BOWEN v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 20

MEMORANDUM OF DECISION on 14 SS Statement of Errors/Fact Sheet By MAGISTRATE JUDGE JOHN H. RICH III. (jgw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
RICHARD ALLEN BOWEN,
Plaintiff
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant

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No. 1:14-cv-451-JHR

MEMORANDUM DECISION1
This Child’s Disability Benefits (“CDB”) and Supplemental Security Income (“SSI”)
appeal raises the question of whether the administrative law judge supportably found the plaintiff
capable of performing work existing in significant numbers in the national economy.2 The plaintiff
seeks remand on the bases that the administrative law judge erred in determining his mental
residual functional capacity (“RFC”) and in relying on the so-called “Grid,” the MedicalVocational Rules in Appendix 2 to 20 C.F.R. Part 404, Subpart P, to find him capable of
performing work. See Plaintiff’s Statement of Errors (“Statement of Errors”) (ECF No. 14-1) at
2-7. At oral argument, the plaintiff’s counsel clarified that he did not argue that the administrative
1

This action is properly brought under 42 U.S.C. §§ 405(g) and 1383(c)(3). The commissioner has admitted that the
plaintiff has exhausted his administrative remedies. The case is presented as a request for judicial review by this court
pursuant to Local Rule 16.3(a)(2), which requires the plaintiff to file an itemized statement of the specific errors upon
which he seeks reversal of the commissioner’s decision and to complete and file a fact sheet available at the Clerk’s
Office, and the commissioner to file a written opposition to the itemized statement. Oral argument was held before
me on September 18, 2015, pursuant to Local Rule 16.3(a)(2)(D), requiring the parties to set forth at oral argument
their respective positions with citations to relevant statutes, regulations, case authority, and page references to the
administrative record. The parties have consented to have me conduct all proceedings in this matter, including the
entry of judgment. ECF No. 18.
2
To be entitled to Child’s Disability Benefits on the earnings record of a wage earner, a claimant must demonstrate
that he or she is the insured person’s child, is dependent on the insured, is unmarried, and, if over age 18 and not
eligible for benefits as a full-time student, has a disability that began before age 22. See 20 C.F.R. § 404.350; see
also, e.g., Starcevic v. Commissioner of Soc. Sec., No. 08-13128, 2009 WL 2222631, at *6 (E.D. Mich. July 22, 2009)
(claimant applying for child’s disability benefits must demonstrate that she was disabled before she turned 22 “and
was continuously disabled from the date of her twenty-second birthday through the date that she applied for benefits”).

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law judge erred in relying on the Grid with respect to the RFC actually found but, rather, that the
administrative law judge should have assessed additional limitations that would have precluded
sole reliance on the Grid. I find no reversible error in the administrative law judge’s RFC
determination. Accordingly, I affirm the commissioner’s decision.
Pursuant to the commissioner’s sequential evaluation process, 20 C.F.R. §§ 404.1520,
416.920; Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the
administrative law judge found, in relevant part, that the plaintiff had severe impairments of
organic mental disorder/borderline intellectual functioning and personality disorder/intermittent
explosive disorder, Finding 3, Record at 12; that he had the RFC to perform a full range of work
at all exertional levels but with the following nonexertional limitations: due to psychological
impairments, he could understand and remember simple instructions, could execute simple tasks
on a consistent schedule to complete an eight-hour day/five-day week (or an equivalent work
schedule), could interact with coworkers and supervisors, could work in public areas but could not
interact with the general public, and could adapt to occasional changes in the routine workplace,
Finding 5, id. at 14; that, considering his age (21 years old, defined as a younger individual, on his
alleged disability onset date, January 1, 2011), 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 16; and that he, therefore, had
not been disabled from January 1, 2011, through the date of the decision, June 13, 2013, Finding
11, id. at 17. 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. Secretary
of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).

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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. Secretary
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. Secretary
of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
The administrative law judge 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. Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).
I. Discussion
The administrative law judge stated that his mental RFC determination was supported by
the opinions of agency nonexamining consultants Lewis F. Lester, Ph.D., David O. Hill, Ph.D.,
and David R. Houston, Ph.D., the opinions of agency examining consultants Gary Rasmussen,
Ph.D., and Donald Devine, Ph.D., treatment notes from providers, including Kennebec Behavioral
Health (“KBH”), function reports, and the longitudinal record. See Record at 16. He added:
The preponderance of objective evidence, including psychological evaluations and
clinical reports, when considered in view of the [plaintiff’s] statements of daily
activities[,] do[es] not support the purported level of disability that he professes.
While it is true that organic and personality-related mental health symptoms impose
certain limitations, there is nothing in the record to undermine the conclusion that
[he] retains the capacity for a range of simple work as set forth in the assigned RFC.
Id.

