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Heidi S. v. Saul

United States District Court, D. Maine

September 29, 2019

HEIDI S., Plaintiff
ANDREW M. SAUL, Commissioner of Social Security, [1] Defendant


          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 failed to account for a moderate limitation in concentration, persistence, or pace, erred in determining whether her hip impairment would last 12 months, made inadequate credibility findings, and improperly discounted the opinions of treating and examining sources. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 13) at 4-14. I find no reversible error and, accordingly, affirm the commissioner's decision.[3]

         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, 2014, Finding 1, Record at 13; that she had the severe impairments of gastroparesis, osteoarthritis, affective disorder not otherwise specified, anxiety disorder not otherwise specified with post-traumatic stress features, personality disorder traits, and hypermobility, Finding 3, id.; that she had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that she was able to perform simple, routine tasks, could work in sight of coworkers but not undertake work requiring teamwork or collaborative work, could not work with the general public, and was able to adapt to routine changes in the work environment and make basic work decisions, Finding 5, id. at 17; that, considering her age (37 years old, defined as a younger individual, on her alleged disability onset date, September 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 she could perform, Findings 7-10, id. at 26; and that she, therefore, had not been disabled from September 1, 2012, her alleged onset date of disability, through the date of the decision, November 28, 2017, Finding 11, id. at 27-28. 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. Failure To Account for Moderate Mental Health Limitation

         The plaintiff first complains that, although the ALJ found that she had a moderate limitation in concentrating, persisting, or maintaining pace, she failed to include a corresponding RFC restriction, warranting remand. See Statement of Errors at 4-5.

         The commissioner rejoins that the ALJ adequately accounted for that moderate limitation by limiting the plaintiff to simple, routine tasks not requiring teamwork or collaboration. See Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 15) at 2. He correctly notes that in Boyce v. Colvin, No. 1:13-cv-00381-JAW, 2014 WL 5473237 (D. Me. Oct. 27, 2014), this court stated that it had “‘repeatedly upheld limitations to simple, routine, and/or repetitive work when the claimant has been found to be moderately limited in the area of concentration, persistence, or pace.'” Id. (quoting Boyce, 2014 WL 5473237, at *4). The assessed limitation, hence, adequately reflects the moderate limitation at issue.

         At oral argument, the plaintiff's counsel sought to distinguish Boyce on the basis that in Boyce and cases cited therein, the mental RFC finding at issue had been supported by an expert's opinion. However, as counsel for the commissioner rejoined, any error is harmless because the plaintiff identifies no evidence that she had greater limitations. See also Id. at 2-3 (citing Paquin v. Colvin, No. 1:13-cv-360-JDL, 2014 WL 6679123, at *3 (D. Me. Nov. 25, 2014)).

         At oral argument, the plaintiff's counsel attempted to rectify that oversight, asserting that agency examining consultant Roger S. Zimmerman, Ph.D., had assessed greater limitations than found by the ALJ in stating that the plaintiff was “able to communicate, understand, attend, at least on a short-term basis, ” and, if “relatively free of stress, . . . make decisions in a relatively independent fashion.” Record at 657-58 (emphasis added).

         Nonetheless, as counsel for the commissioner argued, the point falters on its merits. The ALJ explained that, although she generally gave great weight to Dr. Zimmerman's assessment, she did not adopt his findings verbatim, deeming “some of his language to be somewhat vague[.]” Record at 24. The language on which the plaintiff's counsel relied at oral argument is indeed vague, setting forth no particular functional limitations that could have been incorporated into a mental RFC determination.

         Remand, accordingly, is unwarranted on this basis of this point of error.

         B. Failure To Project ...

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