MALANEY v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 25

REPORT AND RECOMMENDED DECISION re 10 Social Security Statement of Errors/Fact Sheet Objections to R&R due by 6/26/2017 By MAGISTRATE JUDGE JOHN H. RICH III. (ccs)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
KIMBERLY ANN MALANEY,
Plaintiff
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
Defendant

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No. 2:16-cv-00404-GZS

REPORT AND RECOMMENDED DECISION2
This Social Security Disability (“SSD”) and Supplemental Security Income (“SSI”) appeal
raises the question of whether the administrative law judge supportably found the plaintiff capable
of performing work existing in significant numbers in the national economy. The plaintiff seeks
remand on the bases that the administrative law judge’s determination of her physical residual
functional capacity (“RFC”) is unsupported by substantial evidence; he failed to properly evaluate
the physical RFC opinions of record; his determination of her mental RFC is unsupported by
substantial evidence; he failed to properly evaluate the mental RFC opinions of record; he erred in
relying solely on the so-called “Grid,” the Medical-Vocational Guidelines contained in Appendix
2 to Subpart P, 20 C.F.R. § 404, to find her capable of performing work; and he erred in failing to

1

Nancy A. Berryhill, who is now the Acting Commissioner of Social Security, is substituted for former Acting
Commissioner Carolyn W. Colvin as the defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d).
2
This action is properly brought under 42 U.S.C. §§ 405(g) and 1383(c)(3). The commissioner has admitted that the
plaintiff has exhausted her 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 she 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 15, 2017, 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.

1

rule on her requests to reopen prior applications. See Plaintiff’s Itemized Statement of Specific
Errors (“Statement of Errors”) (ECF No. 10) at 3-20. I find no reversible error and, accordingly,
recommend that the court affirm the commissioner’s decision.
Pursuant to the commissioner’s sequential evaluation process, 20 C.F.R. §§ 404.1520,
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 met the insured status
requirements of the Social Security Act through September 30, 2007, Finding 1, Record at 23; that
she had severe impairments of affective disorders/mood disorder, anxiety-related disorder/anxiety
disorder, personality disorder, and substance addiction disorder/polysubstance abuse (current
status unclear), Finding 3, id. at 23; that she had the RFC to perform a full range of work at all
exertional levels with the following nonexertional limitations: she was limited to simple
instructions and could accomplish simple tasks on a consistent schedule to complete a workday
and workweek, could interact with co-workers and supervisors but not the general public, and
could adapt to occasional routine changes in the workplace, Finding 5, id. at 28; that, considering
her age (35 years old, defined as a younger individual, on her alleged disability onset date, July 1,
2006), education (at least high school), work experience (transferability of skills immaterial), and
RFC, there were jobs existing in significant numbers in the national economy that she could
perform, Findings 7-10, id. at 43; and that she, therefore, had not been disabled from July 1, 2006,
through the date of the decision, March 27, 2015, Finding 11, id. at 44. The Appeals Council
declined to review the decision, id. at 1-3, making the decision the final determination of the
commissioner, 20 C.F.R. §§ 404.981, 416.1481; Dupuis v. Secretary of Health & Human Servs.,
869 F.2d 622, 623 (1st Cir. 1989).

2

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), 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 her past relevant work. 20 C.F.R. §§ 404.1520(g), 416.920(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 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
A. Overview: Challenge to Physical, Mental RFC Determinations
“The ALJ’s [administrative law judge’s] findings of fact are conclusive when supported by
substantial evidence, but 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)
(citations omitted).
As counsel for the commissioner contended at oral argument, it is not the job of the court
to reweigh the evidence. See, e.g., Rodriguez, 647 F.2d at 222 (“The Secretary may (and, under
his regulations, must) take medical evidence. But the resolution of conflicts in the evidence and
the determination of the ultimate question of disability is for him, not for the doctors or for the
courts.”). The mere fact that a claimant can point to evidence of record supporting a different
conclusion does not, in itself, warrant remand. See, e.g., Irlanda Ortiz v. Secretary of Health
3

& Human Servs., 955 F.2d 765, 769-70 (1st Cir. 1991) (noting that, “[a]lthough the record arguably
could support a different conclusion,” substantial evidence supported decision that claimant’s
capacity for full range of sedentary, unskilled work was not significantly reduced).
In this case, the administrative law judge carefully summarized the hearing testimony,
“raw” medical evidence, and expert opinion evidence of record and explained why he resolved
conflicts in that evidence in the manner that he did. See Record at 29-43. For that reason, as well
as the reasons that follow, I conclude that his RFC determination survives scrutiny.
B. Physical RFC Determination
1. Asserted Lack of Substantial Evidence
The plaintiff first challenges the finding that she had no severe physical impairment,
contending that the administrative law judge erred in determining that she sustained only one
injury when she was hit by a car in 2005, a broken arm that fully resolved, and failed to account
for symptoms from migraine headaches and asthma. See Statement of Errors at 3-6. She contends
that she suffered not only a right arm fracture, which continues to be symptomatic, but also a head
injury and back pain as a result of her 2005 accident. See id. at 3-4.
a. Residuals of 2005 Accident
With respect to her alleged head injury, the plaintiff relies on an emergency department
checkbox indicating that she had a head injury, accompanied by a remark that she had an abrasion
on her right forehead, “trauma treatment” that included a CT head scan, and a later summary from
Spring Harbor Hospital (“Spring Harbor”) noting “a history of a closed-head injury with loss of
consciousness.” Id. at 3; Record at 524-25, 563.
Yet, as the commissioner notes, see Defendant’s Opposition to Plaintiff’s Statement of
Errors (“Opposition”) (ECF No. 16) at 2-3, the administrative law judge supportably found that
she “did not require admission to the hospital and there is no indication that she lost consciousness
4

