Grant v. US Social Security Administration, Acting Commissioner
Filing
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///ORDER denying 8 Motion to Reverse Decision of Commissioner; granting 9 Motion to Affirm Decision of Commissioner. Clerks shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Rachel Lyn Grant
v.
Civil No. 14-cv-351-JD
Opinion No. 2015 DNH 059
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration
O R D E R
Rachel Lyn Grant seeks judicial review, pursuant to 42
U.S.C. § 405(g), of the decision of the Acting Commissioner of
the Social Security Administration, denying her application for
supplemental security income.
Grant moves to reverse and remand
the decision, contending that the Administrative Law Judge
(“ALJ”) erred in concluding that she was not disabled.
The
Acting Commissioner moves to affirm.
Standard of Review
In reviewing the final decision of the Acting Commissioner
in a social security case, the court “is limited to determining
whether the ALJ deployed the proper legal standards and found
facts upon the proper quantum of evidence.”
Nguyen v. Chater,
172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart, 276
F.3d 1, 9 (1st Cir. 2001).
The court defers to the ALJ’s
factual findings as long as they are supported by substantial
evidence.
scintilla.
§ 405(g).
“Substantial evidence is more than a
It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”
Astralis
Condo. Ass’n v. Sec’y Dep’t of Housing & Urban Dev., 620 F.3d
62, 66 (1st Cir. 2010).
Substantial evidence, however, “does
not approach the preponderance–of-the-evidence standard normally
found in civil cases.”
Truczinskas v. Dir., Office of Workers’
Compensation Programs, 699 F.3d 672, 677 (1st Cir. 2012).
Background
The background information is summarized from the parties’
joint statement of material facts, document no. 10.
Grant was twenty years old when she first applied for
social security benefits.
While Grant was in school, testing
results showed that she was in the average to low average range
of intellectual functioning, and she was diagnosed or coded with
attention deficit hyperactivity disorder (“ADHD”).
Grant
received special education services beginning in preschool.
is a high school graduate and worked at Dunkin Donuts until
sometime in 2010.
Grant has two children.
2
She
After Grant applied for supplemental security income, she
was evaluated by Joseph F. Wojcik, Ph.D for the Maine Disability
Determination Services.
Based on test results, Grant’s
intellectual functioning was determined to be in the borderline
classification for intelligence.
Dr. Wojcik thought that the
test scores were not representative of Grant’s overall ability
to function and that she could grasp directions with one or two
steps and do routine job assignments.
On July 30, 2012, Jason Merrin, Ph.D., evaluated Grant’s
mental status based on an examination and his review of her
records.
Dr. Merrin noted that Grant had a slow flow of
cognition but no psychotic symptoms and that she reported no
anxiety or panic symptoms.
normal results.
Grant’s mental status test provided
During examination on a second test, Grant had
attention and concentration within normal limits but showed
borderline working habits, poor frustration tolerance,
borderline rapport with Dr. Merrin, and a sullen mood and
affect.
Her scores on that test were in the borderline range.
In Dr. Merrin’s opinion, Grant could manage her own funds as
long as she maintained her medications, but she might need
assistance with delayed memory.
Dr. Merrin also noted that
Grant’s persistence was borderline, her sustained concentration
was within normal limits when she was medicated, her daily
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activities seemed intact, but her social interaction and
adaptation were impaired.
Lewis F. Lester, Ph.D., reviewed Grant’s record on August
10, 2012.
Dr. Lester found that Grant had understanding and
memory limitations, concentration and persistence limitations,
social interaction1 limitations, and adaptation limitations.
Despite her limitations, Dr. Lester found that Grant could
understand and remember simple tasks and procedures, could be
reliable and sustain consistent pace in two-hour blocks in a
work day and week, and could interact with co-workers and
supervisors but not the general public.
He also found that the
diagnosis of ADHD was not established by the record.