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The plaintiff challenges the administrative law judge’s assessment that nothing in the
record undermined the conclusion that he retained the capacity for simple work, arguing that the
administrative law judge ignored or minimized the import of both contrary medical opinion
evidence and other evidence of record that he contends corroborated his disabling work-related
mental imitations. See Statement of Errors at 3-7.
With respect to medical opinion evidence, he points to:
1.

The opinion of agency nonexamining consultant Brian Stahl, Ph.D., that he met the

criteria of Listing 12.02, Appendix 1 to 20 C.F.R. Part 404, Subpart P (the “Listings”), in part on
the strength of the April 2011 report of an employer, Nitram, that no one could work with him,
one female employee reported feeling unsafe alone with him, he “had an extremely difficult time
reading, writing or even understanding what was needed when it was read to him[,]” he “was very
rude to our office personnel[,]” and “[h]is hygiene was also a major issue.” Id. at 3-4 (quoting
Record at 476) (emphasis omitted);
2.

Dr. Rasmussen’s statements that he could not be expected to independently manage

any awarded funds in his own interest and that testing and a records review “suggest[ed] that his
skills of every day living, including his capacity to manage money, [are] in the deficient range.”
Id. at 3 (quoting Record at 658);
3.

Dr. Rasmussen’s opinion that his language deficits negatively impacted his social

judgment and might lead to difficulties with authority figures such as supervisors and negatively
impact his capacity to be a reliable employee. See id. at 6; Record at 658;
4.

The finding of treating physician Roy Miller, M.D., that he would need help

managing his benefits because of difficulty handling money. See Statement of Errors at 6; Record
at 857;

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5.

Dr. Lester’s findings that he had a marked limitation in interacting with the general

public and a moderate limitation in ability to get along with coworkers and peers, which he argues
were corroborated by records of his employment not only at Nitram, but also at Applebee’s. See
Statement of Errors at 7; Record at 734; and
6.

Dr. Devine’s finding that his IQ scores were in the low to borderline range, with

his working memory in the first percentile, and that “[a]wareness of this limitation may be
necessary if he returns to school or is placed on a job.” Statement of Errors at 3 (quoting Record
at 811).
He adds that the administrative law judge ignored or minimized the import of other
evidence corroborating his allegation that he had disabling work-related mental limitations in
attempting to perform even simple work, including:
1.

Records detailing his deficits when he actually attempted to work at Nitram in April

2011 and at Applebee’s, with vocational assistance from Goodwill Industries of Northern New
England (“Goodwill”), in June 2008. See id. at 7; Record at 475-76; 704-09. At oral argument,
his counsel contended that these records comprised, in effect, the best evidence available of his
RFC and should have informed the administrative law judge’s resolution of conflicts in the medical
opinion evidence;
2.

Evidence that, when he was taken out to lunch as part of an occupational therapy

consultation by Gallant Therapy Services (“Gallant”) on September 24, 2010, he required
assistance ordering because of difficulty reading the menu. See Statement of Errors at 5; Record
at 748;

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3.

A notation in Goodwill’s 2008 employment assessment that he was illiterate, to the

point that his reading and writing were not evaluated. See Statement of Errors at 6; Record at 706;
and
4.

Recent KBH notes that the administrative law judge acknowledged reflected

ongoing impulse and anger control problems. See Statement of Errors at 5-6; Record at 12.
In her brief, and through counsel at oral argument, the commissioner contended that the
administrative law judge permissibly resolved conflicts in the medical opinion evidence,
identifying substantial evidence in support of his RFC determination. See Defendant’s Opposition
to Plaintiff’s Itemized Statement of Errors (“Opposition”) (ECF No. 16) at 2-12. I agree.
At bottom, this is a case in which the evidence in certain material respects was conflicting,
and the administrative law judge resolved those conflicts, as he was obliged to do. 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.”). While he did not address
every piece of evidence at odds with his determination, the plaintiff fails to show any harmful error
in that failure.
First, the RFC determination is directly supported by the 2011 opinions of Drs. Hill and
Houston, the most recent mental RFC opinions of record, which the administrative law judge gave
“strong weight.” Record at 15, 90-92, 838. It is also directly supported by the 2008 opinion of
Dr. Lester. See id. at 735. It is supported in part by the 2008 opinion of Dr. Rasmussen, who
concluded that, despite his “language deficits” and “social and emotional immaturity[,]” the
plaintiff “appear[ed] to be able to perform such basic job related psychological skills as
communication, understanding, and following instructions” and had no deficits in his capacity to