or had a head injury, as alleged[,]” Record at 24-25. Contemporaneous records make clear that,
despite the plaintiff’s forehead abrasion, she had no loss of consciousness at the scene of her
November 28, 2005, accident or in the emergency department thereafter. Record at 524-25. She
identifies no abnormal finding from the CT head scan. See Statement of Errors at 3-4. The April
2006 Spring Harbor note on which she relies, noting a “history” of head injury with loss of
consciousness, see Record at 563, appears to be uncorroborated by the contemporaneous medical
evidence, and the commissioner points to evidence of normal head, neck, and back findings on
subsequent physical examinations, see, e.g., id. at 558 (normal physical examination in June 2006),
732, 760-61 (no head, neck, or back abnormalities noted in October 2006), 1180 (no head, neck,
or back abnormalities noted by agency examining consultant Renato Medrano, M.D., in December
2012).
With respect to her alleged back pain, the plaintiff points to findings on x-ray after she was
rear-ended in a car accident in February 2006 suggestive of a prior pubic ramus fracture, with some
wedging on the first lumbar vertebra and an irregular endplate appearance. See Statement of Errors
at 3; Record at 800-01. She notes that discitis or post-traumatic change were possible diagnoses,
arguing “[t]hat these injuries needed to be considered in combination with the residuals from the
earlier accident and subsequent exacerbations.” Statement of Errors at 3-4; Record at 801. Yet,
she points to no definitive diagnosis of those back impairments. See Statement of Errors at 3-4;
see also id. at 24 (administrative law judge found “no reliable diagnosis of any impairment of the
[plaintiff’s] back, neck, or left leg”). Moreover, as the commissioner notes, see Opposition at 3,
examinations of the plaintiff’s back were normal in October 2006 and March 2008, see Record at
732, 761, 849, and she denied a history of musculoskeletal disorders during examinations in 2008,
2009, 2010, 2013, and 2014, see id. at 813, 822, 878, 909, 922, 929, 947, 1099, 1387, 1411. In

5

addition, in December 2012, Dr. Medrano found no cervical, thoracic, or lumbar spine
abnormality. See id. at 1180-81.
The plaintiff concedes that her arm fracture itself essentially healed, but asserts that the
administrative law judge erred in finding no ongoing residuals, see Statement of Errors at 4,
pointing to documentation of (i) a visit to the emergency department in October 2006 for right
shoulder pain following an incident in which she fell off a step stool, resulting in a diagnosis of
shoulder sprain, see Record at 743-44, (ii) her report in May 2008 that she had right shoulder pain
at a 10/10 intensity, see id. at 842, (iii) a visit to the emergency department in December 2008 for
acute right arm pain, constant, burning, and squeezing in nature, see id. at 815, (iv) her report of
increasing right arm pain in March 2009, see id. at 959, (v) a June 2009 x-ray revealing that there
might be an underlying fracture of the bone although the hardware remained intact, see id. at 942,
and (vi) a visit to the emergency department in August 2013 when she exacerbated her right arm
pain while trying to clean a refrigerator, see id. at 1249-51.
However, as the commissioner argues, see Opposition at 4, despite these flare-ups, the
administrative law judge supportably concluded that the right arm/shoulder injury was not
significantly limiting. By August 2006, the plaintiff’s surgeon noted that her fracture was wellhealed and that she had a full range of motion with no pain on palpation. See Record at 569. She
retained full range of motion and intact sensation in October 2006. See id. at 760. She had nontender extremities with normal range of motion in March 2008, see id. at 849, and denied a history
of musculoskeletal disorder in August 2008, see id. at 822. Although she complained of right arm
pain in December 2008, see id. at 810, an x-ray was normal, see id. at 818, and she did not receive
follow-up care. She reported increasing arm pain three times in the spring of 2009, but left without
treatment each time. See id. at 955, 964, 966. Dr. Medrano observed normal extremities with full

