CONNOLLY v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
Filing
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MEMORANDUM DECISION denying 13 Motion to Admit Evidence; denying 14 SS Statement of Errors/Fact Sheet By MAGISTRATE JUDGE JOHN H. RICH III. (nrg)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
GARY J. CONNOLLY,
Plaintiff
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant
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No. 2:14-cv-292-JHR
MEMORANDUM DECISION1
The plaintiff in this Social Security Disability (“SSD”) appeal2 moves to admit new
evidence (ECF No. 13) and contends that the administrative law judge wrongly failed to find that
his impairment met the criteria of Listing 12.06, erroneously evaluated his credibility, improperly
weighed the opinion of a treating psychiatrist, and wrongly failed to account for the opinion of a
state-agency reviewing psychologist.
I deny the motion and affirm the decision of the
commissioner.
1
The parties have consented to have me preside over all proceedings in this case, including the entry of judgment.
ECF No. 20.
2
This action is properly brought under 42 U.S.C. § 405(g). The commissioner has admitted that the plaintiff has
exhausted his administrative remedies. The case is presented as a request for judicial review by this court pursuant to
Local Rule 16.3(a)(2), which requires the plaintiff to file an itemized statement of the specific errors upon which he
seeks reversal of the commissioner’s decision and to complete and file a fact sheet available at the Clerk’s Office, and
the commissioner to file a written opposition to the itemized statement. Oral argument was held before me on March
11, 2015, pursuant to Local Rule 16.3(a)(2)(D), requiring the parties to set forth at oral argument their respective
positions with citations to relevant statutes, regulations, case authority, and page references to the administrative
record.
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I.
Motion to Admit Evidence
The plaintiff asks the court to add to the evidence in the administrative record before the
court a disability rating issued to him by the Veterans’ Administration almost nine months after
the date of the administrative law judge’s decision. Plaintiff’s Motion to Admit New Evidence
(“Motion”) (ECF No. 13) at [2]. He argues that this evidence should be added to the record under
20 C.F.R. § 405.331(c) and Babb v. Astrue, No. 2:10-cv-49-DBH, 2010 WL 5465839 (D. Me. Dec.
29, 2010). Id. at [3]. As the plaintiff’s attorney conceded at oral argument, the cited authority
does not apply to the plaintiff’s motion.
The cited regulation, 20 C.F.R. § 405.331, is entitled “Submitting evidence to an
administrative law judge” and only applies to evidence that the claimant wants to add to the record
“before the [administrative law judge’s] hearing decision is issued.” 20 C.F.R. § 405.331(c). As
the plaintiff’s motion itself acknowledges, that date, February 22, 2013, Record at 35, passed
months before the document at issue was dated, November 14, 2013, and a few months shy of two
years before his motion was filed, on December 2, 2014. Babb construes the regulation in
circumstances where the claimant submitted the evidence in question fewer than five days before
the date of the administrative hearing, 2010 WL 5465839, at *3, a period of time to which the
regulation applies, although the court declined to consider the evidence in Babb for another reason.
The correct standard applicable to this motion is found in 42 U.S.C. § 405(g). The plaintiff
must show that the new evidence is material and that there is good cause for his failure to
incorporate it into the record earlier. In the case at hand, the plaintiff’s application is for SSD, for
which his eligibility ended on December 31, 2011. Record at 23. A finding by the Veterans’
Administration on November 14, 2013,3 that the plaintiff was disabled beginning on February 8,
3
The VA’s letter is dated November 14, 2013; the enclosed Rating Decision is dated November 12, 2013.
2
2013, Motion at [2], is not material to the SSD claim. McDonald v. Social Sec. Admin. Comm’r,
No. 1:09-cv-473-JAW, 2010 WL 2680338, at *2 (D. Me. June 30, 2010).4 In addition, while there
may have been “good cause” not to submit the document at issue before November 14, 2013, but
see Lyons v. Barnhart, No. 03-47-B-W, 2004 WL 202837, at *4 (D. Me. Jan. 30, 2004) (“good
cause” not shown merely by fact that evidence did not exist as time of hearing; otherwise, nearly
all late-submitted evidence would be cognizable), the plaintiff offers no explanation for the period
of more than a year after the document was provided to him before he sought to add it to the record.
See, e.g., Black v. Astrue, No. 1:10-cv-175-JAW, 2011 WL 1226027, at *6 (D. Me. Mar. 29,
2011).5
The motion to add the Veterans’ Administration document to the record is denied.
II.
