TRACY v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
Filing
26
REPORT AND RECOMMENDED DECISION re 19 Social Security Statement of Errors/Fact Sheet. Objections to R&R due by 12/1/2021. By MAGISTRATE JUDGE JOHN C. NIVISON. (MFS)
Case 1:20-cv-00437-GZS Document 26 Filed 11/17/21 Page 1 of 13
PageID #: 1905
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
CANDICE T.,
Plaintiff
v.
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant
)
)
)
)
)
)
)
)
)
)
1:20-cv-00437-LEW
REPORT AND RECOMMENDED DECISION
On Plaintiff’s application for supplemental security income benefits under Title
XVI of the Social Security Act, Defendant, the Social Security Administration
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 March 16, 2020 decision of the
Administrative Law Judge. (ALJ Decision, ECF No. 15-2).1 The ALJ’s decision tracks
the familiar five-step sequential evaluation process for analyzing social security disability
Because the Appeals Council found no reason to review that decision (R. 1), Defendant’s final decision
is the ALJ’s decision.
1
Case 1:20-cv-00437-GZS Document 26 Filed 11/17/21 Page 2 of 13
PageID #: 1906
claims, 20 C.F.R. § 416.920.
The ALJ found that Plaintiff has severe, but non-listing-level impairments
consisting of depressive disorder, anxiety disorder, attention deficit hyperactivity disorder
(ADHD), obstructive sleep apnea, and obesity. (R. 17.) The ALJ further found that despite
her impairments, Plaintiff has the residual functional capacity (RFC) to perform work at
all exertional levels except Plaintiff must avoid concentrated exposure to respiratory
irritants and dangerous machinery; she can sustain attention and focus well enough to
complete simple tasks with infrequent and minor changes to tasks; she should not work
with the general public but can work occasionally with supervisors and coworkers. (R.21.)
Based on the RFC finding, Plaintiff’s work experience, and the testimony of a
vocational expert (VE), the ALJ concluded that Plaintiff can perform substantial gainful
activity existing in the national economy, including representative occupations of hand
packager, order filler, photocopy machine operator, and industrial cleaner. (R. 25.) The
ALJ determined, therefore, that Plaintiff was not disabled. (Id.)
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 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
2
Case 1:20-cv-00437-GZS Document 26 Filed 11/17/21 Page 3 of 13
PageID #: 1907
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 that the ALJ erred in the assessment of Plaintiff’s RFC and,
therefore, the vocational expert’s testimony regarding jobs the Plaintiff can perform is
unsupported by substantial evidence.
A. Plaintiff’s RFC
Plaintiff first contends that the ALJ did not properly evaluate the opinions of two
consultative psychological examiners, and that the findings of the state agency
psychological consultants upon whom the ALJ relied are unsupported by the evidence.
James R. Werrbach, Ph.D, examined Plaintiff in July 2016 and diagnosed Plaintiff
with depressive disorder not otherwise specified, panic disorder with agoraphobia, and
ADHD. (R. 799-803.) He found Plaintiff to be cooperative, clean, and neat, with
intelligence in the average range. (R. 802.) He also found that she was able to concentrate,
her memory appeared intact, and her thought processes were sequential, clear, and
coherent. (Id.) He noted, however, that Plaintiff’s social judgment appeared to be
compromised, and she looked rather anxious and frightened during the interview. (R. 80203.) Dr. Werrbach wrote:
It would appear that [Plaintiff] would not have difficulty doing a workrelated activity such as understanding. It would appear that [Plaintiff] would
have difficulty doing work-related activities such as memory, sustained
concentration, and persistence because of her depressive symptoms and
[ADHD] symptoms. It would appear that these symptoms would seriously
3
Case 1:20-cv-00437-GZS Document 26 Filed 11/17/21 Page 4 of 13
PageID #: 1908
affect her ability to do these activities. Her ability to socially interact with
others and adapt to new social situations also appears to be significantly
impaired given her panic disorder with resulting agoraphobia.
(R. 803.) The ALJ found Dr. Werrbach’s opinion partially persuasive.
Peter J. Ippoliti, Ph.D, examined Plaintiff in February 2018 and diagnosed her with
depressive disorder, PTSD, a learning disability, and ADHD “by history.” (R. 1788.) He
found that while her cognitive functioning appeared to be generally good as to attention,
concentration and problem-solving, she evidenced some difficulty in abstract reasoning,
fund of information, and short-term memory. (Id.) He concluded that she could “likely
follow basic instructions, and she might be able to engage in some limited and clearlydefined work activity [in] a highly supportive environment.
