PHELPS v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 22

REPORT AND RECOMMENDED DECISION re 15 Social Security Statement of Errors/Fact Sheet. Objections to R&R due by 5/29/2018. By MAGISTRATE JUDGE JOHN C. NIVISON (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
LYNETTE P.,
Plaintiff
v.
SOCIAL SECURITY ADMINISTRATION
ACTING COMMISSIONER,
Defendant

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1:17-cv-00311-JDL

REPORT AND RECOMMENDED DECISION
ON PLAINTIFF’S STATEMENT OF ERRORS
On Plaintiff Lynette P.’s application for 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 June 17, 2016, decision of the Administrative
Law Judge. (ALJ Decision, ECF No. 8-2.)1 The ALJ’s decision tracks the familiar five-step
sequential evaluation process for analyzing social security disability claims, 20 C.F.R. §§

Because the Appeals Council found no reason to review that decision, the Acting Commissioner’s final
decision is the ALJ’s decision.
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404.1520, 416.920.
The ALJ found that Plaintiff has severe, but non-listing-level impairments consisting
of post-traumatic stress disorder, depression, alcohol and opiate dependence, degenerative
disc disease, sacroiliitis, chronic obstructive pulmonary disease, and coronary artery disease.
(ALJ Decision at 3, ¶¶ 2 – 3, R. 15 – 16.) In the ALJ’s assessment, while the impairments
restrict Plaintiff’s work capacity, Plaintiff has the residual functional capacity (RFC) to
perform light work. As determined by the ALJ, Plaintiff can perform simple, routine tasks
for 2 hour intervals, but cannot negotiate ropes, ladders, or scaffolds; may only occasionally
crawl, stoop, kneel, or crouch; must avoid concentrated exposure to cold and wet
environments; cannot remember, understand, or carry out detailed instructions; and may only
occasionally interact with the public in the work setting. (Id. at 6, ¶ 4, R. 18.)
Given the RFC assessment, as well as Plaintiff’s age and vocational background, and
with the aid of vocational expert testimony, the ALJ determined that Plaintiff can perform
substantial gainful activity in such representative occupations as package sorter, collator
operator, and laundry sorter. (Id. at 13 – 14, ¶ 9, R. 25 – 26.) Accordingly, the ALJ found
Plaintiff was not disabled under the Social Security Act for the period commencing September
25, 2013, the date of Plaintiff’s SSI application, through the date of decision. (Id. at 14, ¶ 10,
R. 26.)
Standard of Review
A court must affirm the administrative decision provided the decision is based on the
correct legal standards and is supported by substantial evidence, even if the record contains
evidence capable of supporting an alternative outcome. Manso-Pizarro v. Sec’y of HHS, 76
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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 challenges the ALJ’s finding regarding her mental RFC for social interaction.
Plaintiff argues that the ALJ’s RFC finding regarding Plaintiff’s ability to interact with
members of the public and with supervisors and coworkers is not supported by substantial
evidence. The ALJ limited Plaintiff to “occasional” interaction with the public, and found
that Plaintiff was not limited in her ability to interact with supervisors and coworkers.
Because at the time of hearing Plaintiff had not received any counseling for more than
one year, (Hr’g Tran. at 5 – 6, ECF No. 8-2, R. 36 – 37), the ALJ referred Plaintiff to a
consultative examining psychologist, Peter Ippoliti, Ph.D. (Ex. 17F, ECF No. 8 – 9, R. 786 –
793.) Using a checkbox assessment form approved by the Social Security Administration,
Dr. Ippoliti provided his opinion regarding Plaintiff’s mental RFC. Dr. Ippoliti assessed
Plaintiff as markedly limited in all areas associated with social interaction in the workplace.
(R. 792.) Beneath the checkboxes, the form asks the examiner to identify “the factors (e.g.,
the particular medical signs, laboratory findings, or other factors described above) that support
your assessment.” Dr. Ippoliti left the space blank. However, in support of his narrative
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finding that Plaintiff “is likely to be reactive and defensive, possibly misconstruing the
behavior of others,” Dr. Ippoliti pointed to his consultative evaluation report. (Id.) In the
portion of his report labeled Psychological Source Statement, Dr. Ippoliti observed that
Plaintiff appeared to be experiencing symptoms associated with trauma history and severe
situational psychosocial stressors, including homelessness and lack of treatment services. Dr.
Ippoliti found Plaintiff to be a person likely to experience cognitive difficulty, particularly in
relation to abstract reasoning, problem-solving, and memory. Dr. Ippoliti believed it likely
that Plaintiff would have significant difficulty meeting any of the social demands of work,
due to “reactivity to others, defensiveness and negativistic attitude,” and “cognitive issues.”
(R. 789 – 90.)
The ALJ discounted Dr. Ippoliti’s assessment concerning supervisors and coworkers
in part because Dr. Ippoliti saw Plaintiff only once, and, in the ALJ’s view, Dr. Ippoliti’s
findings regarding Plaintiff’s limitations were not fully supported by the record. (R. 23 – 24.)
As to social interaction, the ALJ reasoned that marked limitations were not evident given
Plaintiff’s ability to maintain friendships and her ability to interact appropriately with medical
professionals. (R. 24.) Additionally, the ALJ concluded that the state agency experts, Dr.
Leigh Haskell, Ph.D. (Ex. B2A, ECF No. 8-3, R. 90), and Mary Burkhart, Ph.D. (Ex. B5A,
ECF No. 8-3, R. 108), offered more reliable assessments of Plaintiff’s functional capacity for
social interaction in the workplace. (Id.)
According to Dr. Haskell, who reviewed the record in connection with the agency’s
initial denial of benefits in December 2013, Plaintiff is markedly limited in the ability to
interact with the general public, moderately limited in the ability to accept instructions and
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respond appropriately to criticism from supervisors, not significantly limited in the ability to
get along with coworkers and peers without distracting them or exhibiting behavioral
extremes, and not significantly limited in the ability to maintain socially appropriate behavior.
(R. 90.) In support of the assessment, Dr. Haskell offered the following narrative:
She can interact adequately with supervisors and coworkers, but not with the
public. She reports that she does not have difficulty getting along with others,
including authority figures. She reports some social isolation. She attends
appointments with multiple providers and interacts appropriately. She reports
that she socializes daily on the phone or in person. She uses public
transportation.
Id. Dr. Burkhart, who reviewed the record in July 2014 in connection with the agency’s
review of Plaintiff’s reconsideration request, reiterated Dr. Haskell’s findings. (R. 108.)
Plaintiff argues that Dr. Ippoliti’s examination opinion should have been afforded
significant weight and that the ALJ, in failing to assign the opinion significant weight, judged
matters entrusted to the medical experts.

