PAGE v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 21

REPORT AND RECOMMENDED DECISION re 14 Social Security Statement of Errors/Fact Sheet, 1 Complaint, filed by RODNEY S PAGE, II. Objections to R&R due by 11/21/2017. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
RODNEY S. PAGE, II,
Plaintiff
v.
NANCY A. BERRYHILL,
ACTING COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION,
Defendant

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1:16-cv-00626-JDL

REPORT AND RECOMMENDED DECISION
On Plaintiff Rodney Page’s application for disability insurance benefits under Title
II of the Social Security Act, Defendant, the Social Security Administration Acting
Commissioner, found that Plaintiff has severe impairments, but retains the functional
capacity to perform substantial gainful activity. Defendant, therefore, denied Plaintiff’s
request for disability benefits. Plaintiff filed this action for judicial review of Defendant’s
final administrative decision pursuant to 42 U.S.C. § 405(g).
Following a review of the record, and after consideration of the parties’ arguments,
I recommend the Court vacate the administrative decision and remand for further
proceedings.
The Administrative Findings
The Commissioner’s final decision is the September 25, 2015, decision of the
Administrative Law Judge (ALJ). (ALJ Decision, ECF No. 10-2.)1 The ALJ’s decision

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Because the Appeals Council found no reason to review that decision, the Acting Commissioner’s final

tracks the familiar five-step sequential evaluation process for analyzing social security
disability claims, 20 C.F.R. § 404.1520.
The ALJ found that Plaintiff has severe, but non-listing-level impairments
consisting of degenerative disk disease, osteoarthritis, history of right shoulder
osteoarthritis, bilateral carpal tunnel syndrome, bipolar disorder, anxiety, learning
disability, and fibromyalgia. (ALJ Decision ¶¶ 4 – 5.) The ALJ further found that, despite
his impairments, Plaintiff has the residual functional capacity (RFC) to perform a subset of
medium exertion work, subject to several physical limitations, and is further limited to a
subset of “simple” work that involves limited change in work settings and routines, does
not require literacy, involves no more than 1 or 2 step instructions with few concrete
variables that are communicated orally, does not involve working with the public, and does
not involve more than occasional contact with coworkers and supervisors. (Id. ¶ 6.)
Based on the RFC finding and Plaintiff’s vocational profile, and based on testimony
of a vocational expert, the ALJ concluded that Plaintiff could perform substantial gainful
activity, including in the representative occupations of launderer hand, industrial cleaner,
housekeeping cleaner, and linen grader. (Id. ¶ 11.) Accordingly, the ALJ determined that
Plaintiff has not been disabled for the period commencing with the alleged onset date, June
25, 2010, and ending on the date of decision, September 25, 2015. (Id. ¶ 12.)
Standard of Review
A court must affirm the administrative decision provided the correct legal standards

decision is the ALJ decision.

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were applied and provided the decision is supported by substantial evidence. This is so
even if the record contains evidence capable of supporting an alternative outcome. MansoPizarro v. Sec’y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per curiam); Rodriguez Pagan v.
Sec’y of HHS, 819 F.2d 1, 3 (1st Cir. 1987). Substantial evidence is evidence that a
reasonable mind might accept as adequate to support a finding. Richardson v. Perales, 402
U.S. 389, 401 (1971); Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st Cir. 1981). “The
ALJ’s findings of fact are conclusive when supported by substantial evidence, but they are
not conclusive when derived by ignoring evidence, misapplying the law, or judging matters
entrusted to experts.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).
Discussion
Plaintiff argues the ALJ’s finding at step 3 – that he does not meet a mental
impairment listing – is not supported by substantial evidence because the ALJ
impermissibly “invalidated” the results of an IQ test. (Statement of Errors at 2 – 3.)
Plaintiff also contends the ALJ erred when she did not address whether Plaintiff’s
impairment is medically equivalent to listing 12.05(C), even if it does not meet the listing.
(Id. at 3 – 7.) In addition to challenging the step 3 finding, Plaintiff argues the ALJ’s RFC
finding is flawed because substantial evidence does not support the ALJ’s assessment of
Plaintiff’s carpal tunnel syndrome, or the ALJ’s finding that Plaintiff can perform
substantial gainful activity at the medium-exertion level. (Id. at 8 – 20.)
A.