She would likely be
overwhelmed and reactive to stress and criticism.” (Id.) The ALJ found Dr. Ippoliti’s
opinion partially persuasive, agreeing that Plaintiff is limited to simple unskilled work not
involving the public, but noting that other evidence of record does not support his
conclusion that Plaintiff is easily overwhelmed. (R. 23.)
State agency psychological consultants Brian Stahl, Ph.D., and David R. Houston,
Ph.D., found Plaintiff to have moderate limitations in each of the four paragraph B criteria
of Listings 12.04 (depressive, bipolar and related disorders) and 12.06 (anxiety related
disorders), found at 20 C.F.R. Pt. 404, Supt. P, App.1, ¶ A.: (1) understanding,
remembering, or applying information; (2) interacting with others; (3) concentrating,
persisting, or maintaining pace; and (4) adapting or managing oneself. (R. 128, 146.) Drs.
Stahl and Houston determined that Plaintiff was markedly limited in her ability to interact
appropriately with the public and moderately limited in her ability to accept instructions
4
Case 1:20-cv-00437-GZS Document 26 Filed 11/17/21 Page 5 of 13
PageID #: 1909
and respond appropriately to criticism from supervisors. (R. 132, 149.) Dr. Houston found
that Plaintiff was also moderately limited in her ability to get along with co-workers or
peers without distracting them or exhibiting behavioral extremes. (R. 150.) Dr. Stahl and
Dr. Houston concluded that Plaintiff “is not able to work with the public but can work with
coworkers and supervisors,” explaining that she plays board games and goes out to dinner
with others, gets along with healthcare providers, and shops. (R. 132, 150.) Dr. Stahl and
Dr. Houston both reviewed the evaluations of Dr. Ippoliti and Dr. Werrbach and observed
them to be consistent with their own findings. (R. 130, 148.)
The ALJ found the opinions of Drs. Stahl and Houston to be persuasive, noting that
they found that claimant could perform at least simple routine tasks not involving work
with the public. (R. 24.) The ALJ explained that their findings were generally consistent
with the evidence of record, and their reliability was enhanced by their specific references
to evidence supporting their findings. (Id.) The ALJ adopted the limitations assessed by
Drs. Stahl and Houston by limiting Plaintiff to no work with the public; the ALJ also
limited Plaintiff to only occasional work with coworkers and supervisors. (R. 21.)
Plaintiff argues that the ALJ’s RFC assessment is not supported by the record
because although Drs. Stahl and Houston found the assessments of Drs. Werrbach and
Ippoliti consistent with their own findings, Drs. Stahl and Houston failed to incorporate the
social interaction limitations identified by the examining consultants—by finding that
Plaintiff could work without limitation with coworkers—and failed to explain the basis for
the lack of social interaction limitations. In support of her argument, Plaintiff cites this
Court’s decision in Parker v. Colvin, No. 1:15-cv-00446-JHR, 2016 WL 4994997 (D. Me.
5
Case 1:20-cv-00437-GZS Document 26 Filed 11/17/21 Page 6 of 13
PageID #: 1910
Sept. 19, 2016), in which the Court pointed to the failure of the state agency consultant,
upon whom the ALJ relied to conclude the plaintiff was not disabled, to explain the basis
of a finding that the plaintiff could interact with coworkers and supervisors.
Contrary to Plaintiff’s argument, neither Parker nor any other authority supports the
finding of error in this case. The findings of Dr. Stahl and Dr. Houston include an
explanation for the lack of social interaction limitations. For instance, both consultants
noted that Plaintiff “plays board games and goes out to dinner with others. She gets along
with healthcare providers and shops.” (R. 132, 150.)2 Furthermore, the fact that Drs. Stahl
and Houston did not find that Plaintiff was limited in her ability to work with coworkers
and supervisors does not mean the ALJ erred when she found their findings persuasive and
relied upon them. An ALJ can permissibly rely on an expert’s RFC finding yet issue a
more restrictive RFC. Lee v. Berryhill, No 2:17-cv-00040-JHR, 2018 WL 793595, at *5
(D. Me. Feb. 8, 2018).3
Plaintiff also contends the ALJ’s assessment of the opinions of Drs. Werrbach and
Ippoliti is not supported by substantial evidence because the ALJ found that Plaintiff has
2
As also noted by the ALJ, Plaintiff, in one of her adult function reports, denied any difficulty in getting
along with others, and wrote that she “mostly gets along “with authority figures,” but has “issues with
teachers.” (R. 19, 327-30.)