Defendant contends the ALJ’s reasoning in

discounting Dr. Ippoliti’s assessment of Plaintiff’s social interaction ability is sound, and that
the ALJ did not judge matters reserved to the experts.
All three experts ruled out public interaction. The ALJ thus erred when he found that
Plaintiff can perform work that entails “occasional” interaction with the public. The ALJ’s
error, however, does not require a different result because, as Defendant argues, the
representative occupations identified by the vocational expert all have the designation
“People: 8 – Taking Instructions – Helping,” and none is defined in a way that suggests a need
for public interaction. (Defendant’s Response at 8, ECF No. 17.)
At step 5 of the evaluation process, the burden shifts to the Commissioner to establish

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that there are jobs the claimant can perform that exist in the national economy in significant
numbers, giving particular attention to the claimant’s age, education, work experience, and
residual functional capacity. 20 C.F.R. §§ 404.1520(a)(4)(v), (g)(1), 416.920(a)(4)(v), (g)(1);
Goodermote v. Sec’y of Health & Human Servs., 690 F.2d 5, 7 (1st Cir. 1982). This burden
is typically addressed through a combined reliance on the Medical–Vocational Guidelines, 20
C.F.R. Part 404, Subpart P, Appendix 2, and the testimony of a vocational expert, who is
asked to consider one or more hypothetical RFC findings. Goodermote, 690 F.2d at 7; Arocho
v. Sec’y of HHS, 670 F.2d 374, 375 (1st Cir. 1982).
This Court has held that a Dictionary of Occupational Titles job definition that includes
the designation “People: 8—Taking Instructions—Helping,” and does not otherwise mention
public interaction will support a step 5 determination for a claimant capable of handling “usual
work situations not involving the public,” provided that the job exists in significant numbers
in the national economy. Gleason v. Colvin, No. 1:15-cv-00012-NT, 2015 WL 7013661, at
*5 (Oct. 15, 2015), adopted, 2015 WL 7012739 (D. Me. Nov. 12, 2015).2 Because the
occupations identified by the ALJ at step 5 of the sequential evaluation process are all coded
in the Dictionary of Occupational Titles as jobs that do not require public interaction, the
ALJ’s failure to provide the vocational expert with a hypothetical that precluded public
interaction is harmless error, and the ALJ’s step 5 determination is supported by substantial
evidence.3

See Dictionary of Occupational Titles (4th ed., Rev. 1991) (“Parts of the Occupational Definition”), 1991
WL 645965, available at https://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOTPARTS.HTM (last
visiting May 14, 2018).
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The jobs and their codes are as follows: package sorter (DOT # 222.687-022), collator operator (DOT #
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The principal issue in the case, therefore, is whether the ALJ’s finding that Plaintiff is
able to interact appropriately with supervisors and co-workers in the context of simple work
demands is supported by substantial evidence on the record. Drs. Haskell and Burkhart, while
concluding that Plaintiff was moderately limited in her ability to interact with supervisors and
co-workers, cited Plaintiff’s ability to interact with medical providers and her self-report of
social interactions and use of public transportation as reliable evidence to support the
conclusion that Plaintiff could interact with supervisors and co-workers in a workplace where
she performed only “simple” tasks.4 (R. 89, 108.)
The ALJ reached the same conclusion. Specifically, the ALJ pointed to Plaintiff’s
ability to maintain friendships, communicate effectively with others (notably care providers),
the lack of any report in the treatment records of an impairment related to speech or
communication, and Plaintiff’s ability to use public transportation when necessary to support
his conclusion.

