PARENT v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
Filing
17
MEMORANDUM DECISION re: 8 SS Statement of Errors/Fact Sheet. By MAGISTRATE JUDGE JOHN H. RICH III. (ccs)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JASON PAUL PARENT,
Plaintiff
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant
)
)
)
)
)
)
)
)
)
)
No. 2:15-cv-415-JHR
MEMORANDUM DECISION1
This Supplemental Security Income (“SSI”) appeal raises the questions of whether the
administrative law judge based his decision on erroneous medical testimony and whether he
incorrectly evaluated the opinion of an evaluating medical source. I affirm the commissioner’s
decision.
In accordance with the commissioner’s sequential evaluation process, 20 C.F.R. § 416.920;
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 suffered from anxiety-related
disorder/anxiety disorder NOS (not otherwise specified), and personality disorder/personality
disorder NOS, 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.
1
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 June
17, 2016, 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. The parties have consented to have me conduct all proceedings in this matter, including the entry of judgment.
ECF No. 14.
1
Part 404, Subpart P (the “Listings”), Findings 2-3, Record at 17-18; that he had the residual
functional capacity (“RFC”) to perform a full range of work at all exertional levels, except that he
could understand, remember, and carry out semi-complex instructions, use judgment in making
semi-complex work-related decisions, interact occasionally and appropriately with coworkers,
supervisors, and usual work settings not involving the public, and adapt to occasional changes in
the ordinary work setting, Finding 4, id. at 20; that he had no past relevant work, Finding 5, id. at
24; that, considering his age (29 years old on the date his application was filed, November 17,
2011), education (at least high school), and RFC, there were jobs existing in significant numbers
in the national economy that he could perform, Findings 6-9, id.; and that he, therefore, had not
been disabled, as that term is defined in the Social Security Act, from November 17, 2011, through
the date of the decision, February 26, 2014, Finding 10, id. at 25. The Appeals Council declined
to review the decision, id. at 1-4, making the decision the final determination of the commissioner,
20 C.F.R. § 416.1481; 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. § 1383(c)(3); 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. § 416.920(g); Bowen v. Yuckert, 482 U.S. 137, 146
2
n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support
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).
I. Discussion
The plaintiff contends that the administrative law judge impermissibly relied upon the
testimony at the hearing of a medical expert, James Claiborn, Ph.D., because that testimony was
“erroneous and contrary to Social Security policy” and resulted from prompting by the
administrative law judge. Itemized Statement of Errors Pursuant to Local Rule 16.3 Submitted by
Plaintiff (“Itemized Statement”) (ECF No. 8) at 3-4. He asserts that the administrative law judge’s
reading to Dr. Claiborn his testimony “from another, unidentified hearing[] clearly indicat[es] that
the ALJ had prejudged the issue and was coaching the ME.” Id. at 3.
The following testimony by Dr. Claiborn, in response to questioning by the administrative
law judge, is at issue:
Q
Do you believe [the plaintiff] has the ability on a sustained competitive basis
to understand, remember, and carry out semi-complex instructions?
A
I believe so, yes.
Q
Use judgment and make semi-complex work related decision?
A
Yes.
Q
Respond appropriately to co-workers, supervisors and usual work situations
not involving the public?
A
I think he’s prone to being a difficult person to interact with so that he’s
going to have trouble with authority figures particularly. He’s not going to respond
well to being told what to do. And if we get into an issue where is this something
that he’s capable of doing or prone to do even though it’s responsibility, it’s about
ability. I think he would have trouble but would manage limited interactions with
supervisors and/or co-workers.
***
Q
What do you say about [consultative examiner] Dr. Quinn’s in the—when
you turn to the medical source statement, issues with persistence and pace. He may
have issues with persistence and pace. And then further the GA[F] score of 50 to
55.
3
A
Well, what I do think, I think that Dr. Quinn is trying to talk about here is
that we’ve got an individual who, as I indicated also, has problems dealing with
authority figures. And, yeah, I think this is an issue of where it’s a matter of he
finds it uncomfortable so he chooses not to. And similarly, in talking about, you
know, he didn’t want to go out because he’s going to be anxious. And as he
described it, you know, the more he stays home the harder it is. So I think, you
know, Dr. Quinn in some instance is identifying that he’s likely to follow like a
pattern, not particularly persistent in things if he thinks they’re go[i]ng to be
uncomfortable.