Step 3
Plaintiff argues that he qualifies as disabled at step 3 because his degree of

impairment meets or equals listing 12.05(C). According to Plaintiff, the ALJ’s contrary
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finding is not supported by substantial evidence because the ALJ impermissibly judged
matters entrusted to experts.
“The listings are so constructed that an individual with an impairment(s) that meets
or is equivalent in severity to the criteria of a listing could not reasonably be expected to
do any gainful activity.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(A); see also 20
C.F.R. § 404.1525(a). “For a claimant to show that his impairment matches a listing, it
must meet all of the specified medical criteria.” Sullivan v. Zebley, 493 U.S. 521, 530
(1990). However, if a claimant has an impairment identified in a listing, but does not meet
one or more of the criteria of the listing, the claimant may still be found disabled at step 3
if he has “other findings related to [his] impairment that are at least of equal medical
significance to the required criteria.” 20 C.F.R. § 404.1526(b)(1)(ii) (defining “medical
equivalence”).
Prior to amendments effective January 17, 2017,2 and for purposes of Plaintiff’s
claim, the relevant listing language provided:
The structure of the listing for intellectual disability (12.05) is different from
that of the other mental disorders listings. Listing 12.05 contains an
introductory paragraph with the diagnostic description for intellectual
disability. It also contains four sets of criteria (paragraphs A through D). If
your impairment satisfies the diagnostic description in the introductory
paragraph and any one of the four sets of criteria, we will find that your
impairment meets the listing. Paragraphs A and B contain criteria that
describe disorders we consider severe enough to prevent your doing any
gainful activity without any additional assessment of functional limitations.
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The Social Security Administration revised the Listing regulations regarding mental disorders effective
January 17, 2017, to reflect, inter alia, “advances in medical knowledge.” Revised Medical Criteria for
Evaluating Mental Disorders, 81 Fed. Reg. 66138, 66138 (Sept. 26, 2016). The ALJ did not apply, and the
parties have not discussed, the current language of the Listing. The version of the Listing in effect on the
date of the ALJ’s decision governs. See id. n.1 (“We expect that Federal courts will review our final
decisions using the rules that were in effect at the time we issued the decisions.”).

