WILBUR v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
Filing
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REPORT AND RECOMMENDED DECISION re 9 Social Security Statement of Errors/Fact Sheet. Objections to R&R due by 2/26/2019. By MAGISTRATE JUDGE JOHN C. NIVISON. (MFS)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JEREMY W.,
Plaintiff
v.
SOCIAL SECURITY ADMINISTRATION
COMMISSIONER,
Defendant
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2:18-cv-00195-DBH
REPORT AND RECOMMENDED DECISION
On Plaintiff Jeremy W.’s application for supplemental security income benefits
under Title XVI of the Social Security Act, Defendant, the Social Security Administration
Commissioner, found that Plaintiff has a severe impairment, but retains the functional
capacity to perform substantial gainful activity. Defendant, therefore, denied Plaintiff’s
request for disability benefits. Plaintiff filed this action to obtain judicial review of
Defendant’s final administrative decision pursuant to 42 U.S.C. § 405(g).
Following my review of the record and after consideration of the parties’ arguments,
I recommend the Court affirm the administrative decision.
The Administrative Findings
The Commissioner’s final decision is the May 17, 2017 decision of the
Administrative Law Judge. (ALJ Decision, ECF No. 7-2.)1 The ALJ’s decision tracks the
Because the Appeals Council found no reason to review that decision (R. 1), Defendant’s final decision
is the ALJ’s decision.
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familiar five-step sequential evaluation process for analyzing social security disability
claims, 20 C.F.R. §§ 404.1520, 416.920.
The ALJ found that Plaintiff has a severe personality disorder that will cause more
than minimal limitations in Plaintiff’s capacity for work activity, but is not of sufficient
severity to compel a finding of disability under the Listing of Impairments, Appendix 1 to
20 C.F.R. Part 404, Subpart P. More specifically, the ALJ found that Plaintiff is limited to
no more than medium exertion involving simple routine tasks, provided he does not have
to collaborate with others and does not work with the general public. (ALJ Decision ¶¶ 24.) Among other evidence considered by the ALJ were the expert opinions of Disability
Determination Services consultants Robert Maierhofer, Ph.D. (Ex. 1A) and Mary Burkhart,
Ph.D. (Ex. 3A), which opinions the ALJ accorded “great weight” in reaching her RFC
finding. (R. 22.) The ALJ also gave great weight to the opinion of Donna Gates, Ph.D.,
who provided a consultative examination report. (Ex. 4F.)
After considering the evidence, including the testimony of a vocational expert, the
ALJ determined that Plaintiff would be able to satisfy the demands of the specific mediumexertion jobs of floor cleaner, bus/truck washer, and landscape laborer, which jobs exist in
substantial numbers. (ALJ Decision ¶ 9, R. 23.) Given the availability of jobs in the
national economy that Plaintiff can perform, the ALJ found Plaintiff not disabled for
purposes of the Social Security Act. (R. 24.)
Standard of Review
A court must affirm the administrative decision provided the decision is based on
the correct legal standards and is supported by substantial evidence, even if the record
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contains evidence capable of supporting an alternative outcome. Manso-Pizarro v. Sec’y
of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per curiam); Rodriguez Pagan v. Sec’y of HHS,
819 F.2d 1, 3 (1st Cir. 1987). Substantial evidence is evidence that a reasonable mind
might accept as adequate to support a finding. Richardson v. Perales, 402 U.S. 389, 401
(1971); Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st Cir. 1981). “The ALJ’s findings
of fact are conclusive when supported by substantial evidence, but they 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).
Discussion
Plaintiff argues the ALJ did not properly assess the expert opinion evidence and
should have given more weight to the opinion of vocational expert Marie Levesque.
A. Vocational and Neurological Assessments
On March 10, 2017, Ms. Levesque, Rehabilitation Counselor II, summarized her
vocational counseling work with Plaintiff, and reported that Plaintiff had quit the two jobs2
he obtained through vocational services “due to issues with coworkers and/or supervisors.”
