IRELAND v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 21

REPORT AND RECOMMENDED DECISION re 13 Social Security Statement of Errors/Fact Sheet Objections to R&R due by 7/10/2017 By MAGISTRATE JUDGE JOHN H. RICH III. (mjlt)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
AMANDA L. IRELAND,
Plaintiff
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
Defendant

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No. 1:16-cv-00376-JDL

REPORT AND RECOMMENDED DECISION2
This Child’s Disability Benefit (“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. The plaintiff seeks
remand on the bases that the administrative law judge (“ALJ”) erred in failing to (i) find that she
had a severe impairment of panic disorder with agoraphobia, (ii) evaluate whether her impairments
met or equaled the criteria of Listing 12.05, Appendix 1 to Subpart P, 20 C.F.R. § 404 (the
“Listings”), or (iii) formulate a residual functional capacity (“RFC”) supported by substantial
evidence. See Statement of Specific Errors (“Statement of Errors”) (ECF No. 13) at 1-11. I find
no reversible error and, accordingly, recommend that the court affirm the commissioner’s decision.

1

Nancy A. Berryhill, who is now the Acting Commissioner of Social Security, is substituted for former Acting
Commissioner Carolyn W. Colvin as the defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d).
2
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 her 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 she 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 March 17, 2017, 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.

1

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
ALJ found, in relevant part, that the plaintiff had not yet attained age 22 as of June 1, 2010, her
alleged onset date of disability, and had not engaged in substantial gainful activity since that date,
Findings 1-2, Record at 12; that she had a severe impairment of borderline intellectual functioning,
Finding 3, id. at 13; that she did not have an impairment or combination of impairments that met
or medically equaled the criteria of any of the Listings, Finding 4, id.; that she had the RFC to
perform a full range of work at all exertional levels, but with the following nonexertional
limitations: simple jobs with simple instructions and limited changes, and the performance of only
limited reading or arithmetic, Finding 5, id. at 14; that, considering her age (20 years old, defined
as a younger individual, on her alleged disability onset date, June 1, 2010), 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 17;
and that she, therefore, had not been disabled from June 1, 2010, through the date of the decision,
May 22, 2015, Finding 11, id. at 18-19. 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).
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).

2

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.
Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).
The statement of errors also implicates Steps 2, 3, and 4 of the sequential evaluation
process. Although a claimant bears the burden of proof at Step 2, it is a de minimis burden,
designed to do no more than screen out groundless claims. McDonald v. Secretary of Health
& Human Servs., 795 F.2d 1118, 1124 (1st Cir. 1986). When a claimant produces evidence of an
impairment, the commissioner may make a determination of non-disability at Step 2 only when
the medical evidence “establishes only a slight abnormality or [a] combination of slight
abnormalities which would have no more than a minimal effect on an individual’s ability to work
even if the individual’s age, education, or work experience were specifically considered.” Id.
(quoting Social Security Ruling 85-28).
At Step 3, a claimant bears the burden of proving that her impairment or combination of
impairments meets or equals a listing. 20 C.F.R. §§ 404.1520(d), 416.920(d); Dudley v. Secretary
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).

3

At Step 4 of the sequential evaluation process, 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, 482 U.S.
at 146 n.5. 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 Impairment of Panic Disorder with Agoraphobia
The plaintiff first argues that the ALJ erred at Step 2 in failing to consider whether she had
a severe impairment of panic disorder with agoraphobia. See Statement of Errors at 1-5. She
contends that the finding of no such severe impairment was inconsistent with the ALJ’s Step 3
determination that she had moderate limitations in social functioning, which in turn was
inconsistent with her Step 4 omission of any social functioning restrictions from the plaintiff’s
RFC. See id. I find no error.
As the plaintiff acknowledges, see id. at 1-2, while the ALJ did not address whether she
had a severe panic or social anxiety disorder at Step 2, she did so elsewhere in her decision,
discussing both the alleged social anxiety and the expert opinion evidence of record bearing on it,
see Record at 16.3 That evidence consisted of two opinions furnished in connection with a prior
disability application – a report of an October 18, 2011, psychological evaluation by agency
examining consultant David W. Booth, Ph.D., and an October 26, 2011, opinion of agency
nonexamining consultant Brian Stahl, Ph.D., see id. at 72-77, 371-74 – and two opinions furnished

The precise nomenclature of the disorder is immaterial. At oral argument, the plaintiff’s counsel used the terms
“panic disorder” and “anxiety” interchangeably.
3