6

strength, no muscle atrophy, and intact sensation in December 2012. See id. at 1180. The plaintiff
denied musculoskeletal problems in November 2013 and November 2014. See id. at 1387, 1411.
b. Migraine Headaches
The administrative law judge found “no reliable diagnosis of migraine headaches in the
current record.” Id. at 24. He acknowledged that the plaintiff had presented to the emergency
department in March 2004 and May 2004 with complaints of a “migraine” but pointed out that she
reportedly left abruptly when denied requested pain medication. See id. He added: “The record
describes numerous other attempts at obtaining requested drugs through the emergency room with
complaints of headaches or pain that cannot be substantiated on independent exams; and when
declined, the [plaintiff] becomes combative.” Id. (citations omitted).
The plaintiff contends, inter alia, that the claimed absence of support for headaches is
contradicted by documentation of migraines featuring photophobia in March and May 2004. See
Statement of Errors at 5. Yet, as noted above, the administrative law judge questioned the
reliability of those diagnoses based on contemporaneous notations of concern for drug-seeking
behavior. See Record at 24, 650, 656, 667. Moreover, as the commissioner suggests, see
Opposition at 5, during the relevant time period, the plaintiff denied headaches in May 2007, July
2008, and February and April 2010, see Record at 709, 827, 865, 872, 1141. When she reported
headaches in September 2011 and September 2012, she was not diagnosed with a headache
disorder. See Opposition at 5; Record at 1038-39, 1075, 1077. She denied headaches in November
2012, February 2013, and February 2014. See Opposition at 5; Record at 1109, 1265, 1411-12.
c. Asthma
The plaintiff, finally, faults the administrative law judge for failing to assess limitations
resulting from a severe asthma/shortness of breath impairment, noting that an agency

7

nonexamining consultant, Donald Trumbull, M.D., characterized asthma as her primary
impairment, and pointing to instances in which she complained of shortness of breath/anxiety in
February 2010, panic/asthma attack in April 2010, and shortness of breath in November 2012. See
Statement of Errors at 5-6. However, the administrative law judge supportably determined that
the plaintiff’s asthma was well-controlled with inhaler medication and nonsevere. See Record at
24. Dr. Trumbull found the plaintiff’s asthma nonsevere after specifically mentioning the April
2010 record on which the plaintiff partly relies, see id. at 997, and the asthma exacerbation noted
in November 2012 improved within a few weeks, see id. at 1109-10, 1212. The plaintiff points to
no subsequent evidence of uncontrolled asthma.

See Statement of Errors at 5-6.

As the

commissioner suggests, see Opposition at 5-6, the record evidence indicates otherwise. Dr.
Medrano noted no functional limitations stemming from asthma on examination in December
2012, see Record at 1181, and agency nonexamining consultants J.H. Hall, M.D., and Anthony
Pileggi, M.D., found no severe asthma impairment in January 2013 and September 2013,
respectively, see id. at 130, 166.
2. Challenge To Weighing of Opinion Evidence
The plaintiff next seeks remand on the basis that the administrative law judge improperly
rejected the physical RFC opinion of examining orthopedic surgeon Frank A. Graf, M.D., while
crediting the opinions of agency nonexamining consultant Dr. Trumbull and agency examining
consultant Dr. Medrano. See Statement of Errors at 6-11.
a. Dr. Graf
In a letter to the plaintiff’s counsel dated January 21, 2015, Dr. Graf noted that he had
examined and interviewed the plaintiff and reviewed certain medical records, diagnosing her with
(i) direct impact injuries to the occiput with occipital scalp hematoma and altered short-term
memory and intermittent visual effects, (ii) comminuted fracture proximal humerus on the right
8

status post ORIF [open reduction internal fixation] with long plate and screws applied,
(iii) intermittent numbness and tingling in both hands in a C6, C7, and C8 spinal nerve root pattern
with C6 dominant, and (iv) chronic lumbosacral pain with intermittent left lateral thigh pain. See
Record at 1434-37. He summarized:
This individual has ongoing residuals of car-pedestrian motor vehicle accident with
continued weakness and restricted ranges of motion in the right upper extremity.
She has ongoing proximal cervical component to right and left upper extremity
intermittent numbness and tingling. She has chronic lumbosacral pain without fullfledged radiculopathy in the lower extremities with diminished tendo Achilles
reflex and lateral thigh pain patterning.
The [plaintiff] was last employed gainfully in 2005 with no employment
subsequent to the motor vehicle accident. While the [plaintiff] has training as a
CNA [certified nursing assistant], her certification has lapsed and because of the
upper extremity weakness and sensory changes, she would not be able to participate
in codes or patient transfers. With her psychiatric diagnoses and her recent efforts
to be opiate free, she is not able to maintain concentration and pace to allow
employability.
The combination of the residuals of the motor vehicle accident and the [plaintiff’s]
psychiatric diagnoses render her disabled and not capable of sedentary or any other
type of employment.
Id. at 1437.
He found, inter alia, that the plaintiff could sit for only two hours in an eight-hour workday,
stand for only one hour, and walk for only one hour, could only occasionally lift or carry 11 to 20
pounds, and could use both her right and left upper extremities only occasionally. See id. at 143839.
The administrative law judge deemed the Graf opinion, as well as that of examining
psychiatrist John L. Newcomb, M.D., conclusory and contrary to the weight of the evidence as a
whole, see id. at 40, explaining:
The conclusions reached by these physicians are not supported by medically
acceptable signs, symptoms, and/or laboratory findings and appear to be based
totally on the [plaintiff’s] subjective complaints and out of proportion to the
objective evidence obtained during and for the course of treatment. There are no
9