(Ex. 27E, ECF No. 7-6.) According to Ms. Levesque, Plaintiff “demonstrated himself to
be unable to maintain employment for any length of time,” despite on-the-job support, and
needed to develop the “soft skills that are necessary to be successful on the job.” (Id.)
In November 2014, Ms. Levesque referred Plaintiff to Jason Merrin, Ph.D., Psy.D.,
Plaintiff’s two jobs involved working as a cashier and stock person at a Lewiston convenience store, in
December 2015, and working in food production at a Little Caesars restaurant, in November, 2016. (Ex.
15E.)
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for a neurological consultation. (Ex. 2F, R. 693.) Dr. Merrin’s report, dated February 26,
2015, reflects that on multiple tests, Plaintiff generally achieved “average” scores. Dr.
Merrin characterized Plaintiff as having a limited fund of information; fair-to-poor insight,
judgment and impulse control; a tendency to be distrustful and alienated in relationships
(R. 696-97); and “significant externalizing, acting-out behavior, which is likely to have
gotten him into difficulties,” including “difficulties with individuals in positions of
authority (R. 701). Dr. Merrin noted that he forgot to administer certain “processing
subtests” to Plaintiff, and opined that, as a result, the “validity and reliability of the
cognitive portion of the evaluation and of the overall findings” was reduced. (R. 697.) Dr.
Merrin’s diagnostic impression was “antisocial personality disorder,” and “bipolar II
disorder with mood-congruent psychotic features.” (R. 703.) Dr. Merrin did not consider
Plaintiff’s intellect to pose a difficulty, but he determined that mood and behavior
dysregulation were of primary concern. (R. 704.) Dr. Merrin opined that Plaintiff would
likely succeed with maintaining employment if he could “stabilize his maladaptive
behavior” and suggested that Plaintiff focus on obtaining services to achieve stability and
learn coping strategies, and secure his GED, before pursuing employment further. (R. 705706.)
The ALJ was not persuaded by Ms. Levesque’s opinion that Plaintiff is in fact
unable to maintain employment. The ALJ gave the opinion no weight and characterized it
as based on “partial information.” (R. 22.) The ALJ attributed some weight to Dr. Merrin’s
findings, but she declined to give them controlling weight given Dr. Merrin’s observation
that he had neglected to perform all of the pertinent tests and therefore considered the
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results not entirely reliable. (R. 22.) The ALJ relied principally on opinions offered by
agency consultants who assessed the longitudinal record, including Dr. Merrin’s
neuropsychological evaluation and some of the vocational rehabilitation history.
The ALJ’s assessment of the record and the opinions is sound and supported by the
record. As the ALJ observed, Ms. Levesque’s opinion does not appear to be based on a
review of all the pertinent medical records. Furthermore, Ms. Levesque’s opinion cannot
fairly be construed as an RFC assessment. Brooks v. Berryhill, No. 2:16-CV-00553-NT,
2017 WL 4119587, at *5 (D. Me. Sept. 17, 2017) (opinion lacking in specific RFC opinion
may be relegated less than controlling weight, as a general rule). Finally, the ALJ’s
decision not to give controlling weight to Dr. Merrin’s opinion is reasonable and
understandable given Dr. Merrin’s acknowledgement that his failure to process certain tests
“reduce[d] the validity and reliability of the cognitive portion of the evaluation and the
overall findings.” (R. 698.)
B. Disability Determination Services Assessments
Plaintiff argues the consultants’ opinions do not provide substantial evidence for the
ALJ’s RFC findings. Specifically, Plaintiff argues that because Dr. Gates contemplated
that Plaintiff may be on the autism spectrum (Asperger’s disorder), the ALJ was required
to include Asperger’s as a severe impairment at step 2 and include a corresponding RFC
limitation on interaction with supervisors. (Statement of Errors at 4-6.)
