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Walter J. S. v. Saul

United States District Court, D. Maine

August 25, 2019

WALTER J. S., JR., Plaintiff
ANDREW M. SAUL, Commissioner of Social Security, [1] Defendant


          John H. Rich III, United States Magistrate Judge.

         This 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.

         Pursuant 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).

         The 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).

         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. § 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).

         The 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).

         I. Discussion

         The 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.

         In the 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.

         Prior 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 Reasoning.

Id. She stated that she considered the test results to be valid. See id.

         Dr. 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, ...

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