3
Plaintiff also contends that while Drs. Stahl and Houston found Plaintiff moderately impaired in social
interactions, the ALJ found her only mildly impaired. The sub-findings of agency nonexamining
consultants’ RFC assessments are not their RFC assessments, however. The RFC form the state agency
consultants completed states that “the actual mental [RFC] assessment is recorded in the narrative
discussion(s), which describes how the evidence supports each conclusion,” which is documented in
explanatory text boxes found at the end of each category of limitation (i.e., the four paragraph B criteria).
(R. 131, 148.) In other words, “an agency nonexamining consultant’s RFC assessment is contained in the
narrative portion summarizing his sub-findings.” Christine C. v. Saul, No. 2:19-cv-00266-GZS, 2020 WL
3047365, at *4 (D. Me. June 7, 2020) (aff’d, June 23, 2020) (quotation marks omitted).
6
Case 1:20-cv-00437-GZS Document 26 Filed 11/17/21 Page 7 of 13
PageID #: 1911
only a mild limitation in interacting with others and did not identify any limitations
associated with Plaintiff’s anxiety. The ALJ’s assessment of the paragraph B criteria is,
however, supported not only by reference to the experts’ findings but also by citation to
the other evidence of record. In addition to the activities and reports regarding Plaintiff’s
social interactions discussed herein, the ALJ explained that the records reflect a generally
conservative course of psychiatric care, with no psychiatric hospitalizations or emergency
room visits, no report of any conflict with medical providers or difficulties managing mood
during office visits, and that despite episodes of social stressors (including housing,
transportation and financial issues, caring for a disabled child), Plaintiff has the ability to
obtain support services to assist with welfare benefits, child care services, housing, and
personal medical needs. (R. 20.) The ALJ also noted that Plaintiff was discharged from
mental health therapy after missing multiple appointments, and she takes no psychotropic
medications due to concerns about side effects. (R. 22.) In sum, the ALJ adequately
identified record evidence to support her decision to discount to some degree the opinions
of Drs. Werrbach and Ippoliti and place greater weight on the findings of Drs. Stahl and
Houston. Irlanda Ortiz v. Sec’y Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991);
see also, Brown v. Astrue, No. 2:10-cv-27-DBH, 2010 WL 5261004, at *3 (D. Me. Dec.
16, 2010) (aff’d, Jan. 4, 2011) (ALJs are entitled to resolve conflicts in the medical
evidence). Overall, Plaintiff’s challenge appears to a request for Court to weigh the various
expert opinions. The Court, however, is not to substitute its judgment for the ALJ’s
judgment. Irlanda Ortiz, 955 F.2d at 769 (“[T]he resolution of conflicts in the evidence is
for the [ALJ], not the courts.”).
7
Case 1:20-cv-00437-GZS Document 26 Filed 11/17/21 Page 8 of 13
PageID #: 1912
Even if the ALJ erred in the assessment of Plaintiff’s social interaction limitations,
remand is not warranted. The Dictionary of Occupational Title (DOT) rates all the jobs
suggested by the vocational expert—hand packager, order filler, photocopy machine
operator, and industrial cleaner—as “not significant” for the category “People: 8 – Taking
Instructions – Helping.” DOT § 920.587-018 (hand packager), 1991 WL 687916; DOT §
922.687-058 (order filler), 1991 WL 688132; DOT § 207.685-014 (photocopy machine
operator), 1991 WL 671745; DOT § 381.687-018 (industrial cleaner), 1991 WL 673258.
This Court “has construed that rating as consistent with limitations to occasional, brief, and
superficial contact with coworkers and supervisors.” Shatema B. v. Saul, No. 1:19-cv00566-NT, 2020 WL 4383802, at *4 (D. Me. July 31, 2020) (aff’d, Aug. 17, 2020) (quoting
Connor v. Colvin, No. 1:13–cv–00219–JAW, 2014 WL 3533466, at *4 (D. Me. July 16,
2014)).
