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Darrell C. v. Saul

United States District Court, D. Maine

December 23, 2019

DARRELL C., II, Plaintiff
v.
ANDREW M. SAUL, Commissioner of Social Security, [1] Defendant

          REPORT AND RECOMMENDED 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 past relevant work as a fast food worker. The plaintiff seeks remand on the bases that the ALJ erred in (i) failing to recognize his cognitive and learning disorders as severe impairments, (ii) making a residual functional capacity (“RFC”) determination that is unsupported by substantial evidence, and (iii) improperly relying on his ability to perform what the plaintiff contends should have been classified as a “composite” job. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 13) at 3-20. I find no harmful error and, accordingly, recommend that the court affirm the 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, 2019, Finding 1, Record at 18; that he had the severe impairments of obesity and sleep apnea, Finding 3, id.; that he retained the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that he could occasionally climb ramps and stairs, could never climb ladders, could occasionally kneel, crouch, and crawl, needed to avoid concentrated exposure to unprotected heights and dangerous moving machinery, and was limited to simple, routine jobs, Finding 5, id. at 20; that he was capable of performing past relevant work as a fast food worker, which did not require the performance of work-related activity precluded by his RFC, Finding 6, id. at 23; and that he, therefore, had not been disabled from February 18, 2015, his alleged onset date of disability, through the date of the decision, December 13, 2017, Finding 7, id. at 23-24. 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 4 of the sequential evaluation process, at which stage the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). At this step, the commissioner must make findings of the plaintiff's RFC and the physical and mental demands of past work and determine whether the plaintiff's RFC would permit performance of that work. 20 C.F.R. §§ 404.1520(f), 416.920(f); Social Security Ruling 82-62 (“SSR 82-62”), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.

         I. Discussion

         A. Failure To Find Severe Cognitive, Learning Disorders

         The plaintiff first contends that the ALJ erred in failing to find severe cognitive and learning disorders based on the results of a September 20, 2016, psychological evaluation by Adrienne J. Butler, Ed.D. See Statement of Errors at 3-8. However, as the commissioner responds, the plaintiff fails to make the requisite showing that the recognition of those disorders as severe would have changed the outcome of his claim. See Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 17) at 3, 7; Bolduc v. Astrue, Civil No. 09-220-B-W, 2010 WL 276280, at *4 n.3 (D. Me. Jan. 19, 2010) (“[A]n error at Step 2 is uniformly considered harmless, and thus not to require remand, unless the plaintiff can demonstrate how the error would necessarily change the outcome of the plaintiff's claim.”).

         The plaintiff reasons that, had the ALJ adopted Dr. Butler's “opinion that [he] would need frequent repetition and visual cues, along with her assessment that his attention and concentration difficulties are likely exacerbated by both pain and fatigue, he would have had to include such limitations in the RFC[, ]” which “would have resulted in a different response from the vocational witness.” Statement of Errors at 7. He notes that the vocational expert (“VE”) present at his hearing testified that off-task behavior in excess of 15 percent of the time would not be tolerated. See id.; Record at 55. Nonetheless, Dr. Butler did not indicate that, as a result of the plaintiff's noted difficulties, he would be off-task for more than 15 percent in a work day, see Record at 525- 26, and the plaintiff identifies no other expert opinion that this would be the case, see Statement of Errors at 7-8. This is fatal to his bid for remand on this basis.[3]

         B. Challenge to RFC Determination

         The plaintiff next challenges the ALJ's RFC determination on the bases that the ALJ failed to account adequately for his cognitive and learning disorders or the effects of his severe obstructive sleep apnea. See Id. at 8-16. I find no error.

         The plaintiff first contends that, after discounting the Butler opinion, the ALJ impermissibly assessed the raw medical evidence to craft a limitation to simple, routine work, requiring reversal and remand. See Id. at 9-10 (citing, inter alia, Coyne v. Berryhill, No. 2:16-cv-00536-GZS, 2017 WL 4364184, at *4 (D. Me. Oct. 1, 2017) (rec. dec., aff'd Oct. 19, 2017); Staples v. Astrue (“Donald Staples I”), Civil No. 09-440-P-S, 2010 WL 2680527, at *3 (D. Me. June 29, 2010) (rec. dec., aff'd July 19, 2010)); Coyne, 2017 WL 4364184, at *4 (record before ALJ, which contained “the opinions of two treating physicians and an examining consultant that the [claimant] had disabling mental limitations, was too ramified to permit commonsense judgments about functional capacity based on medical findings”); Donald Staples I, 2010 WL 2680527, at *3-4 (absent any explanation by ALJ as to “how she derived the specific components of her RFC[, ]” she appeared to have “overstepped the bounds of her expertise as a layperson, translating nuanced raw medical evidence into a functional capacity assessment”).

         Yet, the ALJ did not interpret raw medical evidence. As the commissioner notes, see Opposition at 3-5, 8-9, at Step 2, he detailed his reasons for finding no more than mild limitations in the four broad areas of mental functioning known as the “Paragraph B” criteria, referencing, inter alia, Dr. Butler's report, see Record at 18-19, and, at Step 4, he partially credited the plaintiff's subjective allegations, see id. at 22 (“The undersigned has additionally limited the [plaintiff] to simple unskilled work based on his subjective allegations of difficulty with memory due to his exhaustion and poor sleep.”). It is not error to assess restrictions more favorable to a claimant than the medical evidence would otherwise support on the basis of adoption of the claimant's own subjective allegations. See, e.g., Kristina D.B. v. Berryhill, No. 1:18-cv-00088-JHR, 2019 WL 1407407, at *4 (D. Me. Mar. 28, 2019). Remand, accordingly, is unwarranted on the basis of this point of error.

         Turning to the second point, the plaintiff contends that the ALJ failed to supply the requisite good reasons for discounting the opinion of treating physician Mark K. Doughty, M.D., that, as of July 26, 2016, the plaintiff was cleared to return to part-time work for no more than 30 hours per week and six hours per day, with the workday ending no later than 3:00 p.m., when the plaintiff started to get somnolent. See Statement of Errors at 10-16; Record at 578; 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (“We will always give ...


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