KAHN v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
Filing
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REPORT AND RECOMMENDED DECISION re 13 Social Security Statement of Errors/Fact Sheet. Objections to R&R due by 2/1/2018. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BRETTEN J. KAHN,
Plaintiff
v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant
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1:17-cv-00212-DBH
REPORT AND RECOMMENDED DECISION
On Plaintiff Bretten J. Kahn’s application for disability insurance benefits under
Title II and supplemental security income benefits under Title XVI 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 to obtain 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 affirm the administrative decision.
The Administrative Findings
The Commissioner’s final decision is the April 20, 2016, decision of the
Administrative Law Judge (ALJ). (ECF No. 9-2, PageID ## 38 – 48.)1 The ALJ’s decision
tracks the familiar five-step sequential evaluation process for analyzing social security
disability claims, 20 C.F.R. §§ 404.1520, 416.920.
The ALJ found that Plaintiff has a severe, but non-listing-level impairment
consisting of anxiety disorder, and that Plaintiff, despite his impairment, retains the residual
functional capacity (RFC) to perform a full range of work at all levels of exertion provided
the work does not involve interaction with the public and does not require more than
occasional interaction with co-workers and supervisors. (Id. ¶¶ 3 – 5.) Consistent with the
findings, the ALJ found that Plaintiff can no longer perform past relevant work as a home
care attendant. (Id. ¶ 6.)
Based on the testimony of a vocational expert, the ALJ determined that a person
with Plaintiff’s RFC, age, and vocational background would be able to engage in
substantial gainful activity in other occupations, including the representative occupations
of janitor, kitchen helper, and packager. (Id. ¶¶ 7 – 10.) Accordingly, the ALJ concluded
that Plaintiff was not under a disability during the relevant time period. (Id. ¶ 11.)
Standard of Review
A court must affirm the administrative decision provided the ALJ applied the correct
legal standards 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.
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Because the Appeals Council found no reason to review that decision (ECF No. 9-2, PageID # 26), the
Acting Commissioner’s final decision is the ALJ’s decision.
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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 erred because he (1) improperly evaluated Plaintiff’s
subjective report of symptoms, and (2) afforded minimal weight to the opinion of
Plaintiff’s treating therapist and substantial weight to the opinion of a non-examining
psychological consultant. (Statement of Errors, ECF No. 13.) Through his arguments,
Plaintiff challenges the ALJ’s RFC determination, which is made at a stage of the
sequential evaluation process at which Plaintiff retains the burden to demonstrate his
incapacity to perform substantial gainful activity. Rodriguez v. Sec’y of HHS, 923 F.2d
840 (1st Cir. 1990); Roberts v. Barnhart, 67 F. App’x 621, 622 (1st Cir. 2003) (per curiam).
1.
The ALJ’s consideration of Plaintiff’s statements
Plaintiff contends the ALJ did not properly evaluate certain statements Plaintiff
made regarding the degree of his limitation. As part of the RFC assessment, the ALJ
evaluated Plaintiff’s subjective report of symptoms pursuant to a two-step process. (R. 18
– 20, ECF No. 9-2, PageID ## 43 – 45.) Initially, the ALJ considered whether the objective
medical evidence of record disclosed medically determinable impairments that reasonably
could cause the degree of limitation reported by Plaintiff. (R. 19.) The ALJ concluded
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that Plaintiff’s medically determinable impairment, anxiety, could result in the limitation
alleged by Plaintiff, but that the objective medical record did not independently substantiate
the degree of limitation Plaintiff alleged.2 (R. 19: “Overall, the records fail to reveal any
clinical signs or objective findings to support his allegations of significant functional
limitations.”) The ALJ, therefore, proceeded to the second step of the evaluation process.
At the second step, the ALJ reviewed Plaintiff’s statements relevant to his anxiety
symptoms. In particular, the ALJ considered Plaintiff’s reports that he did not like to go
out in public and thus typically spends most of the day attending to the home and playing
computer games, that he has no real world friends other than his fiancé,3 that he sometimes
plays computer games with online friends throughout the evening and well into the
morning, that he was able to travel by public air transportation, that his travels included a
trip to Disney World, and that he produced YouTube videos of some of his game playing,
which generated approximately 200 subscribers to his YouTube channel. (R. 20.)
The ALJ found Plaintiff’s statements to be consistent with the degree of functional
limitation set forth in the RFC assessment. In addition, the ALJ observed that Plaintiff told
In his step 3 discussion of whether Plaintiff’s anxiety met a listing, the ALJ concluded that Plaintiff has
mild limitation in activities of daily living, moderate limitation in social functioning, and mild limitation in
the area of concentration, persistence, and pace. (R. 16.) The ALJ noted that mental status observations
by providers were “relatively normal,” that Plaintiff “exhibited no cognitive deficits or difficulties
maintaining socially appropriate behavior,” and that Plaintiff’s cognition was at a “relatively high level.”