treatment records to substantiate the severe degrees of limitation described by Dr.
Newcomb, nor is there any evidence to substantiate Dr. Graf’s statement of total
disability, or his statements concerning weakness in the right arm or nerve
dysfunction. Despite not having her own home, the [plaintiff] is independent with
self-care activities and she reports an ability to care for her grandchild and her
cousin’s child, to prepare meals, perform household chores, do laundry and cook
simple meals. Dr. Newcomb makes little reference to the [plaintiff’s] proliferative
history of drug-seeking behavior and her non-compliance with treatment. In fact,
he describes her as having participated in regular psychiatric treatment since 2006.
This could not be farther from the truth and even a cursory review of the record
illustrates this fact. Similar to the [plaintiff’s] attorney, who attempted to connect
all of the [plaintiff’s] problems to a car accident in 2005, Dr. Graf and Dr. Newcomb
state that this accident is what precipitated her psychiatric distress and led to her
problems with maintaining employment. This too is clearly contradicted by the
records. Moreover, there is nothing to suggest that she was “severely injured” in
this accident or that she ever lost consciousness. It is true that she broke her arm
and required surgery to correct it; but she was not hospitalized after the accident;
there are [no] other injuries established from this accident; she made a full recovery
from her right upper extremity surgery; and her drug abuse issues date back to her
teenage years with Methadone records going back to 1998 – all of these wellestablished facts in the record weigh against a finding that her accident is at the
cause of her alleged disability.
The undersigned has evaluated this evidence and finds that even though these
reports are from specialists, the opinions of Dr. Graf and Dr. Newcomb are
inconsistent and not supported by the medical evidence as a whole. Moreover,
these were one-time examinations performed at the request of the [plaintiff’s]
representative. Therefore, these reports are more akin to advocacy opinions and
thus are accorded little weight.
Id. at 40-41 (citations omitted).
The plaintiff argues that the administrative law judge erroneously rejected the Graf opinion
on the improper bases that (i) it constituted an “advocacy” opinion of a one-time examining
consultant, (ii) there was no evidence that she suffered a head injury in the 2005 accident, and
(iii) Dr. Graf failed to provide a basis for his finding of ongoing residuals of that accident. See
Statement of Errors at 7-8.
The commissioner counters that the administrative law judge properly considered the fact
that Dr. Graf examined the plaintiff on only one occasion and that, because he gave other well-

10

supported reasons for discounting the Graf opinion, his description of the opinion as an advocacy
opinion was at most harmless error. See Opposition at 9. I agree.
The fact that Dr. Graf performed a one-time examination was permissibly taken into
consideration. See 20 C.F.R. §§ 404.1527(c)(2)(i) & (ii), 416.927(c)(2)(i) & (ii) (directing
administrative law judge to consider the length, nature, and extent of the relationship between
doctor and claimant).
The administrative law judge’s reliance on the lack of evidence that the plaintiff had
suffered a head injury in her 2005 accident was also not misplaced. For the reasons discussed
above, he supportably concluded that there was no such evidence. He explained that Dr. Graf’s
finding of ongoing residuals of the accident was unsupported even by Dr. Graf’s own findings on
examination, which were largely unremarkable. See Record at 39. The plaintiff does not elaborate
on why, in her view, that conclusion was wrong. See Statement of Errors at 8.
Beyond this, as the commissioner notes, see Opposition at 9, the administrative law judge
provided other reasons for rejecting the Graf opinion that the plaintiff does not challenge; for
example, that no treatment records substantiated his statement of total disability and that his
findings were at odds with the plaintiff’s activities of daily living. See Record at 40-41; Statement
of Errors at 7-8.
In these circumstances, as the commissioner argues, see Opposition at 9, any error in
rejecting the opinion in part on the basis that it was an “advocacy opinion” is harmless, see, e.g.,
Waddell v. Colvin, No. 2:14-cv-105-JHR, 2015 WL 1723682, at *6-*7 (D. Me. Apr. 14, 2015)
(rejection of one-time examining physician’s opinion in part on the basis that it constituted an
“advocacy opinion” did not warrant remand when administrative law judge provided other
supportable reasons for rejecting the opinion).

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b. Drs. Trumbull and Medrano
The plaintiff next takes issue with the administrative law judge’s decision to give “great
evidentiary weight” to the RFC assessments of Drs. Trumbull and Medrano. See Statement of
Errors at 8-11; Record at 42. She notes that, in setting forth his overall conclusion that she had no
severe physical impairment, Dr. Trumbull boldfaced and underlined, “Attitude at 3/5/09 Mercy
visit and [history of] drug abuse severely erodes credibility[,]” and in summarizing that treatment
note, he boldfaced and underlined, “Pt told she wouldn’t be rec’ing valium for chronic shoulder
pain. Pt responds: ‘they always do.’ Left w/out signing paperwork.” Statement of Errors at 9;
Record at 995, 997 (emphasis omitted).
The plaintiff argues that “[i]t is apparent [Dr. Trumbull] took offense with [her] ‘attitude’
toward other medical professionals, rather than looking at the actual record as a whole, which
certainly does not support an assessment of no physical limitations whatsoever.” Statement of
Errors at 9.
The plaintiff further contends that Dr. Trumbull failed to consider evidence that she could
abstain from the use of Valium, namely, a June 2009 emergency department notation that she had
taken a leftover Valium prescribed eight months earlier for arm pain caused when she braced
herself from a fall. See id. She adds that, in summarizing a June 16, 2009, x-ray finding, Dr.
Trumbull boldfaced and underlined the radiologist’s finding of intact hardware and anatomic
alignment but not his finding that there was a visible fracture margin and there might be an
underlying fracture of the bone. See id. at 10. She asserts that the radiologist himself indicated
that this finding would not rule out serious pain caused by an underlying fracture. See id.
Finally, the plaintiff contends that the administrative law judge’s heavy reliance on the
Medrano opinion likewise was misplaced because he (i) overlooked the fact that Dr. Medrano

