HUSTUS v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
REPORT AND RECOMMENDED DECISION re 12 Social Security Statement of Errors/Fact Sheet Objections to R&R due by 10/16/2017 By MAGISTRATE JUDGE JOHN H. RICH III. (lrc)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
CATO F. HUSTUS,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
REPORT AND RECOMMENDED DECISION1
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 meat processor. The plaintiff seeks remand on the
bases that the ALJ erred in finding no severe physical impairment and making a flawed
determination of his mental residual functional capacity (“RFC”), predicated in part on an
erroneous credibility finding. See Itemized Statement of Specific Errors (“Statement of Errors”)
(ECF No. 12) at 10-18. I find no reversible error and, accordingly, recommend that the court
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
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 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.
ALJ found, in relevant part, that the plaintiff met the insured status requirements of the Social
Security Act through December 31, 2011, Finding 1, Record at 11; that he had severe impairments
of attention deficit hyperactivity disorder and mood disorder, Finding 3, id.; that he had the RFC
to perform a full range of work at all exertional levels, but with the following nonexertional
limitations: he could perform simple, routine tasks with normal work breaks over a normal
workday and could have no interaction with the general public, Finding 5, id. at 14; that he was
capable of performing past relevant work as a meat processor, Finding 6, id. at 17; and that he,
therefore, had not been disabled from August 1, 2006, his alleged onset date of disability, through
the date of the decision, December 29, 2015, Finding 7, id. at 18. 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).
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.
The statement of errors also implicates Step 2 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).
A. Finding of No Severe Physical Impairment
The plaintiff first argues that the ALJ erred in failing to find any of his physical
impairments severe at Step 2. See Statement of Errors at 10-12. He focuses on the lack of any
severe finding of diverticulitis but also argues, in passing, that his back, knee, and hip impairments,
although admittedly not in themselves disabling, should also have been found severe. See id. I
find no error.
The ALJ found that “[t]he medical record show[ed] evidence of diverticulitis[,]” noting
that the plaintiff had undergone a colostomy in March 2015 and a colostomy reversal in May 2015,
at which time he had a normal colonoscopy. Record at 11. She noted, “Although there is evidence
of diarrhea, doctors simply encouraged the [plaintiff] to ‘eat more vegetables regularly and use
yogurt to help re-establish normal bowel flora.’” Id. (quoting id. at 557) (corrections by ALJ)
(progress note dated October 1, 2015).
The ALJ determined that, although the plaintiff had alleged an inability to engage in
substantial gainful activity due to his diverticulitis and colostomy as well as joint dysfunction, “he
ha[d] failed to submit persuasive medical records relative to these impairments.” Id. She
The regulations at 20 C.F.R. §§ 404.1528 and 416.928 provide that a statement of
symptoms alone is not sufficient to establish that there is a physical or mental
impairment. The statement of symptoms must be accompanied by signs and
laboratory findings. Although the [plaintiff] has made statements regarding these
conditions, the record does not contain medical information with evidence of signs
or laboratory studies establishing a medically determinable impairment that would
have interfered with his ability to perform basic work activities at any time.
The ALJ also gave great weight to a July 7, 2014, opinion of agency examining consultant
Robert Charkowick, D.O., that the plaintiff had “‘no restrictions to do work-related activities such
as sitting, standing, walking, lifting, carrying, bending, handling objects, hearing, speaking, or
traveling.’” Id. at 12 (quoting id. at 512).
She concluded that the plaintiff’s physical impairments were not only unsupported by
signs, symptoms, or laboratory findings but also failed to meet the commissioner’s duration
requirement and had not been shown to significantly limit the plaintiff’s ability to perform basic
work activities. See id.
The plaintiff contends that, in deeming his diverticulitis nonsevere, the ALJ ignored more
recent evidence, in the form of a November 10, 2015, progress note and his testimony at his
November 30, 2015, hearing, indicating that the dietary changes he had been instructed to make
had not helped to alleviate his continuing abdominal pain and digestive issues, “and that the
assessment of his continued problems remained inconclusive.” Statement of Errors at 10; see also
Record at 50-52, 554-56. He adds that any reliance on Dr. Charkowick’s opinion was misplaced
because his diverticulitis postdated Dr. Charkowick’s examination, which, in any event, was too
cursory to stand as substantial evidence that he had no severe physical impairment. See Statement
of Errors at 11.