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For paragraph C, we will assess the degree of functional limitation the
additional impairment(s) imposes to determine if it significantly limits your
physical or mental ability to do basic work activities, i.e., is a “severe”
impairment(s), as defined in §§ 404.1520(c) and 416.920(c). If the additional
impairment(s) does not cause limitations that are “severe” as defined in §§
404.1520(c) and 416.920(c), we will not find that the additional
impairment(s) imposes “an additional and significant work-related limitation
of function,” even if you are unable to do your past work because of the
unique features of that work. …
…. When you have a medically determinable severe mental impairment that
does not satisfy the diagnostic description or the requirements of the
paragraph A criteria of the relevant listing, the assessment of the paragraph
B and C criteria is critical to a determination of equivalence.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(A).
The listing on which Plaintiff relies, Listing 12.05(C), reads as follows:
12.05 Intellectual disability: Intellectual disability refers to 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.
The required level of severity for this disorder is met when the requirements
in A, B, C, or D are satisfied.
…
C. 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 ….
The ALJ found that Plaintiff did not meet the listing because Plaintiff “does not
have 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.” (ALJ Decision, ¶ 5, R. 23.)
One of the IQ tests that is central to the parties’ dispute is the test associated with
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the “clinical interview” conducted by Edward Quinn, Ph.D., on October 24, 2010. (ECF
No. 10-7, Ex. 4F.) Dr. Quinn administered the Wechsler Adult Intelligence Scale – Fourth
Edition, and reported that Plaintiff’s scores “appear[ed] to reflect his current level of
functioning.” Among the scores were a verbal comprehension index in the “extremely low
range,” reported as “VCI = 66; 95% confidence interval = 62 – 73,” and a working memory
index in the “extremely low range,” reported as “WMI = 66; 95% confidence interval 61 –
75.” (R. 569 – 570.) Dr. Quinn also reported a perceptual reasoning (performance) score
of 96. (R. 569.)
In addition to the testing performed by Dr. Quinn, the record contains subsequent
test results reported by Jonathan Siegel, Ph.D., who administered the WAIS-IV on
November 21, 2011. (ECF No. 10-7, Ex. 18F.) Dr. Siegel reported that Plaintiff scored a
verbal comprehension index of 76, and a working memory index of 63. (R. 730.) Dr.
Siegel also reported a perceptual reasoning index of 92. (Id.) Based on these and other
scores, Dr. Siegel assessed a full-scale IQ of 75, with a 95% chance that the full-scale IQ
falls in the range of 71 – 80. (Id.)
On December 15, 2011, Maine Disability Determination Services conducted a case
analysis that included consideration of the findings of Dr. Siegel. (ECF No. 10-3, Ex. 6A.)
The analysis, endorsed by Brian Stahl, Ph.D., suggests that listing 12.05 was not implicated
by Dr. Siegel’s findings, and that Plaintiff’s mental impairments were assessed only in
terms of the listings for organic mental disorders, affective disorders, and anxiety-related
disorders. (R. 135 – 136.) Dr. Stahl, however, noted that the evidence of record supported
a finding of borderline intellectual functioning and that Plaintiff’s “[c]onditions do not
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meet or equal a listing.” (Id.) Similarly, upon reconsideration, Disability Determination
Services, in a determination endorsed by Peter Allen, Ph.D., did not consider listing 12.05,
identified borderline intellectual functioning as an impairment, and based the
determination on a residual functional capacity for a subset of simple work. Neither of the
determinations entered by Disability Determination Services acknowledged Dr. Quinn’s
2010 IQ testing.
The ALJ considered at step 3 whether Plaintiff could be found disabled based on
listing 12.05. Unlike the Disability Determination Services consulting physicians, the ALJ
considered the weight to be given to Dr. Quinn’s 2010 report of IQ test results. The ALJ
concluded that the 66 verbal comprehensive index score reported by Dr. Quinn was invalid
for the following reasons: (1) Plaintiff achieved a score of 76 on that same index when
tested by Dr. Siegel; (2) Dr. Quinn had not been able to report a full scale IQ score; and (3)
Plaintiff had significantly higher scores in other tested areas, and had demonstrated an
ability to perform “such complex tasks as scuba diving, driving, carpentry, house building,
and auto repair.” (ALJ Decision ¶ 5, R. 23.)
According to Plaintiff, “[g]iven the conflict …, the ALJ’s decision to invalidate one
set of scores is not supported by substantial evidence [and] [t]he matter should be remanded
for testimony of a medical expert as to whether the Plaintiff’s conditions meet or equal
Listing 12.05(C).” (Statement of Errors at 3, citing the decision in Plourde v. Barnhart,
No. 1:02-cv-164-JAW, 2003 WL 22466176 (D. Me. Nov. 18, 2003)). Plaintiff argues that
the ALJ impermissibly judged matters entrusted to experts and that she did not discuss
whether Plaintiff’s impairments, in combination, equal the listing. (Statement of Errors 4
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– 5.)

Defendant maintains the ALJ properly performed her obligation to reconcile

conflicting expert opinion evidence and permissibly relied on the IQ test results reported
by Dr. Siegel. (Response at 3 – 4.)
The ALJ must resolve conflicts in the evidence, including conflicts as to a plaintiff’s
intellectual functioning. Libby v. Astrue, No. 2:10-cv-00292-JAW, 2011 WL 2940738, at
*4 (D. Me. July 19, 2011). Here, the ALJ determined that Dr. Siegel’s report of IQ indices
based on the WAIS-IV were the most reliable indicator of Plaintiff’s intellectual
functioning. To support his claim of error, Plaintiff relies on the verbal index of 66 reported
by Dr. Quinn.
The ALJ’s decision not to rely on the index of 66 is supported by substantial
evidence because Dr. Quinn reported a range of likely accurate measures, which range
included a score as high as 73 and, because Plaintiff, when later tested by Dr. Siegel,
achieved an index of 76. Furthermore, as to Plaintiff’s medical equivalency argument,
Plaintiff’s performance on the WAIS-IV administered by Dr. Siegel supports the finding
that Plaintiff’s IQ is above 70 in all of the indices relevant to listing 12.05(C). Evidently
based on the findings, the Disability Determination Services consulting physicians ruled
out listing 12.05. The ALJ expressly found that “the severity of [Plaintiff’s] mental
impairments, considered singly and in combination, do not meet or medically equal the
criteria of listings 12.02, 12.04, 12.05, and 12.06.” (R. 21.) The ALJ’s findings regarding
Plaintiff’s ability to engage in relatively involved activities such as scuba diving, home
construction, and auto repair, establish that a remand for the ALJ to discuss medical
equivalency is unnecessary.

