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Michael S. T. v. Saul

United States District Court, D. Maine

September 20, 2019

MICHAEL S. T., Plaintiff
v.
ANDREW M. SAUL, Commissioner of Social Security, [1] Defendant

          MEMORANDUM DECISION[2]

          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 that his impairments did not meet or equal any of the so-called “Listings, ” Appendix 1 to 20 C.F.R. Part 404, Subpart P, giving great weight to the opinions of agency nonexamining consultants and little to those of treating and examining providers, and assessing a mental and physical residual functional capacity (“RFC”) unsupported by substantial evidence. See Plaintiff/Appellant’s Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 14) at 10-20. I find no error and, accordingly, 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 left shoulder degenerative joint disease, anxiety disorder, and affective disorder, Finding 3, id. at 18; that he had no impairment or combination of impairments that met or medically equaled in severity any of Listings, Finding 4, id. at 20; that he had the RFC to perform medium work as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c), except that he could occasionally climb ladders, ropes, or scaffolds, occasionally perform overhead work with his left, non-dominant side, frequently crawl, and, on a sustained, competitive basis, understand and remember simple instructions, use judgment in making simple work-related decisions, respond appropriately to supervisors, coworkers, and usual work situations not involving the public, and adapt to changes in the ordinary work setting, Finding 5, id. at 22-23; that, considering his age (55 years old, defined as an individual of advanced age, on his alleged disability onset date, June 28, 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 7-10, id. at 31-32; and that he, therefore, had not been disabled from June 28, 2015, his alleged onset date of disability, through the date of the decision, January 2, 2018, Finding 11, id. at 33. 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 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).

         The statement of errors also implicates Step 3 of the sequential evaluation process, at which step a claimant bears the burden of proving that his impairment or combination of impairments meets or equals a listing. 20 C.F.R. §§ 404.1520(d), 416.920(d); Dudley v. Sec’y of Health & Human Servs., 816 F.2d 792, 793 (1st Cir. 1987). To meet a listing, the claimant’s impairment(s) must satisfy all criteria of that listing, including required objective medical findings. 20 C.F.R. §§ 404.1525(c)(3), 416.925(c)(3). To equal a listing, the claimant’s impairment(s) must be “at least equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R. §§ 404.1526(a), 416.926(a).

         I. Discussion

         A. Listing 12.04

         The plaintiff first contends that the ALJ abused his discretion by failing to find that his mental impairments met or equaled Listing 12.04 because substantial evidence supported such a finding; namely, records of treating and examining sources and the opinion of treating social worker Ashley M. Vadas, LCSW, that he had marked limitations in mental functioning. See Statement of Errors at 11-15.

         As the commissioner rejoins, see Defendant’s Opposition to Plaintiff’s Statement of Errors (“Opposition”) (ECF No. 17) at 5, this argument on its face falls short of warranting remand. A reviewing court “must affirm the [commissioner’s] resolution, even if the record arguably could justify a different conclusion, so long as it is supported by substantial evidence.” Rodriguez Pagan v. Sec’y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987). See also, e.g., Malaney v. Berryhill, No. 2:16-cv-00404-GZS, 2017 WL 2537226, at *2 (D. Me. June 11, 2017) (rec. dec., aff’d July 11, 2017), aff’d, No. 17-1889, 2019 WL 2222474 (1st Cir. May 15, 2019) (“The mere fact that a claimant can point to evidence of record supporting a different conclusion does not, in itself, warrant remand.”); Huff v. Colvin, No. 2:13-cv-378-JDL, 2014 WL 5473036, at *5 n.3 (D. Me. Oct. 27, 2014) (When the position of the commissioner and that of the claimant are “equally reasonable, . . . the court must find for the commissioner pursuant to the applicable standard of review.”).

         The plaintiff’s failure to address the ALJ’s rationale for determining that his mental impairments did not meet or equal Listing 12.04, see Record at 21-22, is fatal to his bid for remand on this basis.

         B. Weighing of Expert Opinions

         The plaintiff next contends that the ALJ erred in assigning little weight to the opinions of his longtime primary care provider, Douglas Couper, M.D., his treating social worker, LCSW Vadas, and an agency examining consultant, Natacha Sovetsky-Chabot, NP-C, and great weight to the opinion of an agency nonexamining consultant, Brian Stahl, Ph.D. See Statement of Errors at 15-19. He argues, in the main, that it is error to “throw[] out” the opinions of treating and examining sources who largely agree on a claimant’s diagnoses and the nature and extent of his disability “in favor of non-examining medical consultants who have necessarily based their opinions . . . on the records of the health care providers whose opinions have been disregarded.” Id. at 17.[3]

         This amounts to an unavailing invitation to the court to reweigh the evidence. See, e.g., Rodriguez, 647 F.2d at 222 (“The Secretary may (and, under his regulations, must) take medical evidence. But the resolution of conflicts in the evidence and the determination of the ultimate question of disability is for him, not for the doctors or for the courts.”). The mere “fact that there is consistency among or between opinions in the record does not entitle them to great weight when . . . an ALJ points to other substantial evidence of record that is ...


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