4

in connection with the disability application at issue – a November 9, 2012, opinion of Dr. Stahl,
and a December 4, 2013, opinion of agency nonexamining consultant John J. Warren, Ed.D, see
id. at 92-96, 114-18.
Based on his review of a two-page medical record dated March 15, 2011, a mental status
examination, an interview of the plaintiff, and administration of the Wechsler Adult Intelligence
Scale – Fourth Edition (“WAIS-IV”), Dr. Booth diagnosed the plaintiff with panic disorder with
agoraphobia and mild mental retardation. See id. at 371-74. He noted that the 2011 medical record
indicated that the plaintiff “was experiencing symptoms of anxiety[,]” that, on mental status
examination, her “affect was anxious[,]” and that, although she initially denied that she had any
medical problems when questioned, she stated on further questioning:
[S]he feels uncomfortable when she is around a number of other people. For
instance, she said that if she goes to the mall, she goes in the morning, when there
are fewer people present. She said she feels especially uncomfortable if a store is
crowded, and she tries to get out as soon as possible.
Id. at 371-72.
Summarizing the results of his evaluation, Dr. Booth stated, in relevant part, that
“[p]roblems with anxiety are present, which include panic attacks[,]” and that the plaintiff “likely
would have difficulty responding to other people in a comfortable and appropriate way, where it
would be expected that anxiety would impact on her functioning.” Id. at 373-74.
In his 2011 opinion, Dr. Stahl found, in relevant part, that the medical evidence supported
diagnoses of cognitive disorder and anxiety, which were severe but did not meet or equal a listing,
and that the plaintiff had moderate limitations in maintaining social functioning; specifically, that
she was “not able to work with the public but can work with coworkers and supervisors.” Id. at
74, 76. He explained, “She gets along with others and authority. She was polite and cooperative
with the field office.” Id. at 76.
5

In his 2012 opinion, Dr. Stahl found that the medical evidence supported only one
diagnosis, a cognitive disorder that was severe but did not meet or equal a listing. See id. at 93.
Dr. Stahl noted that he had reviewed two records dated March 7, 2012, and May 7, 2012, both of
which indicated that the plaintiff had neither anxiety nor depression. See id. at 92, 378-81.4
Dr. Stahl explained that he found no medically determinable anxiety impairment because
the plaintiff “did not specify allegations of mental health limitations[,]” id. at 94 – an apparent
reference to his notation that she had alleged auditory processing problems, a learning disability,
and a cognitive impairment, see id. at 92. He again assessed, inter alia, moderate limitations in
social functioning, see id. at 93, which he translated into an ability “to work with coworkers and
supervisors but not with the public[,]” id. at 96. He explained, “She gets along with healthcare
providers.” Id.
Dr. Warren also found that the plaintiff had only one severe medically determinable
impairment, an organic mental disorder. See id. at 115. He explained: “Among the somatic record,
anxiety is mentioned, but this appears to have been related to a situation specific experience rather
than a general psychopathological condition.” Id. at 114. Like Dr. Stahl, he assessed, inter alia,
moderate limitations in social functioning, see id. at 93, which he translated into an ability “to
sustain the basic demands associated with relating adequately with supervisors/co-workers” but an
inability “to interact appropriately with the general public[,]” id. at 117.
The ALJ found:
In terms of her allegations of social anxiety, the only mention of this as a problem
was in the consultative examination by Dr. Booth and the DDS [Disability
Determination Services] reports relying on that evaluation. This appears to be
based only on the [plaintiff’s] complaints that she feels uncomfortable around
groups of people. Despite her allegations, she has never been treated for a
4

In a separate portion of the March 7, 2012, record, a pelvic exam was noted to be difficult “due to anxiety of the
patient.” Record at 382.

6

psychiatric impairment, takes no medication for same, had no apparent issues in
high school with social interactions, has been determined to be shy but cooperative
in evaluations and manages to [go] out with her family and friends without apparent
difficulty. The undersigned concludes that the [plaintiff’s] allegations of social
difficulty are not supported in the medical evidence or even in her function report
or in her initial allegations, which included only alleged learning disability, auditory
processing and cognitive impairment.
Id. at 16 (citation omitted).
She gave “some weight” to the Warren and 2012 Stahl opinions but did “not give great
weight [to] their opinions that the [plaintiff] could not work with the public.” Id. She explained,
“There is no evidence that the [plaintiff] would not be able to get along with the public, other than
her assertions[,]” and “[s]he has not been in any mental health treatment for social anxiety or any
other psychological impairment.” Id. She gave “some weight” to the Booth opinion but found
that “his conclusion about the [plaintiff’s] being unable to work with the public is not supported
in the medical evidence and appears to rely on [her] subjective complaints.” Id. at 16-17.
Yet, as the plaintiff points out, see Statement of Errors at 2, in assessing the overall severity
of her mental limitations for purposes of determining whether her condition met or equaled Listing
12.02, the ALJ found that she had moderate limitations in social activities, stating:
She reports feeling uncomfortable around a number of other people such as in the
mall or crowded stores. However, she does report going to the mall when few
people are around and can shop with a list for food. [She] has several friends that
she does things with and is on Facebook at times.
Id. at 13 (citation omitted).
The plaintiff contends that the ALJ’s omission of any severe panic or anxiety disorder is
unsupported by substantial evidence in that the ALJ (i) overlooked “additional references” in the
medical record to her anxiety, see Statement of Errors at 4 (citing Record at 351), and (ii) rejected
the agency consultants’ unanimous opinion that she could not interact with the public while herself
assessing moderate limitations in social functioning, see id. at 5. She asserts that, as a result, the
7