Q
Okay.
A
I think that applies to what Dr. Quinn says about reliability.
Q
Elsewhere you testified that you think, we think of behaviors of voluntary
choices. People make choices to do things that we consider inappropriate, but have
the capacity to control or maintain their behavior an[d] act appropriately if we
choose to. Do you remember that?
A
I do.
Q
In this particular case do you think that capability exists?
A
I[] think it does. I think, again, it’s a matter of he’s uncomfortable with some
situations and prefers to avoid them.
Record at 56-58.
Later, Dr. Claiborn responded to questions from the plaintiff’s attorney as follows:
Q
. . .[H]e avoids situations because he finds them uncomfortable. Isn’t that
part of his condition, the personality disorder and the anxiety? Not something that
he can flick a switch and control so that that doesn’t happen?
A
Well[,] I don’t think he can flip a switch, and I think it does bother him and
I think it’s part of the conditions, yes. But I also think his own testimony today he
kind of indicates a very important point which is to say the more he avoids things
the more he’s convinced he has to avoid things. It doesn’t mean that it is something
that he has to do or is not capable of acting differently.
Q
. . . [W]ouldn’t you agree with Dr. Quinn’s evaluation from the point of
view of Dr. Quinn writing it would support not being able to work a full-time job
on a steady basis, including dealing with supervisors?
A
Well[,] what I understand Dr. Quinn to say is he may have trouble with
those areas. I agree, he may have trouble with those areas.
Q
I mean isn’t a personality disorder defined as basically [i]ngrained in
maladaptive behavior that the person really doesn’t have the ability to change?
A
No, it’s not defined in terms of doesn’t have the ability, it’s described that
in the main pattern, yes.
Q
. . . I’m just looking at [Listing] 12.08, a personality disorder exists when
personality traits are inflexible and maladaptive and cause either significant
impairment in social or occupational function and subjective distress. And they
describe the required level of severity in terms of deeply ingrained, maladaptive
patterns of behavior associated with the following characteristics. I mean if they’re
4
inflexible and maladaptive doesn’t that suggest that it’s not something within the
person’s power just to go out and change and work differently?
A
All the diagnoses in DSM really, and by adoption in the Social Security
standards essentially are descriptive rather than explanatory. That is to say a person
with a personality disorder would be expected to have this ingrained or persistent
pattern, trait[-]like pattern of maladaptive behavior and so forth. Nowhere is it
included in my understanding of these diagnoses that that means the person is
incapable necessarily of acting in a different way.
***
What I’m talking about is my understanding of personality disorders,
among other things, is that the people have these kinds of patterns of behavior. But
as in the statement that [Administrative Law] Judge Melanson read from testimony
from another hearing, I think that we have to understand people’s behavior in terms
of it[]s being effectively operant choice and largely determined by consequences.
And that if the individual does not have a behavior in their repertoire, that’s a
different consideration from having a behavior in the repertoire but choosing not to
use it.
Record at 59-61.
The administrative law judge’s opinion includes the statement that he “concur[s] with
hearing testimony from Dr. Claiborn[,]” which he recited in some detail. Id. at 22-24.
To the extent that the plaintiff relies on his allegation of bias as a basis for remand, he has
failed to meet the applicable standard. Social Security law includes a presumption that an
administrative law judge is unbiased, which requires a demonstration that the administrative law
judge whose impartiality is challenged “displayed deep-seated and unequivocal antagonism that
would render fair judgment impossible.” Clarke v. Colvin, No. 2:13-cv-377-GZS, 2015 WL
1206495, at *16 (D. Me. Mar. 17, 2015) (quoting Strout v. Astrue, Civil No. 08-181-B-W, 2009
WL 214576, at *5 (D. Me. Jan. 28, 2009)). Actual bias must be shown, not just the appearance of
impropriety. Strout, 2009 WL 214576 at *7. The presumption of impartiality can be overcome
only by convincing evidence that a risk of actual bias or prejudgment is present; a finding of
prejudice cannot be based on inference. Bickford v. Barnhart, No. 05-236-P-S, 2006 WL 2822391,
at *5 (D. Me. Sept. 29, 2006). The plaintiff’s submission does not meet this standard.