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reviewed no records, rendering an opinion “essentially in a vacuum[,]” and (ii) mischaracterized
the Medrano opinion as consistent with the rest of the record based on his faulty RFC finding. See
id. at 10-11.
As the commissioner rejoins, see Opposition at 10, even if Dr. Trumbull erred in citing the
plaintiff’s drug-seeking behavior, he also noted a lack of objective support for any functional
limitations, see, e.g., Record at 995, 997.3 This was a proper reason to accord weight to the
Trumbull opinion. See, e.g., Flood v. Colvin, No. 15-2030, 2016 WL 6500641, at *1 (1st Cir. Oct.
20, 2016) (even if administrative law judge erred in considering claimant’s drug-seeking behavior,
any error was harmless because other findings supported credibility determination, including
inconsistency of claimant’s allegations with objective medical findings).

Further, the

administrative law judge deemed the Trumbull opinion consistent with other record evidence,
including the later opinions of agency nonexamining consultants Drs. Hall and Pileggi. As the
commissioner notes, see Opposition at 10, the plaintiff does not contest the administrative law
judge’s decision to accord great weight to those two opinions, see Statement of Errors at 6-11.
The administrative law judge also permissibly accorded great weight to the Medrano
opinion. While Dr. Medrano reviewed no records, he personally examined the plaintiff. See
Record at 1180-81. The administrative law judge supportably deemed the Medrano opinion
consistent with other evidence of record, including the Hall and Pileggi opinions. For the reasons
discussed above, in crafting his RFC determination, the administrative law judge did not err in
rejecting the plaintiff’s claims of functional limitations resulting from residuals of the 2005
accident, migraine headaches, and asthma.

3

To the extent that the plaintiff means to suggest that Dr. Trumbull (and the administrative law judge) ignored a
portion of the June 16, 2009, radiologist’s report providing objective evidence of functional limitations, I disagree.
The radiologist made no definitive finding of a fracture, see Record at 942, and the plaintiff points to no evidence that
such a definitive finding was ever made.

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C. Mental RFC Finding
1. Asserted Lack of Substantial Evidence
The plaintiff next contends that the administrative law judge’s mental RFC finding is
unsupported by substantial evidence in that (i) the record is replete with evidence of her serious
mental problems, which she asserts have worsened considerably, and (ii) the administrative law
judge based the determination on mistaken findings, including the finding that she has at all times
denied being suicidal or attempting suicide. See Statement of Errors at 11-14.
With respect to the first point, in her statement and errors and through counsel at oral
argument, the plaintiff cited a number of abnormal findings by treating and examining sources, for
example, of pressured speech, moderately impaired concentration, agitation, tearfulness, and
Global Assessment of Functioning (“GAF”) scores in the 40s and 50s.4 See id. Yet, as the
commissioner’s counsel countered at oral argument, this amounts to an invitation to the court to
reweigh the evidence.
As the commissioner observes, see Opposition at 12, the administrative law judge gave
great weight to the mental RFC opinions of agency nonexamining consultants Lewis F. Lester,

4

A GAF score represents “the clinician’s judgment of the individual’s overall level of functioning.” American
Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed., text rev. 2000) (“DSM-IVTR”). The GAF score is taken from the GAF scale, which “is to be rated with respect only to psychological, social,
and occupational functioning.” Id. The GAF scale ranges from 100 (superior functioning) to 1 (persistent danger of
severely hurting self or others, persistent inability to maintain minimal personal hygiene, or serious suicidal act with
clear expectation of death). Id. at 34. A GAF score of 51 to 60 represents “[m]oderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning
(e.g., few friends, conflict with peers or co-workers).” Id. (boldface omitted). A GAF score of 41 to 50 represents
“[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious
impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” Id. (boldface
omitted). In 2013, the DSM-IV-TR was superseded by the American Psychiatric Ass’n, Diagnostic and Statistical
Manual of Mental Disorders (5th ed. 2013) (“DSM-V”), which jettisoned the use of GAF scores. See DSM-V at 16
(“It was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of
clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in
routine practice.”).

14

Ph.D., and David R. Houston, Ph.D., who reviewed much of the underlying evidence on which the
plaintiff relies, see Record at 130-32, 166-68, and she does not separately challenge his decision
to accord those opinions great weight, see Statement of Errors at 14-18. Moreover, in summarizing
the plaintiff’s longitudinal history of substance abuse/mental health treatment, the administrative
law judge acknowledged the existence of abnormal findings but emphasized the existence of a
number of normal ones, reasonably inferring that, overall, treating and examining sources’ findings
on examination were indicative of a higher level functioning than alleged. See Record at 31-40.
With respect to the second point, the plaintiff notes that, on several occasions, treating
providers indicated that she had suicidal thoughts/ideation. See Statement of Errors at 11-12;
Record at 564 (April 2006), 623 (April 2006), 627 (April 2006), 1378-80 (May 2013).
However, as the commissioner argues, see Opposition at 11 n.2., the plaintiff demonstrates
no harmful error in the administrative law judge’s finding that, despite her testimony at hearing
that she had repeatedly been suicidal, she had “at all times denied being suicidal or ever attempting
suicide[,]” Record at 43 (emphasis in original). The observation was one of several bases on which
the administrative law judge found the plaintiff’s statements not entirely credible, see id. at 42-43,
a finding that she has not separately challenged, see generally Statement of Errors. Moreover, as
the commissioner notes, see Opposition at 11 n.2, treatment records indicate that the plaintiff
repeatedly denied suicidality throughout the relevant period, see, e.g., Record at 558, 608, 725,
845, 866, 869, 1026, 1400.
2. Challenge to Weighing of Opinion Evidence
The plaintiff next challenges the administrative law judge’s evaluations of the opinions of
examining psychiatrist Dr. Newcomb, agency nonexamining consultant Peter G. Allen, Ph.D., and