At oral argument, counsel for the commissioner conceded that the ALJ could not rely on
the Charkowick opinion for the proposition that the plaintiff’s diverticulitis was nonsevere because
the opinion predated the plaintiff’s development of that condition. However, she contended that
the plaintiff had failed to establish that any ongoing difficulties caused work-related functional
limitations or met the so-called duration requirement or, assuming error, that it was harmful. See
also Defendant’s Opposition to Plaintiff’s Statement of Errors (“Opposition”) (ECF No. 16) at 56; 20 C.F.R. §§ 404.1509, 416.909 (“Unless your impairment is expected to result in death, it must
have lasted or be expected to last for a continuous period of at least 12 months. We call this the
The plaintiff’s counsel rejoined that, while there was no evidence of specific functional
limitations, there was sufficient evidence in the form of the plaintiff’s hearing testimony and the
November 10, 2015, progress note that his condition was severe – that is, still causing problems
for which no effective treatment had then been found.
The commissioner has the better argument. On this record, the ALJ reasonably concluded
that the plaintiff had failed to prove that his diverticulitis impairment imposed work-related
limitations or had lasted, or was expected to last, the requisite 12 months.
The plaintiff developed gastrointestinal issues/diverticulitis in February 2015. See Record
at 50-52. As of the date of his hearing, November 30, 2015, he was still undergoing diagnostic
testing to determine why he continued to suffer from diarrhea following the reversal of his
colostomy in May 2015. See id. at 50-51, 554-56. He was noted to have reported on November
10, 2015, that he had five to eight loose stools a day and occasional abdominal pain. See id. at
554. He also testified at hearing that he “sometimes” needed to be close to a restroom because his
digestive system remained unpredictable. Id. at 51. However, it is not clear what work-related
restrictions, if any, these symptoms imposed, and whether his impairment was expected to last for
a continuous period of at least 12 months.
In any event, as the commissioner argues, see Opposition at 5, even assuming error, the
plaintiff offers nothing but vague speculation that his “need for frequent bathroom breaks due to
diverticulitis might reasonably have been expected to preclude his ability to perform his past
relevant work or other work in the national economy[,]” Statement of Errors at 11. Remand is
unwarranted in these circumstances. See, e.g., Courtney v. Colvin, Civil No. 2:13-cv-72-DBH,
2014 WL 320234, at *4 (D. Me. Jan. 29, 2014) (“[T]he plaintiff fails to identify the specific
limitations imposed by these impairments, whether or not severe, that would have necessarily
affected the outcome of her application for benefits, a basic requirement at this level of review.”).
2. Hip, Back, and Knee Pain
The ALJ acknowledged that the plaintiff had complained of hip and back pain in 2014 but
Radiographic imaging of bilateral hips showed mild degenerative joint disease.
Imaging of the lumbar spine was essentially normal. Physical examination revealed
issues of deconditioning, with pulling hamstring with straight leg raise, pain in hips,
slow tandem gait, some limitation in range of motion, and diffuse tenderness. The
[plaintiff’s] primary care physician encouraged him to walk every day to promote
better posture and “help his mental issues to slowly increase activity.” In fact,
rather than place any physical limitations on the [plaintiff], his doctor encouraged
[him] to get his license back “so he has a hope of finding work.”
Record at 11 (quoting id. at 572) (corrections by ALJ) (citations omitted) (emphasis in original).
In addition, as noted above, the ALJ gave great weight to Charkowick opinion, explaining
that, although Dr. Charkowick was not a treating source, he had examined and observed the
plaintiff, giving him “insight into the extent of [the plaintiff’s] impairments and ability to
function.” Id. at 12 (citation omitted).
Dr. Charkowick described his findings on examination of the plaintiff as “unremarkable,”
noting, in relevant part:
[H]e has a normal gait. He moves quickly and freely. He appeared in no pain or
discomfort. He squatted in and out of my office chair without difficulty. . . . Both
hips show full painless range of motion. Lumbar range of motion is full and
painless. . . . [N]o swelling of the knees is noted. No palpatory tenderness of the
Id. at 512. He concluded that the plaintiff could “be gainfully employed” and had “no restrictions
to do work-related activities[.]” Id.
