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Tabetha S. B. v. Saul

United States District Court, D. Maine

November 8, 2019

TABETHA S. B., 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 (i) provide adequate reasoning for rejecting certain limitations assessed by agency nonexamining consultant Edward Martin, Ph.D., in violation of Social Security Ruling 96-6p (“SSR 96-6p”), and (ii) adequately evaluate the opinions of treating sources Kathryn Wistar, M.D., in violation of 20 C.F.R. §§ 404.1527 and 416.927, and Elsbeth Brundage, LCPC-C, and Cathy Cumler-Dennis, LCSW, in violation of Social Security Ruling 06-03p (“SSR 06-03p”). See Itemized Statement of Errors Pursuant to Local Rule 16.3 Submitted by Plaintiff (“Statement of Errors”) (ECF No. 10) at 2-6. 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 December 31, 2016, Finding 1, Record at 18; that she had the severe impairments of degenerative disc disease of the spine, muscle disorders, obstructive sleep apnea, asthma, obesity, depression, and anxiety, 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), with the following additional limitations: she could sit, stand, or walk up to six hours each in an eight-hour workday, could occasionally stoop or climb ramps or stairs and frequently kneel or crouch, could never crawl or climb ladders, ropes, and scaffolds, should avoid concentrated exposure to extreme cold, extreme heat, humidity, fumes, odors, dusts, gases, poor ventilation, and hazards, was able to understand, remember, and apply information and focus on and complete simple work-related tasks, maintain concentration, persistence, or pace for simple work-related activities, manage simple social demands, adapt to routine changes, and manage herself, and could tolerate a moderate noise environment as defined by the Selected Characteristics of Occupations, Finding 5, id. at 21; that, considering her age (44 years old, defined as a younger individual, on her amended alleged disability onset date, August 16, 2013), 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 28-29; and that she, therefore, had not been disabled from August 16, 2013, her amended alleged onset date of disability, through the date of the decision, March 28, 2018, Finding 11, id. at 30. 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. Partial Rejection of Agency Nonexamining Consultant's Limitations

         As a threshold matter, as the commissioner observes, see Defendant's Opposition to Plaintiff's Itemized Statement of Errors (“Opposition”) (ECF No. 11) at 6, the plaintiff's reliance on SSR 96-6p to support the proposition that the ALJ improperly rejected certain limitations assessed by Dr. Martin is misplaced. SSR 96-6p was superseded effective March 27, 2017, by Social Security Ruling 17-2p (“SSR 17-2p”). See Social Security Ruling (SSR) 17-2p: Titles II and XVI: Evidence Needed by Adjudicators at the Hearings and Appeals Council Levels of the Administrative Review Process To Make Findings About Medical Equivalence, 82 Fed. Reg. 15263, 15263-64 (Mar. 27, 2017); SSR 17-2p, reprinted in West's Social Security Reporting Service, Rulings 1983-1991 (Supp. 2019), at 702-07. The ALJ issued the decision at issue on March 28, 2018, see Record at 30, well after SSR 96-6p was rescinded.

         Nor can the plaintiff rely on SSR 17-2p, the ruling that superseded SSR 96-6p. As its title suggests, SSR 17-2p provides guidance on how an ALJ determines, at Step 3 of the sequential evaluation process, whether a claimant's impairment(s) medically equal a so-called “listing.” SSR 17-2p at 703-07. It has no bearing on the evaluation at Step 4 of a claimant's RFC. See id.

         In any event, even if SSR 96-6p had been in effect on the date of the ALJ's decision, its application would not have been outcome-determinative in this case. Two agency nonexamining consultants assessed the plaintiff's mental RFC: Jennifer Cortes, Psy.D., in June 2016 and Dr. Martin in October 2016. See Record at 131-33, 189-92.

         The ALJ discussed both opinions, observing that Dr. Cortes had determined that the plaintiff

suffers from severe affective and anxiety [disorders, ] . . . has moderate limitations in daily activities, social functioning, concentration, persistence, or pace; and no episodes of decompensation[, ] . . . has the ability to remember and understand simple instructions as well as workplace procedures, has moderate limitations in her ability to remember more detailed instructions, is able to carry out simple instructions and follow simple work-like procedures, and make simple work-related decisions[, ] . . . has moderate limitations in the ability to sustain attention throughout extended periods of time, perform at a consistent pace and maintain a regular schedule, interact appropriately with the general public and supervisors, and respond appropriately to basic work setting changes[, ] . . . is able to interact appropriately with co-workers, maintain personal hygiene and standards of dress, maintain appropriate precautions in hazardous situations, utilize transportation, and organize and independently set goals.

Id. at 27 (citing, inter alia, id. at 127, 131-33). The ALJ noted that Dr. Martin had affirmed Dr. Cortes' opinion but had added that the plaintiff

is not able to sustain concentration, persistence, or pace nor adapt to changes and interact adequately with others, or complete a normal (eight-hour) workday and (40-hour) workweek without an unreasonable number of interruptions, breaks, absences ...

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