Plaintiff’s ability to engage in such activities on an
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independent basis is the kind of evidence a reasonable person could accept as adequate to
support the finding that Plaintiff’s impairments are not the functional equivalent of the
impairment described in the listing.3
B.

RFC Assessment
Plaintiff also argues the ALJ’s RFC assessment is not supported by substantial

evidence because the ALJ relied significantly on the opinion of Donald Trumbull, M.D.,
the consultative expert record reviewer, who did not review material new findings by
consultative examiner David Axelman, M.D. According to Plaintiff, with the new findings,
expressed approximately four years after Dr. Trumbull’s assessment, the ALJ could not
properly rely on Dr. Trumbull’s assessment. (Statement of Errors at 7 – 11.) Finally,
Plaintiff contends that in the ALJ’s attempt to assess the new evidence, the ALJ
impermissibly judged matters entrusted to experts. (Id. at 12 – 14.)
The record reveals that Plaintiff has, in addition to various musculoskeletal
impairments, longstanding carpal tunnel syndrome, as described in a medical history
provided by Dr. Axelman. (Oct. 27, 2011, Consultative Examination Report at 2, Ex. 17F.)
In his 2011 report, Dr. Axelman noted the absence of nerve conduction studies, but credited
a report of “difficulty with some fine motor skills” based on “positive Tinel and Phalen’s
sign[s]” and notable swelling in the interphalangeal joints. (Id. at 2 – 3.) Dr. Axelman

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Although Plaintiff relies on it as persuasive precedent, Plourde v. Barnhart is not inconsistent with this
recommendation. In Plourde, the Court remanded for further proceedings to address whether the claimant’s
condition met or equaled listing 12.05(C), where one report of IQ testing included indices within the
relevant range, but another report of IQ testing did not. Rather than choosing the expert report with the
higher test results, the ALJ simply concluded that the record could not “definitively” show a valid IQ in the
required range. In other words, the ALJ did not adopt the test results that reflect the claimant’s IQ indices
were above 70. 2003 WL 22466176, at *3.