The plaintiff concedes that records regarding his back, knee, and hip conditions are
inadequate “to establish disability in and of themselves”; however, he argues that they “are
adequate to establish the presence of additional physical impairments that have more than a
minimal impact” on his ability to work. Statement of Errors at 11.
He contends that the ALJ erred in relying heavily on the Charkowick opinion to find these
conditions nonsevere when, as he stated in an affidavit submitted in support of his reconsideration
appeal, Dr. Charkowick spent only approximately six minutes examining him. See id.; Record at
270 (plaintiff’s affidavit dated September 18, 2014). He adds that Dr. Charkowick appears not to
have reviewed any of his medical records, based on his “cursory written review” of the plaintiff’s
history. Statement of Errors at 11; Record at 511.
Finally, he argues that the asserted error in failing to find severe back, knee, and hip
impairments is not harmless because “[e]ven modest exertional limitations based upon additional
severe physical impairments might reasonably have been expected to eliminate the possibility that
[he] could perform [his] past work [as a meat processor] at either the medium or heavy exertional
level.” Statement of Errors at 12.
As the commissioner counters, see Opposition at 4, the alleged brevity of Dr. Charkowick’s
examination does not render it unreliable, particularly when, as her counsel noted at oral argument,
Dr. Charkowick certified that his report was accurate, see Record at 513. In any event, while the
plaintiff cites portions of the record in support of the proposition that his back, knee, and hip
conditions were severe, he fails to explain how they demonstrate that the ALJ erred in finding
otherwise. See Statement of Errors at 11 (citing Record at 311-12, 315-17, 330, 411-22, 433-39,
440-41, 501-02, 567-72).2
Finally, even assuming error, the plaintiff fails to demonstrate that any error was harmful,
again relying solely on speculation that a finding of even modest exertional limitations based on
additional severe impairments “might reasonably have been expected to eliminate” his past
relevant work as a meat processer. Id. at 12.
Remand, accordingly, is unwarranted on the basis of this point of error.
B. Mental RFC Assessment
The plaintiff next challenges the ALJ’s mental RFC assessment on the grounds that it is
not clearly supported by expert opinion evidence, does not reflect her findings of moderate
limitations, is in part the product of a misreading of Global Assessment of Functioning (“GAF”)
As the commissioner further notes, see Opposition at 4, even if Dr. Charkowick did not review the plaintiff’s medical
records, two agency nonexamining consultants did. Following review of the then-available records, including Dr.
Charkowick’s report, both concluded that the plaintiff had no severe physical impairment. See Record at 94-95 (July
22, 2014, opinion of Donald Trumbull, M.D.), 118-19 (December 26, 2014, opinion of J.H. Hall, M.D.).
scores,3 and is in part predicated on a flawed credibility analysis. See Statement of Errors at 1218. I find no reversible error.
1. Asserted Reliance on Raw Medical Evidence
The plaintiff cites Bernier v. Colvin, No. 1:14-cv-29-JHR, 2015 WL 46062, at *2-*4 (D.
Me. Jan. 2, 2015), for the proposition that, to the extent that the ALJ based her mental RFC
assessment on the raw medical evidence instead of expert opinion, it is unsupported by substantial
evidence. See id. at 14; Bernier, 2015 WL 46062, at *2 (“Unless the degree of limitation would
be obvious to a layperson as a matter of common sense, an [ALJ] lacks the qualifications to
determine RFC based on raw medical evidence and must rely on the findings of a medical expert.”)
(citation and internal quotation marks omitted). He contends that “it is unclear that the ALJ’s RFC
findings are based upon any medical opinion of record[.]” Statement of Errors at 12.
As the commissioner rejoins, see Opposition at 6-7, the ALJ’s assessment plainly is
supported by expert opinion of record, most importantly the December 11, 2014, mental RFC
opinion of agency nonexamining consultant Lewis F. Lester, Ph.D., which the ALJ accorded
“substantial weight[,]” Record at 17, 119-21.