15

agency examining consultant Christopher Muncie, Psy.D. See Statement of Errors at 14-18. I find
no reversible error.
a. Dr. Newcomb
Dr. Newcomb opined in January 2015 that the plaintiff had marked limitations in her
activities of daily living, social functioning, and concentration, persistence, or pace, was unable to
meet competitive standards in almost every area of unskilled work due to a depressed mood, was
unable to meet competitive standards for semi-skilled and skilled work due to severe memory
impairment, and was unable to meet competitive standards in other specific vocational areas due
to poor concentration, intrusive thoughts, and a disheveled appearance. See Record at 1413, 1423,
1431-32.
As noted above, the administrative law judge gave little weight to that opinion because
(i) it was not supported by medically acceptable signs, symptoms, or laboratory findings and
appeared to be based totally on the plaintiff’s subjective complaints, (ii) it was inconsistent with
the objective evidence of record, (iii) treatment notes did not substantiate the severe degrees of
limitation Dr. Newcomb described, (iv) Dr. Newcomb’s statement that the plaintiff had had regular
psychiatric treatment since 2006 was inconsistent with the record, and (v) Dr. Newcomb’s
statement that the plaintiff’s 2005 accident precipitated her psychiatric distress was inconsistent
with the record. See id. at 40-41.
The plaintiff challenges that determination on the bases that he erred in characterizing the
Newcomb opinion as (i) a presumptively biased “advocacy opinion[,]” (ii) “based totally on [her]
subjective complaints and out of proportion to the objective evidence[,]” and (iii) inconsistent with
evidence that she did not sustain a head injury in her 2005 accident. Statement of Errors at 16
(quoting Record at 40-41).

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As in the case of the administrative law judge’s handling of the Graf opinion, any error in
characterizing the Newcomb opinion as an “advocacy opinion” is harmless. The administrative
law judge supplied several reasons for assigning little weight to the Newcomb opinion, some of
which the plaintiff does not challenge. See, e.g., Waddell, 2015 WL 1723682, at *6-*7 (rejection
of one-time examining physician’s opinion in part on the basis that it constituted an “advocacy
opinion” did not warrant remand when administrative law judge provided other supportable
reasons for its rejection).
As the commissioner suggests, see Opposition at 15-16, any error in characterizing the
Newcomb opinion as based completely on the plaintiff’s subjective complaints is harmless. While
Dr. Newcomb did cite psychiatric signs such as tearfulness, difficulty maintaining attention,
psychomotor agitation, and rambling speech, see Record at 1428-29, the administrative law judge
supportably deemed his opinion inconsistent with the objective evidence overall, which, as
discussed above, contained a number of normal findings on mental status examination. In addition,
the plaintiff does not challenge the administrative law judge’s findings that treatment notes did not
substantiate the severe limitations Dr. Newcomb described or that Dr. Newcomb’s statement that
she received regular psychiatric treatment is inconsistent with the record. See Statement of Errors
at 14-16.
Finally, for the reasons discussed above, the administrative law judge did not err in
rejecting Dr. Newcomb’s conclusion that the plaintiff’s psychiatric distress was precipitated by
injuries sustained in her 2005 accident as inconsistent with the evidence of record.
b. Dr. Allen
In May 2010, Dr. Allen found that the plaintiff’s mental impairments, including drug and
alcohol abuse, met the criteria of Listing 12.09, Appendix 1 to Subpart P, 20 C.F.R. § 404 (the

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“Listings”), but that without substance abuse, her mental impairments were nonsevere. See Record
at 976-88. The administrative law judge explained that the Allen opinion was “not accorded great
weight” because it was unsupported by later-adduced evidence. Id. at 42. He added that “there is
no reliable period of sobriety in which to assess the [plaintiff’s] me[nt]al functioning outside of
her extensive and questionably ongoing abuse of illicit and prescription drugs.” Id. (emphasis in
original).
The plaintiff correctly notes that, if the administrative law judge had accepted the Allen
opinion, he would have been required to follow a bifurcated approach and determine whether any
continuing drug abuse was material to the plaintiff’s disability. Statement of Errors at 17; 20
C.F.R. §§ 404.1535(a), 416.935(a). She complains that (i) he “sidestepped” this analysis by giving
the opinion something less than great weight, (ii) his vague reference to the opinion as unsupported
by later-adduced evidence was “insufficient[,]” and, (iii) to the extent that he relied on the lack of
a reliable period of sobriety, his reasoning was illogical because that would not have obviated the
need to recognize that a claimant is disabled before factoring out the effects of drug and alcohol
abuse. Statement of Errors at 17-18.
Nonetheless, as the commissioner rejoins, see Opposition at 17-18, the administrative law
judge properly found the Allen opinion inconsistent with later-submitted evidence, including the
2013 opinions of Drs. Lester and Houston. I find no fault in his resolution of this evidentiary
conflict.
c. Dr. Muncie
In May 2010, Dr. Muncie examined the plaintiff, concluding that “it would appear that
ongoing legal as well as substance abuse issues would negatively impact her ability to maintain
employment” and that “underlying personality traits may interfere with her ability to modulate and