On March 27, 2013, Grant was examined by Jeffrey M. Wagner,
Ph.D., at the request of Grant’s attorney.
Based on his
examination and review of Grant’s records, Dr. Wagner diagnosed
major depression, pain disorder, social anxiety disorder, ADHD,
and borderline intellectual functioning.
He found that Grant
was incapable of sustaining independent and full-time gainful
employment.
After her application for benefits was denied, Grant
requested a hearing before an ALJ that was held on April 9,
1At
the time of the hearing, Grant had one child and was
pregnant with her second child.
4
2013.
Grant testified at the hearing that she graduated from
high school but attended special education classes while in
school and had the most difficulty with reading, spelling, and
writing.
She also said that she had difficulty focusing and
that she experienced panic attacks and depression a couple of
times each week.
Grant testified that she had a driver’s license and a car
but her boyfriend drove her places in the car.
She testified
that her boyfriend’s parents helped her take care of her baby
boy.
She also said that she usually had someone else with her
when she went out because she did not like to go out or to shop
alone.
The ALJ issued the decision on Grant’s application on April
26, 2013.
The ALJ found that Grant had severe impairments which
were “an organic mental disorder/borderline intellectual
functioning with associated learning disorder and attentiondeficit hyperactivity disorder; and an affective
disorder/depression."
Despite those impairments, the ALJ found
that Grant had the residual functional capacity to perform a
full exertional range of work, with simple instructions and
simple tasks on a consistent schedule and that she could
interact with coworkers and supervisors but not the general
public.
The ALJ also found that Grant could adapt to occasional
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routine changes in the workplace.
Because the ALJ found that
Grant’s non-exertional limitations did not significantly erode
the number of unskilled jobs, he concluded, based on section
204.00 of the Medical Vocational Guidelines (“the Grid”) that
Grant was not disabled.
The Appeals Council denied Grant’s
request for review.
Discussion
Grant moves to reverse and remand the decision on the
grounds that the ALJ erred in relying on the Grid, erred in
giving little weight to Dr. Wagner’s opinion, and erred in
failing to follow the guidance provided by Titles II and XVI:
Documenting and Evaluating Disability in Young Adults, SSR 112p, 2011 WL 4055665 (Sept. 12, 2011) (“SSR 11-2p”).
The Acting
Commissioner moves to affirm, contending that the ALJ properly
relied on the Grid, properly evaluated Dr. Wagner’s opinion,
properly considered Grant’s educational records in accordance
with the guidance of SSR 11-2p.
A.
Expert Opinions
The ALJ is required to consider the medical opinions along
with all other relevant evidence in a claimant’s record.
C.F.R. § 416.927(b).
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Medical opinions are evaluated based on
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the nature of the medical source’s relationship with the
claimant, the consistency of the opinion with the other record
evidence, the medical source’s specialty, and other factors that
may be brought to the ALJ’s attention.
§ 416.927(c).
Generally, more weight is given to the opinion of a medical
source who examined the claimant.
§ 416.927(c)(1).
A medical
source’s opinion that the claimant is “disabled” or “unable to
work” does not establish that finding, which is the
responsibility of the Acting Commissioner.
§ 416.927(d)(1).
1. Dr. Wagner
Grant contends that the ALJ erred in failing to give
substantial weight to the opinion provided by Dr. Wagner because
Dr. Wagner reviewed all of the record evidence and because his
opinion was consistent with the record evidence.
Dr. Wagner
diagnosed Grant with major depression, pain disorder, social
anxiety disorder, ADHD, and borderline intellectual functioning.
He stated that in his opinion Grant could not sustain
“independent, full time gainful employment.”
The ALJ explained that he gave little weight to Dr.
Wagner’s opinion, noting that Dr. Wagner was not a treating
source, because Dr. Wagner’s description of Grant’s presentation
during examination was inconsistent with her record.