ALJ impermissibly interpreted raw medical data to determine whether the panic/anxiety condition
was severe. See id.; Iezzi v. Astrue, Civil No. 09-10-P-S, 2009 WL 3615018, at *3 n.4 (D. Me.
Oct. 27, 2009) (rec. dec., aff’d Nov. 18, 2009) (“The [ALJ], as layperson, was not competent to
judge on the basis of the raw medical evidence that the plaintiff’s dizzy spells would have no more
than a minimal effect on her ability to work[,]” rendering the impairment nonsevere at Step 2).
She argues that the error is not harmless because, with the addition of this second severe
impairment, her condition would have met Listing 12.05(C). See Statement of Errors at 5.
As the commissioner rejoins, see Defendant’s Opposition to Plaintiff’s Itemized Statement
of Specific Errors (“Opposition”) (ECF No. 17) at 3-8, the ALJ’s finding that the plaintiff had no
severe panic or anxiety disorder is supported by substantial evidence in the form of the 2012 Stahl
and 2013 Warren opinions as well as her discussion of the record evidence generally.
Although, as the plaintiff’s counsel contended at oral argument, Dr. Stahl’s explanation for
why he found no medically determinable anxiety disorder in 2012 is weak, see Record at 94
(plaintiff did not allege she suffered from anxiety), the ALJ reasonably deemed Dr. Warren’s
explanation “clear and thorough[,]” id. at 16, 114.
The plaintiff identifies only one mention of anxiety in the treatment records – a March 11,
2011, notation of “[a]nxiety” with “[n]o sleep disturbances[,]” id. at 351, which was taken into
account by Dr. Booth, see id. at 371. The commissioner correctly observes that the updated
evidence available to Dr. Stahl in 2012 and to Dr. Warren in 2013 included a March 7, 2012,
treatment record indicating no anxiety or depression on a review of systems, although the plaintiff
did experience anxiety related to a pap smear/pelvic examination that day, and a June 14, 2013,
record that did not identify anxiety as an issue. See Opposition at 4; Record at 380-82, 409.

8

As the ALJ found, the plaintiff was noted to be shy, but cooperative. See id. at 16, 302
(description of plaintiff by a friend as “very shy”), 371 (notation by Dr. Booth that plaintiff was
“shy”). Further, as the ALJ noted, the plaintiff did not initially allege that she suffered from anxiety
or panic disorder with agoraphobia. See, e.g., id. at 16, 92.
In sum, the ALJ identified substantial evidence in support of a finding that the plaintiff had
no severe anxiety or panic disorder, distinguishing this case from Iezzi, in which the ALJ failed to
address whether the claimant’s dizziness impairment was severe. Compare Iezzi, 2009 WL
3615018, at *3.
As the commissioner suggests, see Opposition at 8, the fact that Drs. Stahl and Warren
assessed a restriction against contact with the public is not necessarily inconsistent with their
determination that the plaintiff had only one severe cognitive mental impairment. Dr. Warren, in
particular, provided a cogent explanation for why he found no severe anxiety impairment, see
Record at 114, yet he went on to deem the plaintiff unable to work with the public, see id. at 117.
For the court to conclude that Drs. Stahl and Warren could not properly have assessed any social
functional restriction unless they found a severe anxiety or panic disorder risks substituting the
court’s lay judgment for that of experts.
As the commissioner argues, see Opposition at 8, any error by the ALJ in assessing a
moderate limitation in social functioning at Step 3 but omitting to assess any corresponding
restriction at Step 4 does not undermine the supportability of her separate Step 2 finding that the
plaintiff had no severe panic or anxiety disorder.
Finally, even assuming arguendo that the ALJ erred in failing to find a severe anxiety or
panic disorder, for the reasons discussed below, the error was not outcome-determinative as to
Listing 12.05(C).