Dr. Lester found that the plaintiff could “understand and remember simple tasks and
procedures[,]” “be reliable and sustain 2-hour blocks at simple tasks at a consistent pace without
A GAF score represents “the clinician’s judgment of the individual’s overall level of functioning.” American
Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed., text rev. 2000) (“DSM-IVTR”). The GAF score is taken from the GAF scale, which “is to be rated with respect only to psychological, social,
and occupational functioning.” Id. The GAF scale ranges from 100 (superior functioning) to 1 (persistent danger of
severely hurting self or others, persistent inability to maintain minimal personal hygiene, or serious suicidal act with
clear expectation of death). Id. at 34. In 2013, the DSM-IV-TR was superseded by the American Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (“DSM-V”), which jettisoned the use of GAF
scores. See DSM-V at 16 (“It was recommended that the GAF be dropped from DSM-5 for several reasons, including
its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable
psychometrics in routine practice.”). Nonetheless, I assess the supportability of the ALJ’s decision based on the
evidence available to her at that time.
significant interruption from mental symptoms over a normal work day/week[,]” could not
“interact with the public due to his depression and associated situational mood instability, but he
[could] interact with co-workers and supervisors in a normal work setting[,]” and could “adapt to
routine changes, avoid common hazards, travel and make basic decisions.” Id.
Consistent with that opinion, the ALJ determined that the plaintiff retained the RFC to
“perform simple, routine tasks with normal work breaks over a normal workday” and could not
“have any interaction with the general public.” Finding 5, id. at 14.
The plaintiff nonetheless argues that the ALJ’s mental RFC assessment is unsupported by
substantial evidence because (i) she omitted Dr. Lester’s finding that he could adapt to routine
changes and avoid common hazards, and (ii) it is “unclear that the ability to ‘perform simple,
routine tasks with normal work breaks over a normal workday’ found by the ALJ corresponds with
the ability to ‘sustain 2-hour blocks at simple tasks at a consistent pace’ found by Dr. Lewis [sic].”
Statement of Errors at 14 (quoting Record at 14, 120).
The plaintiff acknowledges that this court has held that a claimant “bears the burden of
showing that an ALJ’s error in interpreting raw medical evidence is not harmless” and “‘may not
obtain a remand on the basis of an RFC that is more favorable than the evidence would otherwise
support.’” Id. at 14-15 (quoting Soto v. Colvin, No. 2:14-cv-28-JHR, 2015 WL 58401, at *3
(D. Me. Jan. 5, 2015)). He argues that the Lester opinion was more favorable than the ALJ’s
findings, “in particular due to the adaptation limitations found by Dr. Lewis [sic] that might
reasonably be expected to preclude work in a meat processing plant.” Id. at 15.
As the commissioner observes, see Opposition at 7-8, there is no clash between a finding
of an ability to “be reliable and sustain 2-hour blocks at simple tasks at a consistent pace” and an
ability to “perform simple, routine tasks with normal work breaks over a normal workday[,]”
Record at 14, 120. An ability to sustain two-hour blocks at simple tasks over a normal workday
equates to an ability to sustain such tasks over a normal workday with normal work breaks. See,
e.g., MacDougall v. Astrue, No. 2:10-cv-400-GZS, 2011 WL 4566268, at *8 (D. Me. Sept. 29,
2011) (rec. dec., aff’d Oct. 20, 2011).
As the commissioner argues, see Opposition at 8, to the extent that the ALJ erred in
omitting to adopt Dr. Lester’s findings that the plaintiff retained the ability to adapt to routine
changes and avoid common hazards, the plaintiff fails to demonstrate harmful error, relying solely
on speculation that the adoption of those limitations would have precluded his past relevant work
as a meat processor, see Statement of Errors at 15.4
Remand, accordingly, is unwarranted on the basis of this point.