Listing 12.00(F)(2)(c) defines a “moderate” limitation in one of the paragraph B
criteria as “functioning in this area independently, appropriately, effectively and on a
sustained basis is fair.” 20 C.F.R. Pt. 404, App. 1. If the ALJ erred in finding Plaintiff’s
ability to interact with others, including co-workers and supervisors, was only mildly
limited, Plaintiff has failed to show that a finding of a moderate limitation would preclude
the performance of any of the jobs identified by the vocational expert. See Jesse W. v.
Kijakazi, No. 2:20-cv-00358-DBH, 2021 WL 4060138, at *4 (D. Me. Sept. 5, 2021).
Plaintiff’s argument regarding the ALJ’s assessment of her physical limitations also
do not warrant remand. State agency medical consultants Edward Ringel, M.D., and
Robert Hayes, D.O., each found that despite Plaintiff’s reported history of back pain, given
8
Case 1:20-cv-00437-GZS Document 26 Filed 11/17/21 Page 9 of 13
PageID #: 1913
that Plaintiff never had any injections, did not take chronic medications, had no
neurosurgical or pain management consultations, and lacked any confirmatory imaging or
laboratory abnormalities, Plaintiff did not have a medically determinable physical
impairment. (R. 127, 145.) Both experts concluded that Plaintiff’s obesity did not result
in any functional limitation and, therefore, was non-severe. (Id.) Neither consultant
mentioned Plaintiff’s obstructive sleep apnea and neither Dr. Ringel nor Dr. Hayes
assessed an RFC.
Fred Fridman, D.O., performed a consultative examination of Plaintiff in February
2018, the results of which Dr. Ringel and Dr. Hayes reviewed before they made their
findings. (R. 1790-93; 122-23, 140.) Dr. Fridman’s physical findings were benign except
for the observation of mild curvature of the spine and Plaintiff’s discomfort with right
shoulder and thoraco-lumbar range of motion testing. (1791-92.) He determined that
Plaintiff had no limitations in her ability to sit, stand, walk, lift, carry, climb, kneel, crouch,
crawl, stoop, reach, pull, handle, finger, or feel. (R. 1793.)
Unlike the State agency medical consultants and consultative examiner, the ALJ
determined that Plaintiff’s obesity and obstructive sleep apnea were severe impairments.
(R. 17.) With respect to Plaintiff’s obesity, the ALJ wrote:
Although there is no specific weight or BMI [body mass index] that
establishes obesity as a “severe” or “not severe” impairment, I have
considered the limiting effects of obesity, both alone, and in combination
with other impairments, when assessing if it significantly limits her physical
or mental ability to do basic work activities. We assess the RFC to show the
effect obesity has upon the person’s ability to perform routine movement and
necessary physical activity within the work environment. People with
obesity may have limitations in the ability to sustain a function over time. In
this case, [Plaintiff]’s obesity may affect her ability to tolerate extreme heat,
9
Case 1:20-cv-00437-GZS Document 26 Filed 11/17/21 Page 10 of 13
PageID #: 1914
humidity, or hazards. I have considered [Plaintiff]’s weight, including the
impact on her other body symptoms, within the functional limitations
determined herein.
(R. 22.) As to Plaintiff’s obstructive sleep apnea, the ALJ summarized Plaintiff’s treatment
history following a take-home sleep study in February 2019, which study revealed a pattern
of severe obstructive apneas and hypopneas, accompanied by significant snoring and
moderate hypoxemia. (See R. 1388.) The ALJ noted that although Plaintiff was fitted with
an auto titrating continuous positive airway pressure (CPAP) machine, at her one-week
follow-up appointment, Plaintiff was found to be only 43% compliant with its use. (R. 22,
citing R. 1385.) She had a mask adjustment, then later reported getting sick due to an odor
from the machine. (Id.) Although she was scheduled for a machine check-up, she missed
that appointment and multiple appointments thereafter. (R. 1385-86.) The AJL explained
that “[d]espite this evidence of non-compliance which might contribute to [Plaintiff’s]
ongoing symptoms,” she added environmental limitations to Plaintiff’s RFC. (R. 22.) The
sleep study and subsequent treatment records were submitted after Drs. Fridman, Ringel
and Hayes rendered their opinions.
The ALJ determined that the findings and conclusions of Drs. Ringel, Hayes and
Fridman were persuasive “because they accurately reflect the minimal objective findings
in the medical records.” (R. 23.) Nevertheless, the ALJ limited Plaintiff to avoiding
concentrated exposure to respiratory irritants and dangerous machinery. (R. 21.) The ALJ
explained that her findings and corresponding limitations were based on her giving
“maximum deference to [Plaintiff]’s subjective reports to the extent they are supported by
the medical evidence of record.” (Id.)