5
The plaintiff cites no authority to support his suggestion that an administrative law judge
may not question a medical expert based on his earlier testimony in a different proceeding, and my
research has located none.
The plaintiff’s primary argument, again without citation to authority, is that Dr. Claiborn’s
testimony must be rejected because it is “flatly inconsistent with and in opposition to Listing
12.08[.]” Itemized Statement at 3.
The Listings are designed to determine whether a claimant is disabled from all work by the
impairment at issue. There is no suggestion in this case that the plaintiff met the requirements of
Listing 12.08, which describes personality disorders of sufficient severity to render an applicant
disabled. It is not correct to characterize Listing 12.08 as establishing “Social Security policy” for
all diagnoses of personality disorders. Id. at 4. Rather, the Listing defines the point at which a
diagnosed personality disorder becomes sufficiently severe to render an applicant for benefits
disabled for the purpose of entitlement to benefits. This is a significantly more limited purpose
than that which the plaintiff attempts to assign to the Listing.
In addition, this court has previously rejected a similar argument about Dr. Claiborn’s
testimony. In Burns v. Social Sec. Admin. Comm’r, No. 1:10-CV-00124-JAW, 2011 WL 1364068
(D. Me. Apr. 8, 2011), Dr. Claiborn testified, inter alia, with regard to a plaintiff who had been
diagnosed with a personality disorder:
[I]f we think of behaviors as voluntary choices, people may make choices to do
things that we consider inappropriate but have the capacity to control or maintain
their behavior and act in an appropriate way if they choose to. And it is my opinion
that in [the plaintiff’s] particular case that that capability exists and has not been
exercised.
Id. at *4. This testimony followed Dr. Claiborn’s expressed opinion that the plaintiff was an
individual with sufficient skill to get what he regarded as important, although he also demonstrated
6
a consistent disregard for the rights of others, which supported the diagnosis of a personality
disorder. Id. at 3.
The Burns plaintiff argued to this court that Dr. Claiborn’s testimony could not be
reconciled with Social Security’s regulatory approach to personality disorders, the Listing for
which “describes a history of altercations as material to one’s capacity to ‘interact appropriately,
effectively, and on a sustained basis’ with others. Id. at *5. The administrative law judge adopted
Dr. Claiborn’s assessment of the plaintiff’s social capacity over that of the plaintiff’s treating nurse
practitioner. Id. Nothing in the plaintiff’s presentation in this case requires a different result.2
To the extent that the plaintiff means to contend that a diagnosis of personality disorder
means that the manifestations of that disorder “are by definition inflexible and maladaptive,”
Itemized Statement at 3, to the extent that they cannot be controlled or overcome by the individual,
he appears to be arguing that the diagnosis of personality disorder is sufficient to require an
administrative law judge to award benefits. That argument is contrary to established Social
Security law. See, e.g., Sitar v. Schweiker, 671 F.2d 19, 20-21 (1st Cir. 1982); Thomas v.
Commissioner of Soc. Sec., Civil Action No. 14-13819-JGD, 2016 WL 1170965, at *9 (D. Mass.
Mar. 24, 2016) (diagnosis of personality disorder not sufficient to establish eligibility for benefits).
These conclusions make it unnecessary to address the plaintiff’s brief derivative argument
that, because the administrative law judge’s reliance on Dr. Claiborn’s testimony was erroneous,
so was his evaluation of the opinion of Edward Quinn, Ph.D., a consultant who examined the
plaintiff. Itemized Statement at 4.
After oral argument, with the court’s permission, the plaintiff’s counsel submitted a letter brief, to which the
defendant’s counsel elected not to respond, setting forth his contention that Burns should be distinguished from the
instant case. Letter dated June 20, 2016, from Daniel Emery, Esq., to Hon. John H. Rich III (ECF No. 16). The letter
brief distinguishes Burns because it “primarily dealt with whether Dr. Claiborn’s testimony was inconsistent with
plaintiff’s overall history and the opinion of a treating practitioner, not whether it was inconsistent with the definition
of Personality Disorder.” Id. at 2. As explained above, I disagree.
2
7
II. Conclusion
For the foregoing reasons, the commissioner’s decision is AFFIRMED.
Dated this 26th day of August, 2016.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
8
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?