BROWN v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 19

MEMORANDUM DECISION re: 10 SS Statement of Errors/Fact Sheet. By MAGISTRATE JUDGE JOHN H. RICH III. (ccs)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
TABETHA L. BROWN,
Plaintiff
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant

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No. 2:16-cv-00535-JHR

MEMORANDUM DECISION1
This Supplemental Security Income (“SSI”) appeal raises the question of whether the
administrative law judge (“ALJ”) 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 ALJ (i) failed to properly evaluate a report of a neuropsychological evaluation by Laura
Slap-Shelton, Psy.D., and a residual functional capacity (“RFC”) assessment by treating nurse
practitioner (“NP”) Kathleen M. Truslow, FNP-C, PMHNP-C, and (ii) erred in finding that the
plaintiff’s impairments did not meet the criteria of Listing 12.05(C), Appendix 1 to Subpart P, 20
C.F.R. § 404 (the “Listings”). See Itemized Statement of Errors Pursuant to Local Rule 16.3

1

This action is properly brought under 42 U.S.C. § 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 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. 16.

1

Submitted by Plaintiff (“Statement of Errors”) (ECF No. 10) at 2-5. I conclude that the ALJ
committed no reversible error. Accordingly, I affirm the commissioner’s decision.
Pursuant to 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 ALJ found,
in relevant part, that the plaintiff had severe impairments of a cognitive impairment/borderline
intellectual functioning, learning disorders, attention deficit hyperactivity disorder (“ADHD”),
depression, and anxiety, Finding 2, Record at 16; that she did not have an impairment or
combination of impairments that met or medically equaled the criteria of Listings 12.02, 12.04,
12.05, 12.06, or any other listing, Finding 3, id. at 17-18; that she had the RFC to perform a full
range of work at all exertional levels but with the following nonexertional limitations: she had a
limitation in concentration, persistence, or pace with the ability to understand, remember, and carry
out simple tasks and was limited to object-oriented tasks, with only occasional superficial workrelated interactions with the general public, Finding 4, id. at 20; that, considering her age (born on
February 10, 1982, and, thus, in the “younger individual” age category at all relevant times),
education (limited), work experience (transferability of skills immaterial), and RFC, there were
jobs existing in significant numbers in the national economy that she could perform, Findings 69, id. at 22-23; and that she, therefore, had not been disabled since May 6, 2013, the date that she
filed her application for SSI benefits, Finding 10, id. at 24.2 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. § 416.1481; Dupuis v. Secretary of Health & Human Servs., 869 F.2d 622, 623 (1st Cir.
1989).

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The plaintiff had also amended her alleged onset date of disability to May 6, 2013. See Record at 14.

2

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 ALJ 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. § 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).
The statement of errors also implicates Step 3 of the sequential evaluation process, at
which step a claimant bears the burden of proving that her impairment or combination of
impairments meets or equals a listing. 20 C.F.R. § 416.920(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. § 416.925(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. § 416.926(a).
I. Discussion
A. The ALJ’s Evaluation of Opinion Evidence
The plaintiff first argues that the ALJ improperly rejected portions of the Slap-Shelton
report suggesting that she could not work without significant accommodation, as well as NP

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Truslow’s opinion that she had disabling mental limitations. See Statement of Errors at 2-4. I find
no reversible error.
1. The Neuropsychological Evaluation of Dr. Slap-Shelton
Dr. Slap-Shelton completed a neuropsychological evaluation of the plaintiff in 2013. See
Record at 290-315. After administering the Wechsler Adult Intelligence Scale-IV (“WAIS-IV”),
she concluded that the plaintiff had a full-scale IQ score of 67, which placed her “in the Extremely
Low range and the 1st percentile for overall intellectual processing.” Id. at 290, 297. Dr. SlapShelton also found that the plaintiff was “functioning in the range of mild Mental Retardation” and
had severe learning disorders, major depression, and ADHD. Id. at 297. She concluded that the
plaintiff’s “reading, writing and math skills [were] below the level needed to function
independently as an adult[.]” Id. She added:
[The plaintiff] will require significant supports for employment, and will do best in
situations in which she performs simple tasks with positive friendly supervision and
protection from negative interactions with co-workers, as she is a vulnerable
individual with significantly low self-esteem and impaired comprehension.
Id. She recommended that the plaintiff would “benefit from Vocational Therapy to help her
develop a plan for part time employment or sheltered employment.” Id. at 298. She assessed the
plaintiff with a GAF score of 45. See id. at 300.3

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 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) (“DSMV”), 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.”).
3