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regulate her emotions adaptively.” Record at 973. He concluded: “Consequently, mood variability
may interfere with her overall ability to persist on tasks as well as with her overall motivation.”
Id. He diagnosed substance dependence disorder and borderline personality disorder and assessed
a GAF score of 70. See id.5
The administrative law judge summarized the Muncie findings but did not explain the
weight, if any, given to them. See id. at 32-33, 40-42. The plaintiff argues that it is apparent that
he failed to properly consider the Muncie evidence, including the effect of personality traits and
mood variability. See Statement of Errors at 18. As the commissioner rejoins, see Opposition at
18-19, any error in failing to articulate the weight given the Muncie opinion is harmless because
the administrative law judge relied on the opinions of Drs. Lester and Houston, both of whom had
considered the Muncie opinion and opined that the plaintiff could still perform unskilled work
despite her impairments, see, e.g., Enman v. Colvin, Civil No. 2:13-cv-307-DBH, 2014 WL
5394577, at *4-*5 (D. Me. Oct. 21, 2014) (claimant not entitled to remand when administrative
law judge relied on opinions of agency nonexamining consultants who considered the evidence
the claimant contended was erroneously assessed).
D. Reliance on Grid
In deeming the plaintiff able to perform work existing in significant numbers in the national
economy, the administrative law judge relied on the Grid. See Record at 44.
Use of the Grid is appropriate when a rule accurately describes an individual’s capabilities
and vocational profile. See, e.g., Heckler v. Campbell, 461 U.S. 458, 462 & n.5 (1983). When a

A GAF score of 61 to 70 reflects “[s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some
difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but
generally functioning pretty well, has some meaningful interpersonal relationships.” DSM-IV-TR at 34 (boldface
omitted).
5

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claimant’s impairments involve only limitations related to the exertional requirements of work, the
Grid provides a “streamlined” method by which the commissioner can meet her burden of showing
that there is other work a claimant can perform. See, e.g., Heggarty v. Sullivan, 947 F.2d 990, 995
(1st Cir. 1991). However, in cases in which a claimant suffers from nonexertional as well as
exertional impairments, the Grid may not accurately reflect the availability of other work he or she
can do. See, e.g., id. at 996; Ortiz v. Secretary of Health & Human Servs., 890 F.2d 520, 524 (1st
Cir. 1989).

Whether the commissioner may rely on the Grid as a “framework” in these

circumstances depends on whether a nonexertional impairment “significantly affects [a] claimant’s
ability to perform the full range of jobs” at the appropriate exertional level. Id. (citation and
internal quotation marks omitted). If a nonexertional impairment is significant, the commissioner
generally may not rely on the Grid to meet her Step 5 burden but must employ other means,
typically use of a vocational expert. See, e.g., id.
Even in cases in which a nonexertional impairment is determined to be significant,
however, the commissioner may yet rely exclusively upon the Grid if “a non-strength impairment
. . . has the effect only of reducing that occupational base marginally[.]” Id. “[A]though a
nonexertional impairment can have a negligible effect, ordinarily the ALJ [administrative law
judge] must back such a finding of negligible effect with the evidence to substantiate it, unless the
matter is self-evident.” Seavey v. Barnhart, 276 F.3d 1, 7 (1st Cir. 2001) (citation and internal
quotation marks omitted).
The administrative law judge addressed the impact of the plaintiff’s nonexertional
impairments on the use of the Grid, explaining:
The [plaintiff’s] ability to perform work at all exertional levels has been
compromised by nonexertional limitations. However, these limitations have little
or no effect on the occupational base of unskilled work at all exertional levels. In
so finding, the undersigned takes notice of Garcia-Martinez v. Barnhart, 111 Fed.
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Appx. 22, 23, 2004 WL 2240136 (1st Cir. Oct. 1, 2004), wherein the First Circuit
held that a mental impairment that limited a claimant to work of a routine, repetitive
nature that did not involve undue pressure or interactions with the public did not
preclude use of the Grid as a framework. This finding is also supported by Social
Security Ruling 85-15, which sets forth that the basic mental demands of
competitive, remunerative, unskilled work include the abilities (on a sustained
basis) to understand, carry out, and remember simple instructions; to respond
appropriately to supervision, coworkers, and usual work situations; and to deal with
changes in a routine work setting. A substantial loss of ability to meet any of these
basic work-related activities would severely limit the potential occupational base.
In the instant case, the limitations described in finding #5 of this decision do not
amount to a substantial loss of such abilities.
Record at 44.
In her statement of errors, the plaintiff focuses not on the use of the Grid with respect to
the mental RFC actually found by the administrative law judge but, rather, its use with a mental
RFC determination that, she contends, is unsupported by substantial evidence. See Statement of
Errors at 18-19 & n.4. That argument is unavailing for the reasons discussed above.
However, at oral argument, her counsel made two arguments pointedly predicated on the
mental RFC actually found. First, she contended that, given the multiple limitations he assessed,
the administrative law judge was obliged to obtain the testimony of a vocational expert rather than
relying on the Grid, a proposition for which she cited Roman-Roman v. Commissioner of Soc. Sec.,
114 Fed. Appx. 410 (1st Cir. 2004). Second, she argued that neither authority cited by the
administrative law judge, Garcia-Martinez and Social Security Ruling 85-15 (“SSR 85-15”),
supports the proposition that a restriction to adapting “to occasional routine changes in the
workplace” is compatible with the sole use of the Grid. Finding 5, Record at 28.
These arguments, which were not included in the statement of errors, are waived. See, e.g.,
Farrin v. Barnhart, No. 05-144-P-H, 2006 WL 549376, at *5 (D. Me. Mar. 6, 2006) (rec. dec.,
aff’d Mar. 28, 2006). Indeed, counsel for the commissioner had no opportunity to respond even at