The Merits
In accordance with the commissioner’s sequential evaluation process, 20 C.F.R. §
404.1520, Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the
administrative law judge found, in relevant part, that the plaintiff was insured for purposes of SSD
only through December 31, 2011, Finding 1, Record at 23; that through the date last insured, the
plaintiff suffered from depression, post-traumatic stress disorder, and general anxiety disorder,
impairments that were severe but which, considered separately or in combination, did not meet or
medically equal the criteria of any impairment listed in Appendix 1 to 20 C.F.R. Part 404, Subpart
P (the “Listings”), Findings 3-4. Id. at 23-25; that the plaintiff had the residual functional capacity
(“RFC”) to perform work at all exertional levels, but was unable to interact with the public, unable
The Veterans Administration decision specifically states that “[w]e determined that the . . . service connected
condition has worsened[.]” ECF No. 13-1 at 2. Accordingly, it could not be evidence, before the date last insured, of
any disability worse than the 30% disability rating that the Veterans Administration had assigned to the plaintiff prior
to November 2013. Id.
5
At oral argument, the plaintiff’s attorney stated that the plaintiff did not present the document to his attorneys until
shortly before they moved to add it to the record. This explanation does not demonstrate good cause for the delay.
4
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to perform other than simple tasks, able to understand, remember, and carry out simple, repetitive
tasks, interact appropriately with coworkers and supervisors, and adapt to routine changes in the
work setting, Finding 5, id. at 27; that, through the date last insured, the plaintiff was unable to
perform any past relevant work, Finding 6, id. at 33; that, given his age (58 on the date last insured),
at least a high school education, work experience, and RFC, use of the Medical-Vocational Rules
in Appendix 2 to 20 C.F.R. Part 303, Subpart P (the “Grid”) as a framework for decision-making
led to the conclusion that, through the date last insured, there were jobs existing in the national
economy in significant numbers that the plaintiff could have performed, Findings 7-10, id. at 3334; and that, as a result, the plaintiff was not under a disability, as that term is defined in the Social
Security Act, at any time from January 29, 2011, the alleged date of onset of disability, through
the date last insured, Finding 11, id. at 34. The Appeals Council declined to review the decision,
id. at 1-3, making it the final determination of the commissioner. 20 C.F.R. § 404.981; Dupuis v.
Secretary of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).
The standard of review of the commissioner’s decision is whether the determination made
is supported by substantial evidence. 42 U.S.C. § 405(g); Manso-Pizarro v. Secretary of Health
& Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be
supported by such relevant evidence as a reasonable mind might accept as adequate to support the
conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Secretary of
Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
The administrative law judge reached Step 5 of the sequential evaluation process, at which
stage the burden of proof shifts to the commissioner to show that a claimant can perform work
other than his past relevant work. 20 C.F.R. § 404.1520(g); Bowen v. Yuckert, 482 U.S. 137, 146
n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support
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of the commissioner’s findings regarding the plaintiff’s RFC to perform such other work. Rosado
v. Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).
The plaintiff’s statement of itemized errors also implicates Step 3 of the sequential
evaluation process. At Step 3, a claimant bears the burden of proving that his impairment or
combination of impairments meets or equals a listing. 20 C.F.R. § 404.1520(d); Dudley v.
Secretary of Health & Human Servs., 816 F.2d 792, 793 (1st Cir. 1987). To meet a listing, the
claimant’s impairment(s) must satisfy all criteria of that listing, including required objective
medical findings. 20 C.F.R. § 404.1525(c)(3). To equal a listing, the claimant’s impairment(s)
must be “at least equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R.
§ 404.1536(a).
A. Discussion
1. Listing 12.06
The plaintiff contends that the administrative law judge was required to find that one or
more of his mental impairments met the criteria of Listing 12.06, the Listing for anxiety-related
disorders. He specifies Listing 12.06(A)(5), Plaintiff’s Statement of Errors (“Itemized Statement”)
(ECF No. 14) at 7. That citation covers only a portion of the criteria for the Listing. The plaintiff
invokes a subsection of part A of the Listing that requires “[m]edically documented findings of . .
. [r]ecurrent and intrusive recollections of a traumatic experience, which are a source of marked
distress[.]” To meet the Listing, a claimant must also show the following:
B.
1.
2.
3.
4.
Resulting in at least two of the following:
Marked restriction of activities of daily living; or
Marked difficulties in maintaining social functioning; or
Marked difficulties in maintaining concentration, persistence, or pace; or
Repeated episodes of decompensation, each of extended duration.
OR
C. Resulting in complete inability to function independently outside the area
of one’s home.
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Listing 12.06(B)-(C). The plaintiff relies on subsections (B)(1)-(3). Itemized Statement at 8-9.