2. Asserted Failure To Incorporate Moderate Restrictions into RFC
The plaintiff further argues, in passing, that the ALJ erred in failing to incorporate the
moderate restrictions that she found in activities of daily living, social functioning, and
concentration, persistence, or pace into her RFC determination. See Statement of Errors at 12, 14
(citing Staples v. Astrue, Civil No. 09-440-P-S, 2010 WL 2680527, at *6-*7 (D. Me. June 29,
2010) (rec. dec., aff’d July 19, 2010)). In Staples, this court observed that “mental RFC findings
typically should reflect, and be consistent with, the degree of impairment found by way of use of
a PRTF [psychiatric review technique form][,]” Staples, 2010 WL 2680527, at *6 (citation and
internal quotation marks omitted). However, Staples is distinguishable because the ALJ in that
At oral argument, the plaintiff’s counsel pointed to the vocational expert’s testimony at pages 63-66 of the record as
establishing that the mental RFC errors of which he complains are not harmless, contending that additional mental
limitations would have precluded the performance of his past relevant work. In what appears to be the only relevant
portion of that passage, the ALJ asked the vocational expert whether, if a person had “moderately severe limitations
in the ability to respond appropriately to supervisors and coworkers and to respond appropriately to customary work
pressures,” that would allow for his past relevant work. Record at 65. She explained that she defined “moderately
severe” as “a limitation which seriously affects an individual’s ability to function and results in unsatisfactory
performance.” Id. The vocational expert testified that those added restrictions would eliminate all work. See id. at
66. Yet, the plaintiff identifies no evidence that he had such restrictions.
case did not rely on a mental RFC opinion of an agency nonexamining expert who could be
presumed to have taken into account moderate PRTF restrictions. See id. at *6-*7.
In any event, the plaintiff fails to identify specific limitations that he contends were not
properly reflected in the ALJ’s RFC finding or to demonstrate that their omission, if any, was
harmful error. See id. at 12-15. Remand, accordingly, is unwarranted on the basis of this point.
3. Asserted Misinterpretation of GAF Scores
The ALJ stated that she was “aware that the medical record contains various GAF scores,
some of which are indicative of ‘serious’ limitations.” Record at 16 (citations omitted). Yet, she
found that the record “fully support[ed] a conclusion that the [plaintiff] does not experience
‘serious’ occupationally relevant functional limitations, and on this basis the GAF ratings
referenced here are considered, but not found to be persuasive of a disabling level of mental
impairment.” Id. at 17 (emphasis in original). She explained:
[GAF] assessments are often (as on occasion in this case) the product of a one-time
evaluation conducted specifically in connection with the claimant’s disability
claim. An Administrative Law Judge can choose to rely on [agency consultants’]
reports factoring [in] a GAF opinion of a treating psychiatrist. Cough v. Barnhart,
2004 WL 390950 (D. Me. March 3, 2004) (No. 03-57-B-W). Moreover, the
definition of GAF reveals that the rating can reference either symptoms OR
(capitalization emphasis in original) a measure of functional limitation: A specific
example of “serious symptoms” provided in the definition of GAF is illustrative:
GAF 41-50 can be justified for a person who has “suicidal ideation” or who
frequently engages in “shoplifting.” Neither of these “symptoms” is particularly
revealing of functional limitations, yet each justifies a GAF rating in the 41-50
range. In this case the [plaintiff’s] relatively normal activities of daily living and
other evidence is revealing of an ability . . . to do essentially that which he chooses
to do (independently managing his personal grooming, caring for his cats and
performing other household chores).
Id. at 16-17 (citation omitted) (emphasis in original).
The plaintiff points out that, in a treatment plan covering the period from March 2015
through September 2015, Jeannette Kassel, LCPC, assessed him with a GAF score of 43. See
Statement of Errors at 15; Record at 550-53. A GAF score of 41 to 50 represents “[s]erious
symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious
impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a
job).” DSM-IV-TR at 34 (boldface omitted).
The plaintiff cites Plourde v. Colvin, No. 1:12-cv-194-JAW, 2013 WL 1345519, at *2-*6
(D. Me. Mar. 14, 2013) (rec. dec. aff’d April 2, 2013), for the proposition that this court has held
that similar GAF scores constituted substantial evidence of a serious occupational impairment,
sufficient to show harmful error, in the context of treatment subsequent to a claimant’s attempted
suicide and hospitalization. See Statement of Errors at 15. He asserts that the ALJ’s reliance on
Cough is misplaced in that the GAF scores assessed by Kassel were not part of the record when
his case was reviewed by agency nonexamining consultants Brian Stahl, Ph.D., and Dr. Lester.