9

B. Failure To Consider Listing 12.05
The ALJ found at Step 3 that the plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of any listed impairment, specifically
addressing Listing 12.02 (Organic Mental Disorders). See Record at 13-14. The plaintiff asserts
that she erred in failing to consider Listing 12.05(C) (Intellectual Disability). See Statement of
Errors at 6-9.5 The commissioner counters that, although the ALJ did not address that listing, her
analysis supports a finding that the plaintiff’s impairment did not meet it. See Opposition at 9-14.
I agree.
To meet Listing 12.05, a claimant must demonstrate that she has “significantly subaverage
general intellectual functioning with deficits in adaptive functioning initially manifested during
the developmental period; i.e., the evidence demonstrates or supports onset of the impairment
before age 22.” Listing 12.05. “The required level of severity for this disorder is met when the
requirements in A, B, C, or D are satisfied.” Id. The plaintiff relies on subsection C, pursuant to
which a claimant must demonstrate “[a] valid verbal, performance, or full scale IQ of 60 through
70 and a physical or other mental impairment imposing an additional and significant work-related
limitation of function.” Listing 12.05(C).
The plaintiff contends that her impairment meets this listing on the basis of (i) Dr. Booth’s
finding, on administration of the WAIS-IV before she turned 22, that she had a full-scale IQ score
of 65, in the mild range of mental retardation, (ii) record evidence of numerous deficits in adaptive
functioning before age 22, and (iii) the existence of a separate mental impairment imposing an

5

The plaintiff acknowledges that, although the commissioner has published final rules revising medical criteria for
evaluating mental disorders, they did not take effect until January 17, 2017. See Statement of Errors at 6 n.1; Revised
Medical Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66,138 (Sept. 26, 2016). Accordingly, I discuss the
version of Listing 12.05 in effect at the relevant time.

10

additional and significant work-related limitation of function, namely, panic disorder with
agoraphobia, as diagnosed by Dr. Booth. See Statement of Errors at 6-9.
As discussed above, the ALJ supportably found that the plaintiff did not have a severe
impairment of panic disorder with agoraphobia. Should the court agree, that is fatal to her bid for
remand on this basis.
In any event, as the commissioner argues, see Opposition at 9-11, the Booth finding is not
dispositive of the issue of the plaintiff’s IQ. The plaintiff omits mention of conflicting IQ evidence
in the form of a December 15, 2006, report by psychologist Normal O. Worgull, Jr., Ph.D., based
on administration of the Wechsler Intelligence Scale for Children – Fourth Edition (“WISC-IV”),
that the plaintiff had a full-scale IQ score of 72, within the borderline range of intellectual
functioning. See Record at 347-50.
As the commissioner notes, see Opposition at 9-10, an ALJ is not required to accept an IQ
score as valid when other evidence undermines it, see, e.g., Plourde v. Barnhart, No. 02-164-BW, 2003 WL 22466176, at *4 n.4 (D. Me. Oct. 31, 2003) (rec. dec., aff’d Nov. 18, 2003) (“[I]t is
appropriate for an administrative law judge to consider the record in its totality (including evidence
of the claimant’s functioning), in assessing the validity of a stated IQ score[.]”); see also, e.g.,
Chunn v. Barnhart, 397 F.3d 667, 672 (8th Cir. 2005) (“An ALJ may reject IQ scores that are
inconsistent with a claimant’s daily activities and behavior, especially when the scores are based
on a one time examination by a nontreating psychologist.”). In a similar vein, an ALJ permissibly
may resolve differences in findings regarding intellectual functioning. See, e.g., Libby v. Astrue,
473 Fed. Appx. 8, 9 (1st Cir. 2012) (noting that it was “the ALJ’s prerogative” to resolve conflicts
in the evidence concerning whether the plaintiff was mentally retarded).

11

The ALJ gave “great weight” to the Booth opinion insofar as it bore on the plaintiff’s
cognitive abilities, deeming it “supported by objective medical evidence, including tests he
performed[,]” and “some weight” to the Worgull opinion, which she found “consistent with the
medical opinions of record regarding [the plaintiff’s] cognitive functioning.” Record at 16-17.
Taken in isolation, that discussion suggests that the ALJ afforded more weight to the Booth
test findings than to those of Dr. Worgull. As the commissioner persuasively argues, however, see
Opposition at 10-11, the ALJ’s discussion of the record evidence generally, and her finding that
the plaintiff had a severe impairment of borderline intellectual functioning rather than mild mental
retardation, indicate that she implicitly found Dr. Worgull’s IQ scores to be more reflective of the
plaintiff’s level of intellectual functioning, see Finding 3, Record at 13; see also id. at 15-17. In
relevant part, the ALJ concluded:
[T]he record consistently shows the [plaintiff] to have cognitive limits in the
borderline to mild mental retardation range. The subtest scores vary, especially in
terms of processing speed. However, the [plaintiff] was able to graduate from high
school, albeit with some help from special education services. The record also
establishes that she can perform some household tasks with reminders from her
mother. The record also shows that little has been expected of the [plaintiff]. She
has never had a part time job, nor was she involved in vocational rehabilitation
programs after school as Dr. Worgull recommended. In all her psychological
evaluations, she had no vocational goals and appeared not to have an expectation
that she would work, even though she attended a program through the high school
for two years regarding vocational training in culinary arts. [She] testified that she
only did dishes in that program. . . . The fact that she can microwave meals and
follow instructions to bake cookies or cake suggests that she is capable of following
simple instructions. She was noted to be cooperative and a hard worker in her 2006
P.E.T. [Pupil Evaluation Team] discussion. She was noted to excel at clothing
design and put forth a strong effort. She was also noted to work well with others
and use her time wisely. Moreover, her P.E.T. report from tenth grade indicates
one of her goals was to attend Vocational Rehabilitation courses.
While the undersigned limited her mental residual functional capacity assessment
to limited reading and arithmetic[,] her P.E.T. records showed she was in the
average range (10th grade) in reading comprehension and oral expression and only
slightly below average in written expression and listening comprehension. She was
able to read common sight words. She was able to perform simple addition and
12