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Specifically, while Dr. Wagner noted that Grant had severe
depression, had severe anxiety and panic attacks, and obsessivecompulsive tendencies, the ALJ cited record evidence showing
that Grant did not experience any of those symptoms.
The ALJ
also noted that Dr. Wagner’s opinion that Grant was unable to
perform the basic mental demands of unskilled work was
inconsistent with Grant’s treatment records, particularly the
treatment notes provided by ARPN Kathleen MacLean, and with
Grant’s level of daily activity.
Although Grant cites some evidence that she interprets to
support Dr. Wagner’s opinion, other evidence, as cited by the
ALJ, is inconsistent with Dr. Wagner’s opinion.
Therefore, the
ALJ’s evaluation of Dr. Wagner’s opinion comports with the
requirements of § 416.927(c).
2.
Dr. Lester
Grant also faults the ALJ for relying on the opinion
provided by Dr. Lester.
ALJs are required to consider the
opinions of state agency psychological consultants about the
nature and severity of an applicant’s impairments because state
agency consultants “are experts in the Social Security
disability programs.”
Titles II and XVI:
Consideration of
Administrative Findings of Fact by State Agency Medical and
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Psychological Consultants and Other Program Physicians, SSR 966p, 1996 WL 374180 (July 2, 1996) (“SSR 96-6p”).
The ALJ may
rely on the opinions of state agency consultant psychologists,
using the same considerations that apply to treating or
examining medical sources to assess those opinions.
§ 416.927(e); Ormon v. Astrue, 497 F. App’x 81, 84 (1st Cir.
2012); Smallidge v. Colvin, 2014 WL 799537, at *5 (D.N.H. Feb.
28, 2014); SSR 96-6p.
A state agency psychologist’s opinion may
provide substantial evidence to support the ALJ’s findings when
the psychologist reviewed most of the relevant record evidence
and particularly when other opinions in the record reinforce
that opinion.
Pelletier v. Colvin, 2015 WL 247711, at *14
(D.R.I. Jan. 20, 2015) (citing Berrios Lopez v. Sec’y of Health
& Human Servs., 951 F.2d 427, 431 (1st Cir. 1991)); Howard v.
Colvin, --- F. Supp. 3d ---, 2014 WL 5361533, at *8 (D. Mass.
Oct. 22, 2014).
The ALJ explained that he relied on Dr. Lester’s opinion
because as a state agency consultant Dr. Lester is familiar with
the social security standards and because the opinion was
consistent with Grant’s record.
Grant contends that some of the
evidence in the record, as she interprets it, is not consistent
with Dr. Lester’s opinion.
The evidence Grant cites does not
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directly contradict Dr. Lester’s findings, and other evidence in
the record supports those findings.
Dr. Lester’s opinion is based on most of Grant’s record.
Although Dr. Wagner’s opinion postdated Dr. Lester’s opinion,
the ALJ found that opinion to be entitled to little weight.
A
state agency psychologist’s opinion based on a review of an
incomplete record may still constitute substantial evidence as
long as the more recent evidence does not show “a sustained (and
material) worsening in Plaintiff’s condition.”
Phan v. Colvin,
2014 WL 5847557, at *15 (D.R.I. Nov. 12, 2014).
Grant has not
shown that Dr. Wagner’s opinion constitutes evidence of a
worsening in her condition.
Therefore, the ALJ properly assessed the medical evidence.
B.
SSR 11-2p Guidelines
Grant contends that the ALJ erred by not following the
guidelines provided by SSR 11-2p for evaluating disability in
young adults.
Grant argues that the ALJ did not consider her
Individualized Education Plan (“IEP”) or her limitations as
provided in her school records as required by SSR 11-2p.
Specifically, Grant faults the ALJ for failing to consider that
she graduated from high school with accommodations and based on
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expectations that were lower than those for a student without
impairments.
SSR 11-2p directs an ALJ to use the same definition of
disability for young adults that is used for older adults and to
consider information from medical sources, non-medical sources,
and school programs.