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In the context of summarizing the record evidence, the ALJ set forth Dr. Slap-Shelton’s
diagnoses and some of the test results underpinning them. See id. at 17-20. In the context of
discussing the opinion evidence of record, she stated, in relevant part:
To the extent . . . Dr. Slap-Shelton assessed the claimant [with] a GAF of 45, which
could be consistent with serious symptoms and/or impairment of [her] social and/or
occupational functioning, this is inconsistent with the [record and medical
evidence], and is given minimal/less than probative weight with respect thereto.
Id. at 22 (citations omitted).
She explained that, with respect to the opinion evidence concerning the plaintiff’s
functioning, she gave “significant probative weight” to the assessments of agency nonexamining
consultants Lewis F. Lester, Ph.D., and David R. Houston, Ph.D., both of whom had considered
the Slap-Shelton report as well as a report of a psychological evaluation by agency examining
consultant Roger Ginn, Ph.D. See id. at 21, 59-65, 74-80, 419-20.
The plaintiff complains that, to the extent that the ALJ rejected the Slap-Shelton report, she
failed to give adequate reasons for doing so, and she failed to directly address Dr. Slap-Shelton’s
finding of a need for supported employment. See Statement of Errors at 3. She contends that the
Slap-Shelton report “supports that [she] cannot engage in employment without significant
accommodation which would not be available in competitive employment[,]” and, while Dr. SlapShelton stated that she would “do best” with the specific protections mentioned, the report overall
suggests that those protections were necessary for the performance of full-time employment. Id.
(quoting Record at 297).
Elaborating on these points at oral argument, the plaintiff’s counsel contended that,
although Dr. Slap-Shelton was not a treating source, several factors relevant to the weighing of
“medical opinion” evidence counseled in favor of the adoption of her opinion: its supportability,

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given the extensive testing underpinning it, and Dr. Slap-Shelton’s status as a specialist and an
examining (rather than nonexamining) consultant.4
The plaintiff asserts that the ALJ’s error in discounting or ignoring Dr. Slap-Shelton’s
opinion was not harmless given the testimony of a vocational expert (“VE”) at hearing that a need
for “positive, friendly supervision and protection from negative interaction with coworkers” would
be available only in “a sheltered situation” and “would preclude regular competitive
employment[.]” Statement of Errors at 2, 4; Record at 53.
While I agree with the plaintiff that portions of the Slap-Shelton report qualify as “medical
opinions” that the ALJ was required to evaluate pursuant to 20 C.F.R. § 416.927(c), I find no
harmful error.5
First, as the plaintiff’s counsel acknowledged at oral argument, although Dr. Slap-Shelton
saw the plaintiff on five occasions, she was an examining, rather than a treating, source. Therefore,
the ALJ was not required to provide good reasons for her handling of those opinions, as would be
true for the opinions of a treating source. See Tompkins v. Colvin, No. 1:13-CV-73-GZS, 2014
WL 294474, at *3 (D. Me. Jan. 27, 2014) (“A onetime examining consultant is not a ‘treating

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The factors relevant to the assessment of the weight to be given medical opinions are: (i) examining relationship,
(ii) treatment relationship, including length of the treatment relationship, frequency of examination, and nature and
extent of the treatment relationship, (iii) supportability – i.e., adequacy of explanation for the opinion, (iv) consistency
with the record as a whole, (v) specialization – i.e., whether the opinion relates to the source’s specialty, and (vi) other
factors highlighted by the claimant. See 20 C.F.R. § 416.927(c).
5
“Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect
judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis,
what you can still do despite impairment(s), and your physical or mental restrictions.” 20 C.F.R. § 416.927(a)(2).
There is no dispute that Dr. Slap-Shelton is an acceptable medical source. The commissioner contended that Dr. SlapShelton’s statements do not qualify as “medical opinions” because they do not constitute a mental RFC assessment.
See Defendant’s Opposition to Plaintiff’s Itemized Statement of Errors (“Opposition”) (ECF No. 13) at 4, 6. However,
“medical opinions” are not limited to RFC assessments; they are defined more broadly as statements “reflect[ing]
judgments about the nature and severity of your impairment(s)[.]” 20 C.F.R. § 416.927(a)(2).