The administrative law judge found that the plaintiff had only mild restriction in activities
of daily living, moderate difficulties in social functioning, and moderate difficulties in maintaining
concentration, persistence, or pace. Record at 25-26. The plaintiff relies on the records of
Benjamin Grasso, M.D., his treating psychiatrist. Itemized Statement at 8. As the defendant points
out, Defendant’s Opposition to Plaintiff’s Statement of Errors and Motion to Admit New Evidence
(“Opposition”) (ECF No. 17) at 5, the administrative law judge’s conclusion is supported by the
report of a state-agency psychiatrist, H. Thomas Unger, M.D., who concluded, after reviewing the
plaintiff’s medical records, including those of Dr. Grasso, that the plaintiff’s impairments did not
meet Listing 12.06.6 Record at 386, 397. Dr. Unger found mild restrictions of activities of daily
living, moderate difficulties in social functioning, and mild difficulties in maintaining
concentration, persistence, or pace. Id. at 397.
None of the pages of Dr. Grasso’s records cited by the plaintiff describe his mental
condition with respect to any of the B criteria other than concentration, which he routinely found
to be within normal limits or only mildly impaired. E.g., id. at 307, 314, 374, 410. The lack of
support in the record for the existence of marked difficulties in this area is sufficient to defeat the
plaintiff’s appeal on this point. In addition, were the court to determine that the administrative law
judge should have found marked restrictions in activities of daily living and marked difficulties in
The plaintiff contends that the administrative law judge was required to give “no weight” to Dr. Unger’s opinions
because Dr. Unger “does not believe that the Plaintiff has any symptoms due to his PTSD.” Itemized Statement at 10.
This is a mischaracterization of Dr. Unger’s report, in which he found the existence of an affective disorder and PTSD,
Record at 387, 392, without differentiating the source of the functional limitations that he found to exist as a result.
Id. at 397, 401-03. The plaintiff also attacks Dr. Unger’s opinions as “internally conflicting,” Itemized Statement at
11, but they are not. An individual could “have difficulty” of some degree in interacting with coworkers and
supervisors but nonetheless be able to function in a work environment. There are degrees of difficulty, and, contrary
to the plaintiff’s assumption, the word “difficulty” does not automatically translate to “marked difficulties” in social
functioning. The plaintiff proffers no authority to the contrary.
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maintaining social functioning based on the pages of Dr. Unger’s records cited by the plaintiff, it
would have to engage in lay interpretation of raw medical evidence, which is uniformly forbidden
by Social Security caselaw. See, e.g., Brown v. Colvin, No. 2:13-cv-473-JHR, 2015 WL 58396,
at *2 (D. Me. Jan. 5, 2015).
I note also that Dr. Kirsten Milliken-Zumel, an examining psychologist not retained by the
defendant, Record at 433, found that the plaintiff’s occupation and social impairment was “due to
mild or transient symptoms which decrease work efficiency and ability to perform occupational
tasks only during periods of significant stress, or; [sic] symptoms controlled by medication.” Id.
at 436. Social Security law does not permit a claimant to choose the acceptable medical source to
whose records the administrative law judge’s review will be limited. The administrative law
judge’s treatment of the B criteria in Listing 12.06 was supported by substantial evidence.
The plaintiff is not entitled to remand on the basis of his Step 3 issue.
2. Credibility
The plaintiff next challenges the administrative law judge’s evaluation of his credibility,
asserting that his testimony and that of his wife are consistent with the finds and opinions of Dr.
Milliken-Zumel and Grasso.
Itemized Statement at 11-13.
The administrative law judge
acknowledged that the report of the plaintiff’s wife was “to similar effect as the claimant’s October
2011 statement.” Record at 28. The administrative law judge said the following about the
plaintiff’s credibility:
The extreme nature of the claimant’s allegations weighs against his
credibility. He alleges that he does nothing during the day except sit and
watch television and care to his personal needs. The undersigned finds
this to be so extreme as to be unreliable. It is even more unreliable since
he is able to keep appointments with no apparent difficulty and to present
himself well at appointments. Those treating his physical complaints
made no comments regarding any apparent psychological difficulty and
those treating his psychological complaints made no comments regarding
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any apparent physical difficulties. Medical practitioners generally report
that he had good hygiene and dressed appropriately. Moreover, the
claimant’s allegations of extremely severe symptoms and functional
limitations are entirely inconsistent with treatment notes, which reveal no
significant difficulty interacting with the practitioners, remembering,
understanding, or concentrating. Behavioral oddities are not reported.
Further, the claimant’s failure to seek a second opinion after years of
increasing symptoms weighs heavily against his credibility. He has
treated with the same psychiatrist since 2007. In addition, as discussed
earlier, the claimant’s allegations regarding his physical impairments were
not credible. Treatment notes indicate that his allegations of immobilizing
pain with walking were not taken seriously. He was merely advised to get
more exercise despite the alleged pain, which he failed to do. Lastly, an
examining psychologist found that he was not a reliable informant in
February 2012 as well be discussed in more detail below (Exhibit C7F).