(R. 16.) When assessing Plaintiff’s RFC, the ALJ considered Plaintiff’s statements about his experience
with anxiety; specifically, Plaintiff’s report that he takes medication for his condition, does not like to be
seen in public and feels that he is being judged, feels unsafe in stores, is fearful of others in close proximity,
has been bullied in school, has difficulty getting along with supervisors, needs to take frequent breaks when
engaging in activities he enjoys (video production), has problems with memory, and has periods of
moodiness. (R. 18 – 19.) The ALJ also observed that Plaintiff’s mental status exams were within normal
limits, and that Plaintiff did not have a record of acute care or inpatient hospitalization. (R. 19 – 20.)
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There is evidence in the record suggesting that Plaintiff has friends other than his fiancé. (Ex. 9F, R. 414.)
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a consultative examiner that he did not like the idea of working on a full-time basis, and
would “hate his life if he had to work consistently and be like a zombie.” (R. 20, citing
Ex. 1F.)4
Citing Social Security Ruling 16-3p, “Evaluation of Symptoms in Disability
Claims,” 81 Fed. Reg. 14166-01 (Mar. 16, 2016), Plaintiff argues that the Acting
Commissioner cannot consider statements Plaintiff made about his lack of interest in
working on a full time basis when evaluating Plaintiff’s statements regarding the intensity,
persistence, and limiting effects of his symptoms. (Statement of Errors at 8 – 9.) Plaintiff
contends the ALJ violated the Ruling and otherwise failed to evaluate properly the record
regarding the degree to which Plaintiff’s symptoms impair Plaintiff’s functioning. (Id. at
5 – 8.)
The prefatory summary of Social Security Ruling 16-3p states that the Ruling
“provides guidance about how [components of the Social Security Administration5 will]
evaluate statements regarding the intensity, persistence, and limiting effects of symptoms
in disability claims under Titles II and XVI of the Social Security Act (Act) and blindness
claims under Title XVI of the Act.” 81 Fed. Reg. at 14166. In the statement of purpose,
the Ruling explains that, based on a commissioned study, the Administration determined it
The ALJ also considered the testimony of Plaintiff’s fiancé, who reported that she has to remind Plaintiff
of things he needs to do around the house, and who described Plaintiff as anxious, incapable of living alone,
and unwilling to leave a hotel room if too many people were staying there. She also stated that Plaintiff
stays in the home 99 percent of the time, makes cool videos, cares for the couple’s three cats, prepares
meals when she is at work, has a driver’s license, and handles money. (R. 20.)
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Social Security Rulings are “binding on all components of the Social Security Administration.” 20 C.F.R.
§ 402.35(b)(1).
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should “eliminate[e] the use of the term ‘credibility’ from [its] sub-regulatory policy,” i.e.
former Ruling 96-7p, because the term does not appear in the Administration’s regulations.
Id. at 14167.
Ruling 16-3p provides that the evaluation of a claimant’s symptoms is governed by
a two-step process consisting of (1) a determination whether the claimant has one or more
medically determinable impairments that reasonably could be expected to produce the
alleged symptoms, and (2) an evaluation of the intensity and persistence of the symptoms
to determine the extent of any resulting limitation in the claimant’s ability to perform workrelated activities. Id. at 14167 – 68. While the Ruling clarifies the extent to which an ALJ
can rely on a credibility determination (i.e., adjudicators “will not assess an individual’s
overall character or truthfulness in the manner typically used during an adversarial court
litigation”), the Ruling does not render immaterial evidence related to the reason a claimant
might have filed a claim for disability. Id. at 14171. The Ruling specifically provides that
the second step of the process for evaluating symptoms requires the consideration of “other
evidence” if a fully favorable disability decision cannot be reached solely on the objective
medical evidence. Id. at 14169. Such evidence “includes statements from the individual,
medical sources, and any other sources that might have information about the individual’s
symptoms.” Id. The Ruling recognizes that a claimant or others might make statements
that are consistent or inconsistent with the claimant’s subjective reports of symptoms.
Thus, the Ruling provides:
If an individual’s statements about the intensity, persistence, and limiting
effects of symptoms are consistent with the objective medical evidence and
the other evidence of record, we will determine that the individual’s
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symptoms are more likely to reduce his or her capacities to perform workrelated activities for an adult …. In contrast, if an individual’s statements
about the intensity, persistence, and limiting effects of symptoms are
inconsistent with the objective medical evidence and the other evidence, we
will determine that the individual’s symptoms are less likely to reduce his or
her capacities to perform work-related activities ….