subtraction. Moreover, her overall grade point average in high school was 85.25
and she graduated 60th out of 110. Her coursework included subjects such as earth
science, biology, chemistry, geometry and algebra, suggesting she would at least
be capable of simple work with simple instructions and limited arithmetic and
reading.
Id. at 15-16 (citations omitted).
In addition, the ALJ deemed Dr. Warren’s opinion, apart from his assessment of a
restriction against working with the public, “consistent with the medical evidence of record” and
supported by a “clear and thorough” explanation. Id. at 16. Dr. Warren explained, in relevant
part:
Claimant with history of learning problems, intelligence testing obtained in
connection with prior denial 10/11 suggested intellectual disability, however, other
school-based evidence, including intelligence and achievement testing[,] supports
learning disorder or perhaps borderline intellectual functioning rather than frank
intellectual disability.
Id. at 114.
The ALJ, hence, identified substantial evidence in support of a finding that the plaintiff’s
IQ was consistent with a finding of borderline intellectual functioning rather than mild mental
retardation.
Finally, while the ALJ did not purport to discuss whether, for purposes of Listing 12.05,
the plaintiff demonstrated “deficits in adaptive functioning initially manifested” before age 22, her
conclusions regarding the plaintiff’s functioning are inconsistent with such a finding.
This court has observed:
“Adaptive functioning” is ordinarily associated with activities of daily living. The
Commissioner’s preamble to the listings of mental disorders defines activities of
daily living to “include adaptive activities such as cleaning, shopping, cooking,
taking public transportation, paying bills, maintaining a residence, caring
appropriately for your grooming and hygiene, using telephones and directories, and
using the post office. . . . In a nut shell, the standard requires an assessment of a
claimant’s ability to appropriately engage in day-to-day activities of independent
living.
13

Richardson v. Social Sec. Admin. Comm’r, No. 1:10-cv-00313-JAW, 2011 WL 3273140, at *7 (D.
Me. July 29, 2011) (rec. dec. aff’d Aug. 18, 2011) (quoting Listing 12.00(C)(1)). “[L]isting 12.05
does not require ‘significant’ deficits in adaptive functioning, only deficits.” Id. at *8.
The plaintiff asserts that the record reflects numerous deficits in her adaptive functioning
manifested before age 22, pointing to portions of Dr. Booth’s report as well as her testimony at
hearing. See Statement of Errors at 7-8. She observes that Dr. Booth stated that (i) she had “a
constricted lifestyle” and that her activities of daily living were “concomitantly limited[,]” (ii) her
mother “coached her on many items, as she filled out the intake form for the office[,]” and (iii) she
would “require help in the specifics of money management.” Id. (quoting Record at 371, 373).
She adds that, at hearing, she testified that she was unable to shop without a list, see Record
at 51, could not prepare meals that did not involve using the microwave, see id. at 47, did not have
a checkbook, see id. at 55, could only tell time using a digital clock, see id. at 54, could not subtract
one from five without counting on her fingers, see id. at 54-55, needed her mother’s help to operate
the washing machine, see id. at 48, she did not have a driver’s license and failed her permit test
several times before passing it, see id. at 49-50, participated in special education classes throughout
her schooling, see id. at 42, and was accompanied by a one-on-one aide in all of her classes, see
id.
As counsel for the commissioner pointed out at oral argument, to the extent that the plaintiff
relies on her testimony concerning her limitations, the ALJ deemed it not entirely credible, see id.
at 15, and she has not contested that credibility finding, see generally Statement of Errors.
Moreover, as the commissioner contends, see Opposition at 11-13, the ALJ discussed in
detail why, in her view, the evidence suggested that the plaintiff was capable of a higher level of
functioning than alleged and that “little ha[d] been expected of her[,]” Record at 15-16. For
14