Based on the foregoing, the undersigned finds that the claimant is an
unreliable informant. Thus, his allegations and any assessment or opinion
based on his allegations will not be credited unless accompanied by strong
corroborating evidence. The record does not contain such evidence.
Id. at 28-29. This lengthy discussion of the plaintiff’s credibility is followed by a discussion of
the evidence underlying Dr. Grasso’s opinions that highlights inconsistencies in his observations,
in the plaintiff’s subjective reports, and between the opinions of Dr. Grasso and Dr. MillikenZumel. Id. at 29-31.
This is a more than sufficient basis for the administrative law judge’s evaluation of the
plaintiff’s credibility.
3. Weight Given to Dr. Grasso’s Opinions
The next error which the plaintiff contends entitles him to remand is the administrative law
judge’s failure to give “controlling or greatest weight” to Dr. Grasso’s opinions. Itemized
Statement at 13. The only opinion that he identifies is Dr. Grasso’s opinion that the plaintiff “is
incapable of working in any capacity because of the long-standing consequences of chronic
depression and generalized anxiety.” Id. at 14.
8
Two problems with this challenge are immediately apparent, although unacknowledged by
the plaintiff. First, the identified opinion is on an issue reserved to the commissioner, and, as such,
can never be given either controlling or greatest weight. E.g., Kenney v. Colvin, No. 2:13-cv-296GZS, 2014 WL 3548986, at *7 (D. Me. July 17, 2014). Second, controlling weight is only
available to the opinion of a treating source when it is “not inconsistent with the other substantial
evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2). As discussed above, Dr. Grasso’s
opinion on the ultimate issue is not consistent with that of Dr. Unger or that of Dr. Milliken-Zumel.
When Dr. Grasso’s opinion is weighed against other medical opinions in the record, the
administrative law judge’s decision to give it less weight than she did to the conflicting opinions
is not error, let alone reversible error.
4. Dr. Unger’s Opinion re Social Functioning
Finally, the plaintiff complains that the administrative law judges’ RFC “fails to account
for . . . [Dr.] Unger[’s] opinion that, and explanation for why, the Plaintiff is moderately limited
in social functioning.” Itemized Statement at 16-17. He contends that “Dr. Unger’s RFC
opinion does not support the ALJ’s RFC with respect to social interaction with coworkers and
supervisors.” Id. at 17. Because this issue addresses only one of the B criteria under Listing
12.06, when meeting at least two of the criteria is required in order to meet the Listing, this
error, if such it is, can only be harmless.
In fact, however, there is no error. As I noted previously, the fact that Dr. Unger stated
that the plaintiff “would have difficulty interacting with the general public, supervisors and
coworkers, but could function in a work environment where he had minimal contact with the
general public” is not “internally inconsistent,” Record at 403, as the degree of difficulty is not
specified, and Dr. Unger earlier noted the presence of moderate difficulties in responding
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appropriately to criticism from supervisors and the ability to get along with coworkers, id. at
402. Contrary to the plaintiff’s assumption, Itemized Statement at 17, the administrative law
judge’s finding that the plaintiff could “interact appropriately with . . . coworkers and
supervisors,” id. at 27, is not necessarily inconsistent with the finding that the plaintiff suffered
from severe mental impairments.
An impairment is severe when it would have more than a minimal effect on an individual’s
ability to work. McDonald v. Secretary of Health & Human Servs., 795 F.2d 1118, 1124 (1st
Cir. 1986). A finding that a mental impairment is severe is compatible with findings that one
or more of the B criteria is mildly or moderately affected. See, e.g., Tilton v. Colvin, No. 2:13cv-96-GZS, 2014 WL 294477, at *2 (D. Me. Jan. 27, 2014) (mild limitations in activities of
daily living and moderate limitations in social functioning consistent with severe mental
impairment); Cyr v. Astrue, No. 1:11-cv-433-GZS, 2012 WL 3095437, at *4 (D. Me. July 10,
2012) (same). Moderate difficulties in social functioning, and specifically in the ability to
respond appropriately to supervisors and to get along with coworkers are not necessarily
inconsistent with a finding that a claimant is able to interact appropriately with coworkers and
supervisors. Bard v. Astrue, No. 1:12-cv-22-NT, 2012 WL 5258197, at *4 (D. Me. Sept. 28,
2012).
III.
Conclusion
For the foregoing reasons, the motion to add new evidence to the record is DENIED, and
the commissioner’s decision is AFFIRMED.
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Dated this 22nd day of April, 2015.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
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