Id. at 14170. Furthermore, the Ruling specifies that the Administration “will consider the
consistency of the individual’s own statements.” Id. While consistency generally favors
the claimant, inconsistency may mean, “but does not necessarily mean,” that the claimant’s
report of symptoms is “inaccurate.” Id. 6
In short, the Ruling does not prevent the ALJ from considering how, if at all,
Plaintiff’s statement regarding his view of work is consistent or inconsistent with the record
evidence. Here, the ALJ referred to the statement in the context of his evaluation of
whether Plaintiff’s daily activities were consistent with Plaintiff’s alleged functional
impairment. (R. 21 – 22.) The ALJ reasonably observed that the difference between the
alleged impairment and the reported daily activities, which demonstrated work capability,
could be Plaintiff’s motivation to work. The Ruling does not prohibit such logical
reasoning. Roberts, 67 F. App’x at 622 (noting the importance of keeping in mind that
“resolution of conflicts in the evidence and the ultimate determination of disability are for
the ALJ, not the courts”); Smith v. Colvin, No. 15-2521, 2016 WL 4757403, at *1 (1st Cir.
Aug. 30, 2016) (“Resolving conflicts in the evidence and drawing inferences from the
See also, e.g., Cole v. Colvin, 831 F.3d 411, 412 (7th Cir. 2016) (“The change in wording is meant to
clarify that administrative law judges aren’t in the business of impeaching claimants’ character; obviously
administrative law judges will continue to assess the credibility of pain assertions by applicants, especially
as such assertions often cannot be either credited or rejected on the basis of medical evidence.”).
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record are the ALJ’s prerogatives.”). The ALJ’s conclusions regarding Plaintiff’s activities
and his reported symptoms are thus supported by the record.
Plaintiff also argues the ALJ erred when he considered Plaintiff’s claims regarding
the impact of the medications he takes. The ALJ observed that “[p]ersistent side effects of
medications, which would preclude performance of sustained competitive work over a
normal workday, in the positions described by the impartial vocational expert have not
been established.” (R. 19.) Although Plaintiff argues the ALJ’s determination constitutes
error, Plaintiff has failed to direct the Court to any persuasive evidence to suggest that the
side effects of Plaintiff’s medications are incompatible with the RFC finding. Indeed, the
opinion evidence on which Plaintiff relies to support his disability claim does not identify
a medication side effect as a basis for Plaintiff’s alleged disability. (Ex. 8F, ECF No. 9-7.)
2.
The ALJ’s assignment of weight to medical opinion evidence
Plaintiff argues the ALJ erred when he assigned greater weight to the residual
functional capacity opinion of a consulting examiner than he assigned to the opinion of
Plaintiff’s treating therapist. (Statement of Errors at 9 – 11.)
Plaintiff’s therapist, Kim Patnode, LCSW, provided a Mental Residual Functional
Capacity Assessment form to support Plaintiff’s disability claims. Ms. Patnode, who began
treating Plaintiff in June 2014, concluded that Plaintiff could not work on a regular and
sustained basis due to social anxiety. (Ex. 8F, R. 395, ECF No. 9-7, PageID # 425.) Ms.
Patnode found Plaintiff’s limitation to be marked (seriously limited) with respect to
understanding and remembering very short and simple instructions, maintaining attention
and concentration for extended periods, completing a normal workday without
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interruptions from symptoms, performing at a consistent pace without an unreasonable
number of breaks, responding appropriately to changes in the work setting, and setting
realistic goals or making plans independently of others. (R. 393 – 95.) Additionally, she
found Plaintiff’s limitation to be extreme (meaning the activity would be precluded)
regarding the ability to work with others without being distracted by them, to make simple
work-related decisions, to ask simple questions and request assistance, to travel and use
public transportation, and to tolerate normal levels of stress. (Id.)
On January 26, 2015, Brian Stahl, Ph.D., upon review of the record,7 determined
that the record supported the finding of a severe anxiety disorder. (Ex. 6A, R. 104, ECF
No. 9-3, PageID # 130.) Dr. Stahl assessed Plaintiff to be markedly limited in his ability
to interact appropriately with the general public, and moderately limited in his ability to
accept instruction and respond appropriately to criticism from supervisors, and to respond
appropriately to changes in the work setting. (R. 106 – 107.) Dr. Stahl concluded that
Plaintiff has the residual functional capacity to engage in full time work activity that does
not require interaction with the public.
The ALJ gave little weight to Ms. Patnode’s opinion in part because he found the
opinion to be conclusory and inconsistent with the longitudinal record, and because Ms.