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source’ and therefore is not subject to the ‘treating source’ rule, pursuant to which a medical
opinion may be rejected only for good reasons.”) (citation and internal quotation marks omitted).6
However, in any event, the ALJ provided good reasons for her decision to accord minimal
weight to Dr. Slap-Shelton’s GAF score assessment, explaining that she deemed a finding that the
plaintiff had serious symptoms and/or impairment of her social and/or occupational functioning
“inconsistent with the just discussed record and the aforementioned medical evidence[.]” Record
at 22 (citation omitted).
As the commissioner notes, see Opposition at 5-6, that contrary evidence included not only
the Lester and Houston mental RFC assessments but also evidence that the plaintiff had previously
worked as a cashier and fast-food worker, cared for her children, including a child with special
needs, completed housework, shopped for food and prepared meals, had recently completed course
work toward her high school diploma, with plans to take further courses to that end, and used a
computer, see Record 18, 21.7
Moreover, the ALJ accorded significant probative weight to the RFC opinions of Drs.
Lester and Houston in part because they had considered the Slap-Shelton report. See id. at 18-19.
In that respect, as the commissioner notes, see Opposition at 5, the ALJ took the Slap-Shelton
findings into account indirectly, as well as directly, see, e.g., Preston v. Colvin, Civil No. 2:13CV-321-DBH, 2014 WL 5410290, at *4 (D. Me. Oct. 21, 2014) (ALJ did not err in failing to adopt

At oral argument, the plaintiff’s counsel contended that the requirement that an ALJ provide good reasons for the
handling of a treating source opinion does little more than restate the requirement applicable to the handling of any
medical opinion: to provide an adequate explanation for the weight given it. Yet, while the relevant regulation requires
the evaluation of every medical opinion, it promises the provision of “good reasons” only for the weight given to the
opinion of a treating source. 20 C.F.R. § 416.927(c)(2).
7
Drs. Lester and Houston found that the plaintiff could “understand and remember simple tasks and procedures[,]”
could “be reliable and sustain 2-hour blocks at simple tasks at a consistent pace without significant interruption from
mental symptoms over a normal work day/week[,]” could not “interact with the public due to her cognitive
compromises, anxiety and depression” but could “interact with co-workers and supervisors in a normal work
setting[,]” and could “adapt to routine changes[.]” Record 63-64, 78-80.
6

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opinion of examining consultant when she relied on opinion of agency nonexamining consultant
who had reviewed it and adequately stated her reasons for giving examining consultant’s opinions
only some weight).8
While, as the plaintiff’s counsel noted at oral argument, the ALJ could have chosen to
afford greater weight to the Slap-Shelton findings on the basis of the factors he highlighted, she
was not obliged to do so. It was her province to weigh the evidence and to choose to discount the
Slap-Shelton findings on the basis of their inconsistency with other record 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.”).9
Turning to the ALJ’s failure to discuss portions of the Slap-Shelton report discussing
vocational considerations, the plaintiff points to no authority that an ALJ is required to discuss, as
well as to consider, every medical opinion contained within the report of an examining source.
Nonetheless, assuming error, it is harmless. The ALJ articulated why, in connection with Dr. SlapShelton’s GAF score assessment, she gave little weight to her opinion that the plaintiff had, inter
alia, a serious impairment in occupational functioning. There is no reason to believe that, had the

At oral argument, the plaintiff’s counsel asserted that any indirect reliance by the ALJ on the Lester and Houston
opinions to account for the Slap-Shelton findings was misplaced because they barely mentioned the Slap-Shelton
report, did not treat it as “opinion” evidence, and did not specifically mention Dr. Slap-Shelton’s findings regarding
the plaintiff’s vocational needs. See Record at 59-65, 75-80. However, it is too great a stretch to infer that these
omissions mean that they simply ignored the relevant portions of that lengthy report.
9
The plaintiff argues, in passing, that the Lester and Houston opinions do not comprise substantial evidence in
opposition to Dr. Slap-Shelton’s findings because, whereas Drs. Lester and Houston did not find severe impairments
of ADHD, anxiety, or depression, the ALJ did. See Statement of Errors at 3. However, that proposition is not selfevident, and she offers neither developed argumentation nor citation to authority to support it. See id. Accordingly,
the point is waived. See, e.g., United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”).
8