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concentrate or memorize, id. at 658, and the 2011 opinion of Dr. Devine, who concluded that the
plaintiff might “have difficulty remembering directions on the job and sustaining concentration
and perseverance on jobs that require a rapid pace[,]” that his ability to interact with the public
was “probably adequate[,]” although it might be complicated by a speech impediment, and that
there was “no reason to believe that he would have a problem getting along with coworkers or his
supervisors[,]” id. at 811.
Second, the administrative law judge either discussed the contrary evidence to which the
plaintiff points or relied on the opinions of experts who had considered it.
He expressly considered the Stahl opinion, which relied heavily on the Nitram report,
rejecting it on the basis that, subsequent to the Stahl assessment, Dr. Hill performed a
comprehensive analysis, and no opinions or treatment records postdating the Hill analysis
contradicted it. See id. at 15. He observed that KBH treatment notes dated in 2012 and 2013 only
further supported the Hill opinion, indicating that the plaintiff sustained a part-time work schedule
at Goodwill Industries for more than a year, maintained his appointments, behaved pleasantly and
cooperatively with his counselor, and continued his previous social and daily activities. See id. at
15-16.
The commissioner concedes that the administrative law judge did not expressly discuss the
portions of the Rasmussen opinion on which the plaintiff relies. See Opposition at 4, 6.
Nonetheless, as she points out, see id. at 5, the plaintiff fails to explain how the lack of a
restriction on the capacity manage funds would have been material, thus falling short of
demonstrating entitlement to a remand on that basis, see, e.g., Hatt v. Social Sec. Admin. Comm’r,
No. 1:13-cv-00335-NT, 2014 WL 4411600, at *4 (D. Me. Sept. 5, 2014) (no basis for remand
when claimant “proffer[ed] no explanation of the necessary change in the outcome of her

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application” if the administrative law judge had adopted a statement in an agency examining
consultant’s report). In any event, there is conflicting evidence of record on the point. While the
Rasmussen finding was corroborated by the plaintiff’s mother, see Record at 462, Drs. Devine and
Houston deemed him capable of managing his funds appropriately, see id. at 87, 811.
While the administrative law judge did not address the portion of the Rasmussen opinion
stating that the plaintiff’s language deficits might lead to difficulties with authority figures such as
supervisors and negatively impact his capacity to be a reliable employee, see id. at 658, he relied
on opinions of Drs. Hill and Houston, who had the benefit of review of the full record as of the
date of their review in 2011, including the Rasmussen opinion, and yet concluded that the plaintiff
had, at most, a deficit in his ability to interact with the general public, see id. at 86, 91, 807, 838.
The administrative law judge addressed the Miller finding, according it no evidentiary
weight because it was merely a check-off form asserting the sole proposition that the plaintiff was
unable to manage money in his own interests because he needed help from his mother to pay his
bills, which the administrative law judge deemed “unsubstantiated.”

Id. at 16.

As the

commissioner acknowledges, see Opposition at 9, the Miller opinion was not wholly
unsubstantiated. It was corroborated by the plaintiff’s mother’s report. See Record at 462.
Nonetheless, any error in describing the Miller finding as “unsubstantiated” is harmless, both
because the administrative law judge relied on substantial evidence that the plaintiff did have the
capacity to manage his own funds, see id. at 87, 811, and because the plaintiff fails to explain how
the omitted restriction, if adopted, would have precluded sole reliance on the Grid, see Statement
of Errors at 4-7.
With respect to Dr. Lester’s findings that the plaintiff had a marked limitation on
interacting with the general public and a moderate limitation in his ability to get along with