Patnode appeared to rely on Plaintiff’s subjective report of symptoms, which report could
not be objectively quantified. (R. 21.) In the ALJ’s view, claimant was “essentially …
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Defendant provided Plaintiff a consultative examination with Patricia Kolosowski, Ph.D., on September
19, 2013. (Ex. 1F, R. 300, ECF No. 9-7, PageID # 330.) Dr. Kolosowski’s report was available to Dr.
Stahl and nothing in her findings is inconsistent with Dr. Stahl’s assessment. Dr. Kolosowski’s report
contains the statement attributed to Plaintiff regarding his disinterest in full-time work activity (“a regular
job all day long”). (Id., R. 302.)
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high functioning,” capable of independent travel and not “homebound” by anxiety, and
capable of performing in the workplace to the degree reflected in the ALJ’s RFC
determination. (Id.) Under the Commissioner’s regulatory scheme, the ALJ was permitted
to consider and assess the medical opinions from different sources.
42 C.F.R. §§
404.1527(f), 416.927(f). The ALJ was required to explain the weight he assigned to the
opinions to permit an understanding of the ALJ’s reasoning. Id. §§ 404.1527(f)(2),
416.927(f)(2). The ALJ provided his reasons for affording little weight to Ms. Patnode’s
opinion, and Plaintiff has failed to identify evidence in the record that would compel a
contrary conclusion. Furthermore, Plaintiff has not identified any objective medical
evidence that is inconsistent with Dr. Stahl’s residual functional capacity assessment. Id.
§§ 404.1527(c)(4), 416.927(c)(4).
Finally, Plaintiff argues that Dr. Stahl’s residual functional capacity opinion cannot
serve as substantial evidence in support of the ALJ’s RFC finding or be assigned greater
weight than Ms. Patnode’s opinion because Dr. Stahl reviewed a more limited medical
record than the record available to Ms. Patnode. (Statement of Errors at 11.) This Court
has observed:
There is no hard and fast rule requiring renewed evaluation by a consulting
expert every time a disability claimant experiences new medical events or
obtains new diagnoses in the interval between the initial DDS consultant’s
RFC assessment and the date of the administrative hearing. Particularly
where pain is concerned, an Administrative Law Judge has the unenviable
duty to make a credibility determination, 20 C.F.R. §§ 404.1529(a), (c)(1),
(c)(4), 416.929(a), (c)(1), (c)(4); SSR 96–7p, and the evidence contained in
new medical records may, in some cases, simply dovetail with the credibility
determination. Where the dividing line exists is difficult to determine and
will depend on the particular facts of a case.
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Bachelder v. SSA Comm’r, No. 1:09-cv-436-JAW, 2010 WL 2942689, at *6 (July 19,
2010), report and recommendation adopted, 2010 WL 3155151 (D. Me. Aug. 9, 2010).
See also Rose v. Shalala, 34 F.3d 13, 18 (1st Cir. 1994) (“[T]he amount of weight that can
properly be given the conclusions of non-testifying, non-examining physicians will vary
with the circumstances, including the nature of the illness and the information provided the
expert. In some cases, written reports submitted by non-testifying, non-examining
physicians cannot alone constitute substantial evidence, although this is not an ironclad
rule.” (citations and internal quotation marks omitted)).
In this case, the medical records generated after Dr. Stahl’s report do not include
any information that could reasonably be construed to question Dr. Stahl’s RFC
assessment. Between Dr. Stahl’s January 26, 2015, assessment of Plaintiff’s RFC and the
March 14, 2016, hearing before the ALJ, Plaintiff received services from Dianne Raymond,
NP, at Health Reach Community Health Centers/Belgrade Regional Health Center, the
same care facility with which Plaintiff treated prior to Dr. Stahl’s assessment. (Ex. 9F,
ECF No. 9-7.) The services included an initial diagnostic evaluation for purposes of
medication management, and a series of visits for “medication management without
psychotherapy.” (E.g., Ex. 9F at 405.) Ms. Raymond did not offer an opinion on Plaintiff’s
work capacity. The records generated by Ms. Raymond’s treatment did not include any
information that would suggest that Dr. Stahl’s opinion and the ALJ’s reliance on the
opinion were unsupportable.
In sum, the ALJ’s evaluation of the expert opinion evidence of record did not
involve the disregard of any material evidence, the misapplication of the governing law or
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regulations, or the exercise of independent lay judgment on matters entrusted to experts.
Accordingly, Plaintiff’s argument regarding the ALJ’s assessment of the expert evidence
fails.
CONCLUSION
Based on the foregoing analysis, I recommend the Court affirm the administrative
decision.
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 18th day of January, 2018.
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