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ALJ directly addressed the portions of the Slap-Shelton report on which the plaintiff relies, the
outcome would have been different.
Remand, accordingly, is unwarranted on the basis of this point of error.
2. The RFC Assessment of NP Truslow
NP Truslow completed a mental RFC assessment form in 2015 stating that the plaintiff had
poor to no ability to, inter alia, follow work rules, relate to co-workers, deal with the public, deal
with work stresses, function independently, or maintain attention or concentration. See id. at 58284. In the narrative portion of the form, NP Truslow referred readers to Dr. Slap-Shelton’s report
when prompted to describe the plaintiff’s limitations and the findings supporting them, adding:
“Intellectual Disability complicated by Attention Deficit and Poor Social Skills.” Id. at 583. In
the section requesting remarks, N.P. Truslow stated that, in her opinion, the plaintiff “would have
great difficulty in maintaining part time and full time work due to her social and intellectual
deficits.” Id. at 584.
The ALJ afforded NP Truslow’s RFC assessment minimal probative weight, deeming it
inconsistent with the medical and other evidence of record. See id. at 21-22. She added that, to
the extent that NP Truslow assessed a GAF score of 50, which, like a score of 45, can be consistent
with serious symptoms and/or impairment of social and/or occupational functioning, the GAF
score was inconsistent with medical and other evidence of record. See id. at 22.
The plaintiff argues that the ALJ’s evaluation of NP Truslow’s opinion violated Social
Security Ruling 06-03p (“SSR 06-03p”), which governs the evaluation of opinions of nonacceptable medical sources such as nurse practitioners. See Statement of Errors at 4; SSR 06-03p,
reprinted in West’s Social Security Reporting Service Rulings 1983-1991 (Supp. 2017), at 331; 20
C.F.R. § 416.913(a) (nurse practitioners not listed among “acceptable medical sources”).

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SSR 06-03p provides, in relevant part:
Since there is a requirement to consider all relevant evidence in an individual’s case
record, the case record should reflect the consideration of opinions from medical
sources who are not “acceptable medical sources” and from “non-medical sources”
who have seen the claimant in their professional capacity. Although there is a
distinction between what an adjudicator must consider and what the adjudicator
must explain in the disability determination or decision, the adjudicator generally
should explain the weight given to opinions from these “other sources,” or
otherwise ensure that the discussion of the evidence in the determination or decision
allows a claimant or subsequent reviewer to follow the adjudicator’s reasoning,
when such opinions may have an effect on the outcome of the case.
SSR 06-03p at 331.
The ALJ complied with that ruling, acknowledging NP Truslow’s assessments of the
plaintiff’s mental RFC and GAF score and explaining that she afforded them little weight because,
as in the case of Dr. Slap-Shelton’s GAF score assessment, they were inconsistent with other
evidence of record, including, as noted above, the plaintiff’s activities of daily living and the
opinions of Drs. Lester and Houston. See Record at 21-22.10 No more was required.
Remand, accordingly, is unwarranted on the basis of this point of error.
B. Listing 12.05(C)
The plaintiff next argues that the ALJ erred at Step 3 in determining that her cognitive
impairment/borderline mental functioning did not meet Listing 12.05(C). See Statement of Errors
at 4-5. I find no error.

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As the commissioner points out, see Opposition at 8-9, the record evidence that the ALJ deemed inconsistent with
the Truslow assessments included NP Truslow’s own treatment notes, see Record at 17 (summarizing NP Truslow’s
treatment notes as indicating, inter alia, that plaintiff’s depression/anxiety “improved with medication and was
mild[,]” that she “was generally seen every three months until September 2014 and then had a gap in treatment until
May 2015[,]” and that findings on mental status examination “were generally unremarkable”).

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Prior to amendments effective January 17, 2017,11 and for purposes of the plaintiff’s claim,
Listing 12.05(C) read as follows:
12.05 Intellectual disability: Intellectual disability refers to significantly
subaverage general intellectual functioning with deficits in adaptive functioning
initially manifested during the developmental period; i.e., the evidence
demonstrates or supports onset of the impairment before age 22.
The required level of severity for this disorder is met when the requirements
in A, B, C, or D are satisfied.
***
C.
A valid verbal, performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing an additional and significant workrelated limitation of function[.]
Listing 12.05(C).
A claimant bears the burden of establishing that her impairment(s) meets all of the criteria
of a listing. See, e.g., Dudley, 816 F.2d at 793. Here, the ALJ acknowledged that the plaintiff met
the IQ requirement as well as the requirement to demonstrate the existence of another mental
impairment imposing additional, significant work-related limitation of function. See Record at 18;
Finding 2, id. at 16. However, she concluded that “the record fail[ed] to clearly demonstrate that
[the plaintiff] ha[d] had this level of functioning with significant deficits in adaptive functioning
which initially manifested during the developmental period (prior to age 22).” Id. at 18.
The plaintiff contends that this finding is both unsupported and misstates the requirements
of the listing. See Statement of Errors at 4-5. She points out that she was not required to
demonstrate that she had “the same level of impairment” prior to age 22 but, rather, pursuant to

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The commissioner revised the Listings regulations regarding mental disorders effective January 17, 2017, to reflect,
inter alia, “advances in medical knowledge.” Revised Medical Criteria for Evaluating Mental Disorders “Revised
Criteria”), 81 Fed. Reg. 66138, 66138 (Sept. 26, 2016). The version of the Listings in effect as of the date of the
ALJ’s decision controls. See, e.g., Revised Criteria, 81 Fed. Reg. at 66138 n.1 (“We expect that Federal courts will
review our final decisions using the rules that were in effect at the time we issued the decisions.”).