See id. Finally, he argues that the only serious symptom underpinning his 2015 GAF scores that
is not reflective of a serious occupational impairment is alcohol dependence; however, he testified
credibly at hearing that he had remained largely abstinent from alcohol use throughout 2015. See
id. (citing Record at 43-44, 550-53).
As the commissioner rejoins, see Opposition at 9, Plourde is distinguishable in that it
pertained to an ALJ’s finding, without benefit of expert opinion, that a claimant had no severe
mental impairment following a suicide attempt, see Plourde, 2013 WL 1345519, at *4. In that
context, the court noted that it could not fairly be said that the record made clear to a layperson, as
a matter of common sense, that the claimant was restored to her baseline GAF score of 70,
indicative of mild symptoms, when the record contained GAF scores of 45, indicative of serious
symptoms. See id. at *5-*6.
While the Stahl and Lester opinions predated the Kassel record, see Record at 96, 121,
undermining the ALJ’s reliance on Cough, I find that her handling of the plaintiff’s GAF scores
passes muster. She acknowledged the lower scores, correctly observed that they do not necessarily
reflect deficits in occupational functioning, and permissibly chose to rely on other evidence that
she found more revealing of the plaintiff’s functional capacity, including his activities of daily
living. See, e.g., LeBlanc v. Colvin, No. 2:13-cv-348-JDL, 2014 WL 5431567, at *4 (D. Me. Oct.
24, 2014) (“[A] GAF score is nothing more than a snapshot of a particular moment.”) (citation and
internal quotation marks omitted); LaFontaine v. Astrue, No. 1:10-cv-527-JAW, 2011 WL
4459197, at *4 (D. Me. Sept. 25, 2011) (rec. dec., aff’d Oct. 13, 2011) (“A GAF score, standing
alone, does not necessarily indicate an inability to work or to perform specific work-related
Remand is not warranted on this basis.
4. Challenge to Credibility Determination
The plaintiff finally challenges the ALJ’s determination of his credibility, contending that
it fails to pass muster pursuant to Social Security Ruling 16-3p (“SSR 16-3p”), which took effect
in March 2016, superseding Social Security Ruling 96-7p (“SSR 96-7p”). See Statement of Errors
at 16-18. He argues, in the alternative, that, if SSR 96-7p applies, the credibility determination is
flawed for the same reasons pursuant to that standard. See id. at 17-18.
Subsequent to the filing of the plaintiff’s statement of errors, this court held that SSR 163p is not retroactive, see Coskery v. Berryhill, No. 1:16-cv-00477-NT, 2017 WL 2417847, at *2-
I find nothing in the Kassel record indicating that Kassel’s assessment of the plaintiff’s GAF score was based almost
entirely on occupational functioning deficits. The GAF score, set forth under Axis V of her DSM diagnosis, contains
no explanation of its components. See Record at 550. While she did indicate in Axis IV that the plaintiff had severe
occupational problems, she also indicated that he had severe problems related to the social environment and moderate
problems with his primary group, moderate economic problems, moderate problems with access to health care
services, and moderate problems related to interaction with the legal system. See id.
4 (D. Me. June 4, 2017) (rec. dec. aff’d July 7, 2017), and the plaintiff’s counsel offered no reason
at oral argument to revisit that ruling. Accordingly, SSR 96-7p, which applied as of the date of
the ALJ’s decision, December 29, 2015, see Record at 18, supplies the standard pursuant to which
the supportability of the ALJ’s credibility determination must be reviewed.
The ALJ deemed the plaintiff’s allegations not credible to the extent inconsistent with her
RFC finding, stating:
The objective evidence falls short of demonstrating the existence of pain and
limitations that are so severe that the [plaintiff] cannot perform any work on a
regular and continuing basis. No treating doctor has opined the [plaintiff] is
unable to perform the basic demands of competitive work. In fact, his primary care
physician noted that the [plaintiff’s] criminal record (i.e., felony record) makes
finding work very difficult. As noted above, the [plaintiff’s] primary care physician
recommended the [plaintiff] get his driver’s license back so that he could find
Id. at 15. (citation omitted).