10
Case 1:20-cv-00437-GZS Document 26 Filed 11/17/21 Page 11 of 13
PageID #: 1915
Plaintiff argues that the findings and conclusions of Drs. Ringel, Hayes and Fridman
cannot provide substantial evidence to support the ALJ’s RFC assessment because, “as a
practical matter,” the ALJ could not “have given any weight to the opinions” of these
medical consultants, none “of whom had occasion to assess [Plaintiff’s physical] RFC.”
Staples v. Berryhill, No. 1:16-cv-00091-GZS, 2017 WL 1011426, at *4 (D. Me. Mar. 15,
2017) (aff’d, Mar. 30, 2017).
In Staples, the Court remanded the matter because the ALJ gave little weight to the
state agency consultants’ opinions and the ALJ’s RFC assessment was not supported by
expert opinion or the result of “permissible commonsense judgment.” Id. at *2. Here, the
ALJ found the state agency consultants’ opinions persuasive, but explained that her RFC,
including the greater social interaction limitations, was based on “maximum deference” to
Plaintiff’s self-reports as supported by other evidence. (R. 23.) “In doing so, [s]he gave
[Plaintiff] the benefit of the doubt, adopting an RFC more favorable to [Plaintiff] than the
evidence – the agency [examining and] nonexamining consultants’ opinions that [Plaintiff]
had no limitations – would otherwise support. That, in turn, rendered any error in assessing
the RFC … harmless.” Alexander J.M. v. Saul, No. 2:20-cv-00142-LEW, 2021 WL
674013, at *3 (D. Me. Feb. 21, 2021); see also, Kristina D.B. v. Berryhill, No. 1:18-cv00088-JHR, 2019 WL 1407407, at *4 (D. Me. Mar. 28, 2019) (ALJ did not interpret raw
medical data in crediting plaintiff’s allegations of difficulties in social functioning); Lee v.
Berryhill, No. 2:17-cv-00040-JHR, 2018 WL 793595, at *5 (D. Me. Feb. 8, 2018) (ALJ
can give the claimant the “benefit of the doubt” and recognized limitations in the RFC
finding beyond those expressed in an opinion that the ALJ might otherwise rely on as
11
Case 1:20-cv-00437-GZS Document 26 Filed 11/17/21 Page 12 of 13
PageID #: 1916
substantial evidence of a less restrictive RFC); Soto v. Colvin, No. 2:14-cv-28-JHR, 2015
WL 58401, at *3 (D. Me. Jan. 5, 2015) (“A claimant may not obtain a remand on the basis
of an RFC that is more favorable than the evidence would otherwise support.”). Plaintiff
has also failed to identify any evidence that would support greater restrictions than the ALJ
assessed, which “is necessary to establish that the limitation assigned by the [ALJ] is not
harmless error.” Paquin v. Colvin, No. 1:13-CV-360-JDL, 2014 WL 6679123, at *3 (D.
Me. Nov. 25, 2014).
Moreover, an ALJ “may assess an RFC without relying on a medical opinion where
the medical evidence ‘shows relatively little physical impairment,’ so long as he or she
does not render a medical judgment that is beyond the bounds of a lay person’s
competence.” Bowden v. Colvin, No. 1:13-CV-201-GZS, 244 WL 166496, at * 3 (D. Me.
Apr. 25, 2014) (quoting Manso-Pizarro, 76 F.3d at 17). As Drs. Ringel and Hayes
observed, the medical evidence in the record supporting physical limitations is minimal,
thus the ALJ “could rely on [Plaintiff]’s own testimony about the limitations imposed by”
Plaintiff’s obesity and obstructive sleep apnea. Id. The lack of medical evidence with
respect to these impairments further supports the applicability of the “long-standing rule”
that remand is not appropriate when an ALJ assesses a more favorable RFC than the
evidence would otherwise support. Id.
B. Vocational Testimony
Plaintiff challenges the testimony of the vocational expert. Because Plaintiff’s
challenge depends on the Court finding that the ALJ’s RFC findings are erroneous, given
the above analysis, Plaintiff’s argument must fail.
12
Case 1:20-cv-00437-GZS Document 26 Filed 11/17/21 Page 13 of 13
PageID #: 1917
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, within fourteen
(14) days of 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.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 17th day of November, 2021.
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?