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coworkers and peers, Dr. Lester translated those limitations, for purposes of assessing the
plaintiff’s mental RFC, into an inability to interact with the public but an ability to interact with
coworkers and supervisors in a normal work setting. See Record at 735. This, in turn, was
consistent with the administrative law judge’s mental RFC finding. See Finding 5, id. at 14.
Finally, as the commissioner points out, see Opposition at 6-7, the administrative law judge
expressly considered Dr. Devine’s IQ test results but concluded that they did not compel a finding
of greater limitations than those assessed, see Record at 15. This conclusion is supported by
substantial evidence. Dr. Hill, who had the benefit of review of the Devine report and whose
opinion the administrative law judge gave great weight, took into account Dr. Devine’s concerns
about memory and the performance of fast-paced work by limiting the plaintiff to the performance
of only simple tasks. See id. at 838.
Turning to the other evidence of record on which the plaintiff relies, counsel for the
commissioner acknowledged at oral argument that the administrative law judge did not separately
discuss the Nitram and Applebee’s evidence. Yet, as she indicated, Dr. Lester discussed the
Applebee’s evidence, which he summarized as disclosing that the plaintiff had “[g]ood attendance,
drove himself[,]” “[d]id not seem motivated[,]” was “impatient toward [the] end of 3 [hour]
shift[,]” was “[d]istractible[,]” did “[g]enerally good quality work, but did drop off at end of shift,”
was “able to work independently[,]” was “hard to understand at times[,]” had an “[a]dequate
memory[,]” and had a “passive” attitude toward work. Id. at 731 (emphasis omitted). In addition,
as she notes, see Opposition at 8, in articulating his reasons for rejecting the Stahl opinion, the
administrative law judge recognized that it was based on the Nitram report, see Record at 15,
thereby indirectly addressing that evidence.

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The administrative law judge also considered the plaintiff’s “professed reading inability,”
noting that, despite it, “a KBH counselor reported [in 2012] that the plaintiff was ‘able to read and
write and demonstrate[d] a capacity to provide informed consent based on vocabulary, sentence
structure and fund of knowledge.’” Id. at 13 (quoting id. at 868, 910, 916, 920, 953, 964) (citation
omitted). This was substantial evidence in support of the omission of specific reading/writing
limitations. While the administrative law judge did not discuss the contrary evidence contained in
the reports to which the plaintiff points (the Gallant report and the 2008 Goodwill employment
assessment), he relied on the opinions of agency nonexamining consultants who had reviewed
them. Dr. Houston considered the Gallant report, see id. at 86, and Dr. Lester considered the 2008
employment assessment, see id. at 731. In addition, Dr. Hill considered the plaintiff’s statement
that he was unable to follow written instructions well. See id. at 837.3
Moreover, as the commissioner argues, see Opposition at 13-14 n.5, even if the plaintiff
had been found illiterate, that would not have precluded reliance on the Grid, see Grid §§ 201.00(i)
(“While illiteracy or the inability to communicate in English may significantly limit an individual’s
vocational scope, the primary work functions in the bulk of unskilled work relate to working with
things (rather than with data or people) and in these work functions at the unskilled level, literacy
or ability to communicate in English has the least significance. . . . Thus, the functional capability
for a full range of sedentary work represents sufficient numbers of jobs to indicate substantial
vocational scope for those individuals age 18-44 even if they are illiterate or unable to
communicate in English.”); 202.00(g) (same for individuals age 18-49 who are limited to lightwork jobs).

The plaintiff also argues that the recommendations made at the end of the Gallant report “are an unequivocal
indication that [his] impairment more than marginally reduce[s] his relevant occupational base.” Statement of Errors
at 5. However, he does not explain how. See id.
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As the plaintiff points out, see Statement of Errors at 5-6, the administrative law judge
acknowledged that KBH notes reflected ongoing impulse and anger control problems, see Record
at 12. However, the plaintiff fails to explain what specific limitations were omitted from the
administrative law judge’s mental RFC finding and how those would have precluded reliance on
the Grid. See Statement of Errors at 5-6. In any event, the administrative law judge supportably
determined that the KBH notes did not warrant greater limitations than found by Dr. Hill,
explaining that, despite the plaintiff’s ongoing issues, the KBH records “show[ed] the [plaintiff]
as maintaining a part-time work schedule for more than a year through Goodwill Industries;
maintaining his appointments; behaving pleasantly and cooperatively with the counselor[;] and
continuing his previous social and daily activities.” Record at 15-16 (citations omitted); see also,
e.g., id. at 859, 868, 908, 910, 916, 920, 953, 958, 962, 964.
This was a permissible resolution of conflicts in the evidence. See, e.g., Anderson v. Astrue,
No. 1:11-cv-476-DBH, 2012 WL 5256294, at *4 (D. Me. Sept. 27, 2012) (rec. dec., aff’d Oct. 23,
2012) (“While an administrative law judge is not competent to assess a claimant’s RFC directly
from the raw medical evidence unless such assessment entails a common-sense judgment, he or
she is perfectly competent to resolve conflicts in expert opinion evidence regarding RFC by, inter
alia, judging whether later submitted evidence is material[.]”) (citation and internal quotation
marks omitted).
II. Conclusion
For the foregoing reasons, the commissioner’s decision is AFFIRMED.

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Dated this 28th day of September, 2015.

/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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