DEXTER v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
Filing
21
MEMORANDUM DECISION ON DEFENDANTS MOTION TO AMEND RECOMMENDED DECISION denying 17 Motion to Amend. By MAGISTRATE JUDGE JOHN H. RICH III. (lrc)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
PAULA L. DEXTER,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant
)
)
)
)
)
)
)
)
)
)
No. 2:11-cv-213-GZS
MEMORANDUM DECISION ON DEFENDANT’S MOTION TO AMEND
RECOMMENDED DECISION
The defendant moves to amend my recommended decision in this Social Security
benefits appeal, contending that the recommended decision “contains a material misstatement of
fact.”
Defendant’s Motion to Amend (“Motion”) (Docket No. 17). The motion, if granted,
would reverse my recommended decision by eliminating its factual predicate. The plaintiff has
not responded to the motion. For the reasons that follow, I deny the motion.
The defendant challenges the following two sentences in footnote 2 of the recommended
decision:
The state-agency psychologist upon whose report the administrative law
judge relied, Record at 10-11, did not reject Dr. Kolosowski’s IQ scores
for this or any other reason. The court should be reluctant to provide an
alternative medical conclusion, as distinguished from medical evidence,
to support an administrative law judge’s Step 3 finding when neither the
administrative law judge nor the expert upon whose opinion he relies so
much as mentions such an alternative conclusion.
Report and Recommended Decision (Docket No. 16) at 4 n.2.
1
The defendant contends that the state-agency psychologist, David Houston, Ph.D., did in
fact reject Patricia Kolosowski, Ph.D.’s IQ scores. Motion at 1. This argument is based on the
following entry in Dr. Houston’s report of his review of the plaintiff’s medical records:
8/3/09 Kolosowski PhD: Ox3, denies SI/HI, no difficulties with panic
attacks or anxiety, polite, cooperative, articulate and able to express
herself in a goal directed fashion.
WAIS-III: VIQ 66, PIQ 69, FSIQ 65 at times needed encouragement to
respond, often would not guess or might say “not sure”[,] needed to be
encouraged several times to actually respond[.] Did not present with
consistent effort on some of the subtests. She was cooperative and did
make some attempts[,] for the most part understood directions as
presented to her. Had some difficulties with success on [the] block
design, however.
***
Dx: no dx, R/o mental retardation[.]1
Record at 342.
All of the entry set forth above is merely repeated from Dr. Kolosowski’s report. Id. at
471-74. It cannot reasonably be read as a statement of Dr. Houston’s opinion that the plaintiff’s
IQ scores as found by Dr. Kolosowski were invalid. Indeed, Dr. Kolosowski added to the “rule
out mental retardation” entry the words “additional testing or information might be needed.” Id.
at 474. Thus, she did not diagnose mental retardation, but she also did not rule it out finally.
This medical information does not compel the conclusion that the Kolosowski IQ scores are
“invalid,” nor does it demonstrate that Dr. Houston “rejected” those IQ scores.
The defendant asserts that Dr. Houston “declined to check the box on his report
indicating a ‘valid’ IQ score of 60 through 70 that would implicate Listing 12.05C (R. 334).”
Motion at 2. That characterization reads too much into the fact that Dr. Houston made no marks
whatsoever on the page of the defendant’s standard Psychiatric Review Technique form that
1
“Dx” means “diagnosis.” Bond v. Social Sec. Admin. Com’r, No. 1:11-cv-00054-JAW, 2012 WL 313727, at *4
(D. Me. Jan. 30, 2012). “R/o” means “rule out.” Morales Mulero v. Secretary of Health & Human Servs., 915 F.2d
1557 (table), 1990 WL 152362, at *2 (1 st Cir. Sept. 19, 1990).
2
deals with mental retardation. Record at 334. The most likely reason for Dr. Houston’s failure
to write (or check) anything on that page is that Dr. Kolosowski indicated that she could not
determine whether the plaintiff suffered from mental retardation, so Dr. Houston felt that he also
was without sufficient information to draw that conclusion.
The defendant also points, Motion at 1, to Dr. Houston’s statement that the “Claimant’s
test results are underestimates due to inconsistent effort. CE [Dr. Kolosowski] reported that her
abilities are higher than the test results. Borderline intellectual functioning present.” Record at
346. Again, this is a recitation of Dr. Kolosowski’s findings, not necessarily a rejection of the IQ
scores achieved by the plaintiff. If Dr. Houston rejected those scores as invalid, he did not say
so, nor did he provide any statement that necessarily implies such a rejection. The defendant
does not even suggest that the administrative law judge did so.2
The Seventh Circuit addressed a similar situation in Ribaudo v. Barnhart, 458 F.3d 580
(7th Cir. 2006), and stated as follows, in relevant part:
[T]his court has also held that an ALJ should mention the specific
listings he is considering and his failure to do so, if combined with a
perfunctory analysis, may require a remand.
We agree with Ribaudo that the ALJ did not provide a sufficient
analysis of the Step 3 question. What is troubling is that the ALJ, in
addition to not mentioning [the Listing at issue], did not evaluate any of
the evidence on its required criteria that is favorable to Ribaudo.
Id. at 583 (citations and internal quotation marks omitted). That is what happened in the
administrative law judge’s opinion in this case. Compare Burns v. Astrue, No. 1:10-CV-42,
2012 WL 966166, at *4 (E.D. Tenn. Mar. 21, 2012) (where administrative law judge did not
2
If the administrative law judge “adopt[ed] Dr. Houston’s opinion that Listing 12.05C was not implicated,” as the
defendant suggests, Motion at 2, he apparently saw no need to say that he did so, or even that he interpreted Dr.
Houston’s report to express that opinion.
3
mention Listing 12.05, but did explicitly consider elements involved in determining whether
plaintiff met or equaled that Listing, no need for remand).
For the foregoing reasons, the defendant’s motion to amend, which in reality is a motion
to reverse the recommended decision,3 is DENIED.
NOTICE
In accordance with Federal Rule of Civil Procedure 72(a), a party may service and file
an objection to this order within fourteen (14) days after being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right to review by the
district court and to any further appeal of this order.
Dated this 6th day of May, 2012.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
3
If accepted, the defendant’s position would excuse the administrative law judge’s failure to discuss Listing 12.05C
on the ground that he adopted, sub silentio, Dr. Houston’s opinion that Listing 12.05C was not implicated.
4
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?