Following a referral from Disability Determination Services, Dr. Gates conducted a
consultative examination in April 2015 and issued a report. (Ex. 4F, ECF No. 7-8.) Dr.
Gates wrote that Plaintiff “appears to have Asperger’s disorder that may negatively impact
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his ability to relate well to others.” (R. 720.) Dr. Gates, however, otherwise determined
Plaintiff was able to follow work rules, could manage a mild level of work-related stress,
function independently on simple tasks, maintain his personal appearance, and behave in
an emotionally stable manner. (Id.)
First, Dr. Gates’ observation does not constitute a definitive diagnosis of Asperger’s
disorder. The fact that Plaintiff “appears to have Asperger’s disorder that may negatively
impact his ability to relate well to others” (id. emphasis added) does not compel a finding
that Plaintiff is severely impaired due to Asperger’s disorder. In addition, regardless of
whether Plaintiff in fact has a form of autism, the record reflects that any limitations related
to Dr. Gates’ findings were incorporated in the RFC.
Moreover, two consulting experts reviewed Dr. Gates’ report and the longitudinal
record, including Dr. Merrin’s neurological report, and did not find Plaintiff had Asperger’s
finding; instead the consultants’ review “confirm[ed] a non-specific personality disorder
and alcohol dependence in tenuous remission.” (Robert Maierhofer, Ph.D., Ex. 1A, R. 7275; Mary Burkhart, Ph.D., Ex. 3A, R. 84.) The opinions of the consulting experts constitute
substantial evidence to support the ALJ’s finding that Plaintiff’s severe impairment is more
appropriately characterized as a personality disorder.
Finally, Plaintiff maintains that because Drs. Burkhart and Maierhofer assessed a
“moderate” degree of limitation in Plaintiff’s ability to “accept instructions and respond
appropriately to criticism from supervisors” (R. 75, 87), the ALJ erred when she failed to
include such a restriction in her RFC finding.
(Statement of Errors at 6-7.)
The
consultants’ ultimate RFC determinations, however, are generally expected to be set forth
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in the narrative sections of the form. See, e.g., Garcia-Trujillo v. Colvin, No. 1:14-CV00308-JCN, 2015 WL 1279610, at *3 n.6 (D. Me. Mar. 20, 2015); Melland v. Soc. Sec.
Admin. Comm’r, No. 1:11-CV-00223-NT, 2012 WL 1800722, at *4, *7 (D. Me. Apr. 26,
2012). Here, in describing Plaintiff’s RFC, the experts did not identify a need for a
limitation on the extent of Plaintiff’s work-interaction with supervisors, noted Plaintiff’s
self-report that he does not have difficulties with authorities, and determined that Plaintiff
should be restricted to simple-tasks and a small group of coworkers. (R. 75, 87 – 88.) On
this record, the ALJ reasonably and supportably determined that Plaintiff could interact
appropriately with supervisors in the context of simple work “in si[ght] of co-workers but
no teamwork or collaborative work.” (R. 20.).3
CONCLUSION
Based on the foregoing analysis, I recommend the Court affirm the administrative
decision.
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, and request for oral
argument before the district judge, if any is sought, within fourteen (14) days
of being served with a copy thereof. A responsive memorandum and any
request for oral argument before the district judge shall be filed within
fourteen (14) days after the filing of the objection.
“[I]ssues of credibility and the drawing of permissible inference from evidentiary facts are the prime
responsibility of the Commissioner, and the resolution of conflicts in the evidence and the determination of
the ultimate question of disability is for [her], not for the doctors or for the courts.” Purdy v. Berryhill, 887
F.3d 7, 13 (1st Cir. 2018) (internal quotation marks omitted). “An applicant’s residual functional capacity
is, after all, an administrative finding reserved to the Commissioner.” Id. at 14 (citing 20 C.F.R. §§
416.927(d)(2), 416.946).
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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.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 12th day of February, 2019.
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