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oral argument to the second argument, which was raised for the first time in rebuttal. In the
alternative, even if these arguments were not waived, they are unavailing.
In Roman-Roman, the First Circuit held that an administrative law judge’s determination
that a claimant’s mental difficulties did not significantly erode the occupational base available for
unskilled light work was unsupported by substantial evidence, warranting remand. See RomanRoman, 114 Fed. Appx. at 412. The First Circuit noted that even the most positive evaluations of
the claimant’s mental condition indicated that his function was moderately limited in several
categories, including understanding, concentration, and social interaction, and, “[i]n the absence
of a better explanation as to how these medical findings illustrate that a nearly full set of unskilled
light work is available to [the claimant], we believe that a translation from medical evaluations to
job prospects was more appropriately reserved for a vocational expert.” Id. at 412.
This case is materially distinguishable from Roman-Roman in that the administrative law
judge explained his finding, with citation to authorities. As noted above, the plaintiff’s counsel
argues that the explanation does not withstand scrutiny insofar as it concerns the limitation “to
occasional routine changes in the workplace[.]” She notes that (i) Garcia-Martinez is silent with
respect to that particular limitation, see Garcia-Martinez, 114 Fed. Appx. at 23, and (ii) SSR 8515 states that the basic mental demands of unskilled work include the ability, on a sustained basis,
“to deal with changes in a routine work setting[,]” SSR 85-15, reprinted in West’s Social Security
Reporting Service Rulings 1983-1991, at 347. She argues that an ability “to deal with occasional
routine changes in the workplace” represents a “[s]ubstantial loss of the ability to “deal with
changes in a routine work setting[,]” id. (emphasis added), undermining reliance on the Grid. As
the commissioner notes, see Opposition at 19, this court has held otherwise, see, e.g., Swormstedt

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v. Colvin, No. 2:13-cv-00079-JAW, 2014 WL 1513347, at *1, *6 (D. Me. Apr. 16, 2014)
(limitation to “occasional changes in the routine workplace” not incompatible with use of Grid).
E. Failure To Address Request To Reopen Prior Decisions
The plaintiff finally complains that the administrative law judge erred in failing even to
address her counsel’s request to reopen previously adjudicated SSD and SSI claims on the basis
that she had produced new and material evidence demonstrating good cause for reopening pursuant
to 20 C.F.R. §§ 416.1488, 416.1489, 404.988, and 404.989. See Statement of Errors at 19-20;
Record at 118-20, 509-10.
She adds that reopening also was warranted pursuant to Social Security Ruling 91-5p
(“SSR 91-5p”), which provides that claimants may establish good cause for missing a deadline
when they have a mental condition that limits their ability to do things for themselves and were
unrepresented at the time of the missed deadline. See Statement of Errors at 20. She complains
that the administrative law judge failed to consider Dr. Newcomb’s evidence that she more likely
than not was “significantly impaired psychiatrically in pursuing her own remedy before she had a
lawyer.” Id. (quoting Record at 1430).
The commissioner correctly observes that, absent a constitutional claim, this court lacks
jurisdiction to review a refusal to reopen a previously adjudicated claim. See Opposition at 19-20;
Dvareckas v. Secretary of Health & Human Servs., 804 F.2d 770, 771 (1st Cir. 1986). She
persuasively argues that, even if one construes the plaintiff’s citation to SSR 91-5p as raising a
constitutional challenge, remand would be an empty exercise. See Opposition at 20; Ward v.
Commissioner of Soc. Sec., 211 F.3d 652, 656 (1st Cir. 2000) (“[A] remand is not essential if it
will amount to no more than an empty exercise.”).

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In her prior applications, the plaintiff alleged disability beginning on July 1, 2006, see
Record at 118-19, as she did in the applications at issue, see id. at 151-52. Thus, even had the
administrative law judge reopened those applications, the outcome would have been the same.
II. Conclusion
For the foregoing reasons, I recommend that the commissioner’s decision be AFFIRMED.

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 after 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.

Dated this 11th day of June, 2017.

/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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