example, the ALJ noted that (i) Dr. Worgull had indicated that the plaintiff might be a good
candidate for vocational training and that undertaking such training might improve her self-esteem,
see id. at 15, 350, (ii) the plaintiff required an in-class aide solely for regular-education high school
classes, see id. at 15, 255, 350, and, (iii) with the aide’s assistance, the plaintiff took such courses
as earth science, biology, chemistry, geometry, and algebra, maintaining an 85.25 grade point
average and graduating from high school roughly in the middle of her class, see id. at 16, 247. As
the commissioner observes, see Opposition at 12, “assignment to special education classes may be
evidence of the necessary adaptive function deficit, but it is not enough, standing alone, if the
claimant did well in those classes[,]” Wallace v. Astrue, No. 1:11-cv-260-DBH, 2012 WL
1077454, at *3 n.2 (D. Me. Mar. 29, 2012) (rec. dec., aff’d Apr. 17, 2012) (citations and internal
quotation marks omitted).
Finally, the ALJ deemed the plaintiff to have only mild limitations in activities of daily
living, stating that she “does some household chores including cooking and baking, laundry and
dishes[,]” “uses the family computer and goes on Facebook and plays video games[,]” “likes to go
to the beach in summer and skis in the winter with her family[,]” and “liked sewing” in school. Id.
at 13. See also id. at 15-16 (finding that the plaintiff “can perform some household tasks with
reminders from her mother[,]” and “[t]he fact that she can microwave meals and follow
instructions to bake cookies or cake suggests that she is capable of following simple instructions”).
Because the ALJ’s discussion makes clear that she would have supportably found that the
plaintiff did not meet Listing 12.05(C) had she expressly considered that listing, any error in failing
to do so was harmless.

15

C. The ALJ’s RFC Finding
The plaintiff finally seeks remand on the basis that, in assessing her RFC, the ALJ erred in
failing to include any limitations in her ability to interact with coworkers, supervisors, or the
general public or to identify accurately the extent of her limitations in reading and following
instructions. See Statement of Errors at 9-11. She contends that these errors undermined the
relevance of a vocational expert’s (“VE’s”) testimony that a person with the RFC posited by the
ALJ was capable of performing work existing in significant numbers in the national economy. See
id. at 11. For the reasons that follow, I find no reversible error in the ALJ’s failure to include a
prohibition against working with the general public and no error in any of the remaining respects
argued by the plaintiff.
1. Interacting with Coworkers and Supervisors
As the commissioner rejoins, see Opposition at 7 n.6, the plaintiff points to no evidence
that she had limitations in interacting with coworkers or supervisors apart from Dr. Booth’s general
statement that she “[l]ikely would have difficulty responding to other people in a comfortable and
appropriate way, where it would be expected that anxiety would impact on her functioning[,]”
Statement of Errors at 10; Record at 374. With the benefit of review of the Booth report as well
as other then-available evidence of record, both Drs. Stahl and Warren deemed the plaintiff capable
of interacting with coworkers and supervisors. See Record at 76, 96, 117. The ALJ did not err in
omitting to assess such a restriction.
2. Interacting with the General Public
On the other hand, as the commissioner acknowledges, see Opposition at 6-7, there is a
tension between the ALJ’s own finding of moderate limitations in social functioning, tracking the
opinions of Drs. Stahl and Warren, compare id. at 13 with id. at 74, 93, 115, and her omission of

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the restriction assessed by both Drs. Stahl and Warren against working with the public, compare
Finding 5, id. at 14 with id. at 76, 96, 117. Absent any explanation for the discrepancy, the ALJ
erred in omitting that restriction.
As the commissioner points out, however, see Opposition at 7-8 & n.7, the error is harmless
for two alternative reasons. First, two of the three jobs that the ALJ found the plaintiff capable of
performing, those of linen grader and kitchen helper, do not require public contact. See Gleason
v. Colvin, No. 1:15-cv-12-NT, 2015 WL 7013661, at *5 (D. Me. Oct. 15, 2015) (rec. dec., aff’d
Nov. 12, 2015) (linen grader); Connor v. Colvin, No. 1:13-cv-00219-JAW, 2014 WL 3533466, at
*4 (D. Me. July 16, 2014) (kitchen helper). This court “has routinely held that a single job
available in significant numbers in the national economy is sufficient to meet the commissioner’s
burden at Step 5.” Dana v. Astrue, Civil No. 09-514-BW, 2010 WL 3397465, at *3 (D. Me. Aug.
24, 2010) (rec dec., aff’d Sept. 13, 2010). Thus, had the ALJ assessed a limitation against working
with the public, she could have continued to rely on the jobs of linen grader and kitchen helper,
meeting the commissioner’s burden at Step 5.
Second, pursuant to Ward v. Commissioner of Soc. Sec., 211 F.3d 652 (1st Cir. 2000),
remand on this point would constitute an “empty exercise[,]” Ward, 211 F.3d at 656, because the
same result would be reached pursuant to the so-called “Grid,” the Medical-Vocational Guidelines
contained in Appendix 2 to Subpart P, 20 C.F.R. § 404, which provide a “streamlined” method by
which the commissioner can meet her burden of showing that there is other work a claimant can
perform, Heggarty v. Sullivan, 947 F.2d 990, 995 (1st Cir. 1991) (citation and internal quotation
marks omitted).
In Ward, the First Circuit held that remand is not necessary if correction of the error at
issue will amount to no more than an empty exercise because there is an independent ground, based

