bipolar disorder, and PTSD.
See id. at 943. In the MSS section of her report,
she stated, in relevant part:
In regard to work-related activities, [the plaintiff] would
be able to understand and remember tasks consistent with
borderline intellectual ability. He would likely need
enhanced verbal mediation and multiple repetition and
reinforcement of verbal information in order to acquire,