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the so-called “capsule definition” of Listing 12.05, that her impairment caused “deficits in adaptive
functioning initially manifested” prior to age 22. Id. at 5; Listing 12.05(C). She argues that she
should have been found to meet that standard in view of her age at the time of testing (only 31),
her need for special education while in school, her failure to complete the requirements for a GED,
and her lack of any significant work history. See Statement of Errors at 5.
While the ALJ did misstate the standard, I conclude that the error is harmless in that her
analysis demonstrates its correct application, and her conclusion that the plaintiff did not meet that
standard is supported by substantial evidence. She acknowledged the evidence on which the
plaintiff relies but explained why she did not consider it dispositive in her favor, stating:
[D]espite having received special education through the 9th grade and failing to
obtain a GED, [the plaintiff] has taken classes for same and per the record she has
taken classes to obtain her high school diploma (taking classes 3 days a week for 8
months, passing courses in English, math and art and needing 12 credits for her
diploma) and is about to resume same. Also, she has done some work activity,
including as a cashier and fast food worker and, as hereinafter discussed, . . . it is
concluded she has had only mild restriction of her daily activities, as she has cared
for her children, including one child with special needs, done housework, meal
preparation and shopping, used a computer and attended school. Moreover, [Drs.
Lester and Houston], in assessments dated February 20, 2014, and August 21, 2014,
which considered the neuropsychological evaluation of Dr. Slap-Shelton and the
consultative psychological evaluation of Dr. Ginn, opined that the [plaintiff] did
not have an intellectual disability . . . which was documented during the
developmental period and which resulted in severe impairment of adaptive
functioning.
Record at 18 (citations omitted).
As the commissioner contended both in her brief and through counsel at oral argument, the
facts of this case are strikingly similar to those of Libby v. Astrue, No. 2:10-cv-292-JAW, 2011
WL 2940738 (D. Me. July 19, 2011) (rec. dec. aff’d Aug. 24, 2011), aff’d, 473 Fed. Appx. 8 (1st
Cir. 2012), in which this court upheld an ALJ’s determination that a claimant had failed to

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demonstrate, for purposes of the Listing 12.05 capsule definition, that her impairment caused
deficits in adaptive functioning initially manifested before age 22.
The claimant in Libby had been provided with special education classes, failed to earn a
high school diploma or GED, and had difficulty running a cash register at work, but also had a
driver’s license, cooked, cleaned, helped care for her disabled husband, and occasionally babysat
grandchildren. See Libby, 2011 WL 2940738, at *11-*12.12 The court concluded that, while “the
evidence as a whole does not compel a conclusion that the plaintiff failed to meet the capsule
definition of Listing 12.05[,] . . . it permits that conclusion.” Id. at *12. The same is true here.
At oral argument, the plaintiff’s counsel contended that Libby is distinguishable because:
(i) in this case, his client was in special education, had a poor prior work history, and attempted
but failed to complete a GED, switching to adult education classes because she found the GED
work too difficult, and (ii) in Libby, the record contained conflicting expert evidence that the court
recognized the ALJ was required to resolve. I perceive no material distinction.
The claimant in Libby, like the plaintiff here, also produced evidence that she was in special
education at school, had tried but failed to obtain a GED, and had, if not a “poor” work history,
difficulty at work running a cash register. See id. And, while here, unlike in Libby, there is no
conflict in the expert evidence, that fact bolsters, rather than undermines, the ALJ’s finding.
Whereas, in Libby, there was conflicting expert evidence as to whether the claimant’s impairment
met Listing 12.05(C), see Libby, 2011 WL 2940738, at *11, here, Drs. Lester and Houston agreed
that her impairments did not meet any listing, see Record at 61, 76-77.

The Libby court was “unpersuaded that the capsule definition requires exclusive focus on a claimant’s deficits in
adaptive functioning prior to age 22[,]” observing that “[c]ourts construing the capsule definition of Listing 12.05
have considered evidence of a claimant’s current adaptive functioning relevant to, and even dispositive of, the question
of whether that definition is satisfied.” Libby, 2011 WL 2940738, at *10 (emphasis in original).
12

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On this record, as was true in Libby, “this court must refrain from the temptation to resolve
conflicts differently than the [ALJ] and substitute its judgment for hers.” Libby, 2011 WL
2940738, at *12.
II. Conclusion
For the foregoing reasons, the commissioner’s decision is AFFIRMED.

Dated this 15th day of October, 2017.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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