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on a fully developed record, on which affirmance “must be entered as a matter of law.” Ward, 211
F.3d at 656. See also, e.g., Day v. Astrue, No. 1:12-cv-141-DBH, 2012 WL 6913439, at *10 (D.
Me. Dec. 30, 2012) (rec. dec., aff’d Jan. 18, 2013) (“Pursuant to the rule of SEC v. Chenery Corp.,
332 U.S. 194 (1947), a reviewing court cannot affirm an agency’s decision on the basis of a post
hoc rationalization but must affirm, if at all, on the basis of a rationale actually articulated by the
agency decision-maker. An exception to the Chenery rule exists when a remand will amount to
no more than an empty exercise because, for example, application of the correct legal standard
could lead to only one conclusion.”) (citations and internal punctuation omitted).
As the commissioner points out, see Opposition at 18, the ALJ found the plaintiff capable,
despite her limitations, of performing the basic mental demands of competitive, remunerative,
unskilled work, defined in Social Security Ruling 85-15 (“SSR 85-15”) to “include the abilities
(on a sustained basis) to understand, carry out, and remember simple instructions; to respond
appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a
routine work setting[,]” Record at 18; SSR 85-15, reprinted in West’s Social Security Reporting
Service Rulings 1983-1991, at 347. Even with the addition of a ban against interaction with the
public, the use of the Grid remains appropriate for an individual who retains the ability to perform
those basic mental demands. See, e.g., Garcia-Martinez v. Barnhart, 111 Fed. Appx. 22, 23 (1st
Cir. 2004); Swormstedt v. Colvin, No. 2:13-cv-00079-JAW, 2014 WL 1513347, at *6 (D. Me. Apr.
16, 2014).
As the commissioner points out, see Opposition at 19, even if one assumes that the plaintiff
had no transferable skills and the lowest educational level, to account for her limitations to simple
reading and arithmetic, the Grid directs a finding of nondisability for an individual in her age
category, see Grid §§ 201.23, 202.16, 203.25.

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3. Reading Ability
With respect to her reading ability, the plaintiff notes that, during the hearing, the VE
testified that the three jobs at issue (cleaning/housekeeper, linen grader, and kitchen helper) all
require the ability to recognize “somewhere in the neighborhood of 2,500 two[-] to three-syllable
words . . . at a rate of 95 to 120 words per minute.” Statement of Errors at 10 (quoting Record at
57-58). She notes that, although the ALJ found that she “was able to read common sight words[,]”
she made no findings regarding her ability to read two- to three-syllable words and at what rate.
Id. (quoting Record at 16). She asserts that the “only quantitative evidence” of record regarding
her reading level, a report of an evaluation performed for purposes of her P.E.T. plan, stated that
she “was able to read common sight words, but multi-syllabic words with multiple vowels and
silent letters gave her more difficulty[,]” and she also did well with one-syllable words in
pseudoword decoding “but had difficulty with multi-syllabic words and those words with double
vowels.” Id. at 10-11 (quoting Record at 246).
The ALJ asked the VE to assume a hypothetical person “with a high school education in
special ed, so there’s limited reading and math skills.” Record at 55. She went on: “I don’t know,
is that clear enough for you when I say limited? She can . . . read simple material[.]” Id. at 55-56.
On cross-examination, the VE testified that the three jobs he had identified required reading at a
“quite basic” level that “[c]ertainly would not require a sophisticated level of reading.” Id. at 57.
He elaborated that, as defined in the Dictionary of Occupational Titles (“DOT”) (U.S. Dep’t of
Labor 4th Ed. 1991), the jobs had a General Educational Development (“GED”) reading level of
1, equating to an ability to “recognize the meaning of 2,500 two[-] or three-syllable words . . . at a
rate of 95 to 120 words per minute.” Id. at 57-58. He agreed that an inability to read those words
at that rate “would take you outside of those jobs[.]” Id. at 58.