She explained that, while psychiatric treatment notes reflected ongoing complaints, mental
status findings had “remained relatively benign,” and “[m]uch of [the plaintiff’s] depression and
other mental health problems appear[ed] [to be] largely caused by situational stressors involving
financial problems.” Id. (citations omitted).
She further noted that she gave great weight to a March 6, 2008, opinion of agency
examining consultant Mary Alice Burkhart, Ph.D., that, absent chronic alcohol use, the plaintiff
“ha[d] the intellectual capacity to do work related activities as he ha[d] done[,]” and some weight
to a June 26, 2014, opinion of agency examining consultant Patricia Kolosowski, Ph.D., that the
plaintiff’s “memory and understanding appeared to be adequate for some types of work[.]” Id. at
15-16 (quoting Record at 355, 508).
Finally, she acknowledged that the plaintiff’s wife had testified that her husband did not
have a long history of mental health treatment because his family did not encourage him to find
treatment and that, although he did not testify to it, he had had two prior suicide attempts. See id.
at 15. She stated that she had considered the plaintiff’s wife’s testimony but found that it was “not
corroborated by the objective medical evidence of record and therefore is accorded limited
weight.” Id. at 17.
The plaintiff complains that the ALJ discounted his testimony primarily on the basis that it
was unsupported by objective medical evidence, in violation of SSR 96-7p’s command that an
individual’s allegations “may not be disregarded solely because they are not substantiated by
objective medical evidence.” Statement of Errors at 17 (quoting SSR 96-7p, reprinted in West’s
Social Security Reporting Service Rulings 1983-1991 (Supp. 2017), at 138). He asserts that her
“limited” additional reasons for finding his testimony not fully credible are inadequate to support
the credibility finding. Id. at 18.
Finally, he argues that the ALJ’s reason for rejecting his wife’s testimony is erroneous,
pointing to evidence that he was admitted for inpatient treatment in October 2014 for major
depressive disorder with intensifying suicidal ideation, including superficially cutting his wrist
with a knife and verbalizing a plan to shoot himself with a gun hanging in the couple’s living room.
See id. (citing Record at 516-20).
“The credibility determination by the ALJ, who observed the claimant, evaluated his
demeanor, and considered how that testimony fit in with the rest of the evidence, is entitled to
deference, especially when supported by specific findings.” Frustaglia v. Secretary of Health
& Human Servs., 829 F.2d 192, 195 (1st Cir. 1987). I find no reason to disturb that finding here.
As the commissioner argues, see Opposition at 13, the ALJ did not disregard the plaintiff’s
allegations solely on the basis that they were unsupported by objective medical evidence. She
relied on the fact that no treating source had suggested that the plaintiff could not work and, to the
contrary, his own treating physician had indicated that he was capable of working. See Record at
15. The plaintiff offers no explanation, and it is not otherwise apparent, why these additional
reasons are too “limited” and inadequate, combined with the lack of objective medical evidence,
to support the ALJ’s credibility finding.
Nor do I find harmful error in the ALJ’s handling of the plaintiff’s wife’s testimony. First,
as the commissioner argues, see Opposition at 15, the ALJ reasonably deemed the plaintiff’s wife’s
testimony inconsistent with the objective evidence of record as a whole. Second, even as to the
records on which the plaintiff’s relies, it is not apparent that superficial cutting of one’s wrist and
verbalization of a plan to commit suicide constitute suicide attempts. See Record at 518 (plaintiff
was “admitted due to suicidal ideations and self-injurious behaviors[,]” with a chief complaint of
suicidal ideations). Finally, the plaintiff neither explains why crediting his wife’s testimony
regarding his suicide attempts would make an outcome-determinative difference nor cites authority
for the proposition that error with respect to a third-party statement warrants remand. Indeed, this
court has rebuffed a claimant’s argument that 20 C.F.R. § 404.1529(c)(3) requires express
discussion, as opposed to solely consideration, of third-party statements. See Mathieu v. Colvin,
No: 1:13-cv-239-JDL, 2014 WL 4055515, at *5 (D. Me. Aug. 15, 2014).
For the foregoing reasons, I recommend that the commissioner’s decision be AFFIRMED.
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,
within fourteen (14) days after being served with a copy thereof. A responsive memorandum
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 1st day of October, 2017.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
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