In the ALJ’s view, Plaintiff’s limitation in social interaction is more

appropriately deemed “moderate,” with a capacity for social interaction with supervisors and
co-workers, rather than marked, without such capacity.5 (R. 23 – 24.)

208.685-010), and laundry sorter (DOT # 361.687-014). Each job is coded with the “People:8” designation
(the fifth digit in the DOT code). Furthermore, the job definitions do not suggest the worker would be required
to interact with the public.
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Plaintiff argues the opinions of Drs. Haskell and Burkhart do not constitute substantial evidence because they
found a moderate degree of social limitation, yet failed to assess any actual limitation in their RFC assessments.
(Statement of Errors at 6.) However, an assessment of a moderate degree of social impairment is not
inconsistent with an assessment that the claimant can interact sufficiently in the workplace for purposes of
simple work. See, e.g., Newcomb v. Colvin, No. 2:15-cv-00463-DBH, 2016 WL 3962843, at *6 (D. Me. July
22, 2016), report and recommendation adopted, 2016 WL 4250259 (D. Me. Aug. 10, 2016)
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The ALJ conducted a thorough review of the record, including the notation of a psychiatric evaluation signed
by Donna Huff, NP, on October 31, 2013. In her report, NP Huff noted a number of Plaintiff’s challenges,
including Plaintiff’s report of “marked or persistent fear in social or performance situations when exposed to
unfamiliar people or possible scrutiny.” (Ex. 12F at 30, ECF No. 8-8, R. 463.) Neither NP Huff, nor anyone
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“[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 nontestifying, non-examining physicians cannot alone constitute substantial evidence, although
this is not an ironclad rule.” Rose v. Shalala, 34 F.3d 13, 18 (1st Cir. 1994) (citations omitted).
Given the issues in this case, the ALJ’s decision to place great weight on the mental RFC
opinions offered by Drs. Haskell and Burkhart was not unreasonable. Drs. Haskell and
Burkhart based their opinions on a longitudinal record of counseling sessions and medication
management, and they offered a reasonable assessment of Plaintiff’s capacity for social
interaction in a vocational setting.6 While Dr. Ippoliti identified what he considered to be
more severe symptoms that would preclude interaction with supervisors and coworkers, his
assessment was based on a single examination, and that examination followed an almost twoyear period in which Plaintiff, according to the ALJ, elected not to obtain any mental health
treatment, even though the services of her long-time provider were available to her.
The ALJ also conducted a hearing at which he had the opportunity to assess Plaintiff’s
responses to questions designed to probe the extent of her limitations. The ALJ determined
that Plaintiff was capable of communicating effectively with others, in part based on her
maintenance of longstanding friendships, and in part based on her capability to communicate

in her practice, however, offered a functional capacity assessment or analysis.
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In her function report completed on June 5, 2014, Plaintiff suggested that she is able to get along with
authority figures, self-assessing her ability in this regard as “fine when I have to.” (Ex. 9E, R. 251.)
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effectively7 with her treatment providers. “The credibility determination by the ALJ, who
observed the claimant, evaluated [her] 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. Sec’y of HHS, 829 F.2d 192, 195 (1st Cir. 1987).
A review of the record thus reveals that the ALJ’s decision is supported by substantial
evidence, and that the ALJ did not misapply the law or adjudge matters that are entrusted to
experts. Plaintiff, therefore, cannot prevail on her challenge to the ALJ’s determination
regarding Plaintiff’s ability to interact with supervisors and co-workers. To the extent the
ALJ erred by not including greater restrictions on Plaintiff’s ability to work with the public,
the error is harmless insofar as the available jobs in the economy identified by the vocational
expert for a person with Plaintiff’s limitations do not require interaction with the public.
Accordingly, Plaintiff has failed to establish that the ALJ erred in his determination that
Plaintiff is not disabled for the claimed period.
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
Providers and a consulting examiner have noted that Plaintiff is “pleasant” (R. 306), “pleasant [and]
articulate” (R. 372), “Cooperative, Easily Engageable, Pleasant” with good eye contact (R. 440), and “polite”
and “calm” with clear speech (R. 777).
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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 15th day of May, 2018.

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