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As the commissioner observes, see Opposition at 16, the ALJ relied on the same P.E.T.
evaluation report on which the plaintiff relies, see Record at 16, 246. That report does not
necessarily indicate that the plaintiff is unable to meet GED reading level 1 requirements: while
the examiner stated that reading multisyllabic words gave the plaintiff “more difficulty[,]” she did
not indicate that the plaintiff could not read them. Id. at 246. In addition, as the ALJ observed,
see id. at 16, the examiner noted that the plaintiff “scored in the average range in reading
comprehension and oral expression[,]” albeit below average in wording reading and pseudoword
decoding, id. at 246. Further, as the ALJ found, see id. at 16, the examiner stated that the plaintiff
“did fine with common sight words,” id. at 246.
As the commissioner points out, see Opposition at 16-17, the VE did not testify that a
person with the hypothetical profile provided by the ALJ could not perform the reading
requirements of the jobs at issue, but only that an individual who could not meet the standards of
a GED reading level 1, as defined in the DOT, could not perform them, see Record at 57-58. There
is no evidence that the plaintiff could not read in accordance with those standards, and that lack of
evidence cuts against, rather than in favor of, the plaintiff, who bore the burden of proof at Step 4.
See, e.g., Davis v. Colvin, No. 1:14-cv-343-JHR, 2015 WL 3937423, at *4 (D. Me. June 25, 2015)
(“[T]he burden of proof rests with the claimant through the establishment of an RFC.”).
In any event, as the commissioner argues in the alternative, see Opposition at 16 n.12, her
regulations specify that even illiteracy or an inability to communicate in English is not a complete
bar to gainful employment, see, e.g., Seavey v. Barnhart, 276 F.3d 1, 6 n.3 (1st Cir. 2001) (noting
that the regulations do not consider illiteracy a disability, nor a condition that significantly limits
the jobs available); Grid § 201.00(i) (“[T]he 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

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unskilled level, literacy or ability to communicate in English has the least significance.”). As she
notes, see Opposition at 19 n.13, even if the plaintiff were illiterate and limited to sedentary work,
neither of which is the case, in addition to having no prior work experience, the Grid would direct
a finding of nondisability for a person in her age category, see Grid § 201.23.
4. Ability To Follow Instructions (Asserted Need for Aide)
The plaintiff finally contends that the ALJ erred in omitting a need for a one-on-one aide
in the workplace, noting that, at hearing, the VE testified that an individual requiring such an
accommodation would not be able to obtain or maintain employment. See Statement of Errors at
11; Record at 56-57. She observes that she was accompanied by a one-on-one aide throughout her
school career and testified at hearing that the aide would help her follow along with the class
because “[a] lot of the stuff in the class I did not even understand, so she would sit there and give
me – she would explain what to do.” Statement of Errors at 11 (quoting Record at 43). At oral
argument, her counsel further emphasized that Dr. Booth had noted that she looked to her mother
for answers. See Record at 371 (“The [plaintiff] came to the office with her mother, who coached
her on many items, as she filled out the intake form for the office.”).
As the commissioner rejoins, see Opposition at 14, the plaintiff advances no rationale for
the proposition that her need for an aide at school would translate into a need for an aide in
performing unskilled work. Indeed, the plaintiff’s school program was intended to prepare her for
vocational programs and, ultimately, work. See, e.g., Record at 255 (noting that the plaintiff had
“done very well . . . in the culinary arts program, earning A’s for her first two terms[,]” but
continued “to prefer a career in animal/veterinarian work”). Nor does the plaintiff point to any
medical opinion that she would require a one-on-one aide to perform unskilled work. See
Statement of Errors at 11. The plaintiff’s general dependence on her mother likewise does not

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evidence a need attributable to her mental impairment for a one-on-one aide to perform unskilled
work. Again, this lack of evidence cuts against, rather than supporting, the plaintiff’s position.
See, e.g., Davis, 2015 WL 3937423, at *4.
Remand, accordingly, is unwarranted on the basis of any of the plaintiff’s points of error.
II. Conclusion
For the foregoing reasons, I recommend that the commissioner’s decision be AFFIRMED.
NOTICE
A party may file objections to those specified portions of a magistrate judge’s report or
proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for
which de novo review by the district court is sought, together with a supporting memorandum
and request for oral argument before the district judge, if any is sought, within fourteen (14)
days after being served with a copy thereof. A responsive memorandum and any request for
oral argument before the district judge shall be filed within fourteen (14) days after the filing of
the objection.
Failure to file a timely objection shall constitute a waiver of the right to de novo review
by the district court and to appeal the district court’s order.
Dated this 25th day of June, 2017.

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

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