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assessed “[c]arpal tunnel syndrome which should be evaluated, with numbness and
relatively decreased grip and fine motor skills.” (Id. at 4.)
On December 15, 2011, without the benefit of a further evaluation, Dr. Trumbull
opined that Plaintiff has severe carpal tunnel syndrome. (Ex. 6A, R. 134.) In his RFC
assessment, however, Dr. Trumbull described only manipulative limitations associated
with a right shoulder impairment, and reported that Plaintiff has an “unlimited” ability to
use his hands. (Ex. 6A, R. 137.) Dr. Trumbull apparently concluded that the carpal tunnel
syndrome was a factor that limited Plaintiff to medium exertion. On reconsideration, dated
May 7, 2012, J.H. Hall, MD, agreed with Dr. Trumbull’s assessment. (Ex. 7A, R. 147,
150.)
On June 30, 2015, Dr. Axelman conducted another physical examination of
Plaintiff. (Ex. 33F.) Concerning carpal tunnel syndrome, Dr. Axelman noted nerve
conduction studies performed in August 2013, “showing moderate carpal tunnel bilaterally
and focal ulnar neuropathy bilaterally with activity” that had “somewhat worsened with
constant numbness and decreased grip.” (R. 836.) Dr. Axelman found 5/5 strength in the
grip, difficulty opposing the thumbs to the fingers, poor manual dexterity, and
interphalangeal swelling. (R. 838.) Dr. Axelman also assessed osteoarthritis in the hands
and poor fine motor skills, but noted that surgery had not been recommended. (R. 838.)
In addition, Dr. Axelman found Plaintiff could carry a significant amount of weight for
short durations, but had “quite diminished” fine motor skills. (R. 839.)
Dr. Axelman provided an assessment of Plaintiff’s RFC through a medical source
statement. (Ex. 33F, R. 840.) In Dr. Axelman’s view, Plaintiff is precluded from lifting
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weight greater than 20 pounds. (Id. at 6, R. 840.) The assessment is inconsistent with a
finding that Plaintiff can perform “medium work,” which can include lifting as much as 50
pounds and frequent lifting of weights as high as 25 pounds. 20 C.F.R. § 416.967(c). On
August 30, 2013, Peter Arabadjis, M.D., reported that the results of an electrodiagnostic
study were abnormal. (Ex. 31F, R. 831-32.) Additionally, Dr. Axelman assessed a
limitation to occasional use of hands. (R. 842.) No expert who has provided an opinion
on Plaintiff’s RFC, other than Dr. Axelman, has considered the more recent findings
associated with Plaintiff’s carpal tunnel syndrome.
The ALJ found that carpal tunnel syndrome was among Plaintiff’s severe physical
impairments. (ALJ Decision ¶ 4, R. 18 – 19.) The ALJ determined that the limitations
imposed by carpal tunnel syndrome limit Plaintiff to “frequent” handling, fingering,
feeling, and use of hand tools. A limitation to “frequent” is in essence a finding that
Plaintiff can engage in work that requires handling, fingering, feeling, and the use of hand
tools as often as 2/3 of the time. Titles II & XVI: Determining Capability to Do Other
Work — the Medical-Vocational Rules of Appendix 2, SSR 83-10 (S.S.A. 1983)
(“‘Frequent’ means occurring from one-third to two-thirds of the time.”). Because none of
the consulting experts who found Plaintiff to have the same or greater residual RFC
considered the more recent findings associated with Plaintiff’s carpal tunnel syndrome,
without further expert evidence, the ALJ’s assessment that Plaintiff can engage in frequent
use of his hands and perform medium work is not supported by substantial evidence.4

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In the absence of the more recent evidence, including the nerve conduction study, the consultative experts
all assessed Plaintiff as “unlimited” with respect to the use of his hands. The ALJ’s finding implicitly

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Because the ALJ independently judged matters entrusted to experts, the ALJ’s findings are
not conclusive. Nguyen, 172 F.3d at 35.
The failure to obtain further expert evidence before determining whether Plaintiff is
disabled was not harmless error. The record expert evidence suggests a potential disability
finding if the ALJ found that Plaintiff could only occasionally use his hands for handling,
feeling and using tools:
Q: Dr. Mitsilovich, on the second hypothetical, if it was limited to occasional
use of the right and left hand in reaching, fingering, handling, feeling, and
pushing and pulling, what impact would that have if that was added to the
second hypothetical?
A: None of the jobs that I provided could be performed.
(ECF No. 10-2, R. 119.) Furthermore, due to Plaintiff’s age, the Medical-Vocational
Guidelines would direct a finding of disabled if Plaintiff is limited to light exertion.
Medical-Vocational Guidelines, Appendix 2 to 20 C.F.R. Part 404, Subpart P, § 202.00.
The source statement and studies generated after the consultative experts’ opinions
are not consistent with a finding that Plaintiff can perform medium work. Accordingly,
remand is appropriate to obtain an expert assessment.

acknowledges that such an assessment is not consistent with the record. (R. 27: “I generally give great
weight to the state agency consultants …, with some modification to account for the claimant’s upper
extremity conditions …. I have added to their upper extremity limitations to account for the claimant’s
CTS ….” (citing inter alia, Peter Arabadjis, M.D.’s electrodiagnostic report, Ex. 31F).) Defendant’s
alternative argument that the ALJ’s finding on these issues is the product of “common sense” is not
persuasive. (Response at 9.) Although this case involves an alleged error in the RFC finding rather than at
step 2, this case is similar to Bernier v. Colvin, No. 2:14-cv-178-JHR, 2015 WL 1780148, at *3 (D. Me.
Apr. 17, 2015), in which the Court found that the ALJ could not independently assess the significance of
an EMG test report describing “mild” carpal tunnel syndrome on a common sense basis.

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CONCLUSION
Based on the foregoing analysis, I recommend that the Court vacate the
administrative decision and remand for further proceedings.
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
of 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.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 7th day of November, 2017.

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