Contrary to Grant’s view of the ALJ’s
decision, he did consider Grant’s special education background
and her school records.
The ALJ stated that Grant’s history and
educational records showed a “longstanding history for early
developmental delays in speech and language, cognitive deficits
in her ability to read, write, and spell, and behavioral
characteristics consistent with a diagnoses [sic] for attentiondeficit hyperactivity disorder.”
Because of those delays,
deficits, and behavior, Grant “received assistance through
special needs classes and her academic progress was monitored
through an individualized education plan.”
Grant asserts that the ALJ failed to consider the
“extensive academic accommodations” she received during high
school.
The accommodations she cites are that she had help in
class from “facilitators” who read directions to her, she was
not penalized for spelling errors, she was given extra time for
extensive reading requirements, she received study guides, and
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she was given biweekly progress reports.
Grant also notes her
low grades in high school.
The ALJ stated that Grant’s records showed “ongoing special
education classes, further behavioral testing, and the continued
use of an individualized education plan and special education
resources.”
After noting Grant’s use of an IEP and special
education resources through high school, the ALJ noted that
Grant graduated from high school with a 2.4 grade point average.
The ALJ also stated that Grant was taking classes in the evening
toward a cosmetology certificate, while she was caring for her
twenty-month old son.
Although Grant argues that the ALJ put
too much weight on her graduation from high school, when she
required special education assistance, she does not show that
she graduated from high school based on significantly lower
criteria than other graduates so that her graduation should not
be considered as part of her educational background.
SSR 11-2p “provides guidance as to what types of evidence
the ALJ should consider in cases involving young adults; it does
not mandate a finding of disability merely because such records
exist and/or demonstrate limitations.”
McCarl v. Colvin, 2015
WL 540067, at *4 (W.D. Pa. Feb. 10, 2015).
Under the
circumstances, the ALJ could interpret Grant’s graduation
positively as evidence of her ability, despite her impairments.
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See Eissfeld v. Comm’r of Social Security, 2014 WL 1874073, at
*4 (D. Or. May 8, 2014).
In addition, the ALJ noted other
evidence that showed Grant’s ability to function.
C.
Reliance on the Grid
At the fifth step of the sequential analysis under 20
C.F.R. § 416.920, the Acting Commissioner bears the burden of
proving that the claimant is employable.
947 F.2d 990, 995 (1st Cir. 1991).
Heggarty v. Sullivan,
That burden may be satisfied
by using the Grid as long as the claimant’s non-exertional
impairments do not significantly erode the occupational base at
the identified exertional level.
Nguyen, 172 F.3d at 36; Ortiz
v. Sec’y of Health & Human Servs., 890 F.2d 520, 524 (1st Cir.
1989).
When the ALJ identifies non-exertional impairments, the
ALJ may need the assistance of a vocational expert to determine
whether those impairments significantly erode the occupational
base.
Nguyen, 172 F.3d at 36.
Grant argues that the ALJ erred by relying on the Grid to
find that she was not disabled.
II and XVI:
She asserts, relying on Titles
Capability to Do Other Work--the Medical-Vocational
Rules as a Framework for Evaluating Solely Nonexertional
Impairments, (“SSR 85-15”) 1985 WL 56857, that the ALJ’s finding
that she can adapt to occasional routine changes in the
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workplace precludes use of the Grid in her case.
In support,
Grant cites a passage from SSR 85-15 which states that the
demands of “remunerative, unskilled work” include the abilities,
among other things, “to deal with changes in a routine work
setting” and that “[a] substantial loss of ability to meet” the
listed work activities “would severely limit the potential
occupational base.”
Under SSR 85-15, only “a substantial loss” of the ability
to deal with changes in a routine work setting would severely
limit the potential occupational base so as to preclude use of
the Grid.
See also Ortiz, 890 F.2d at 524.
Grant cites no
authority to show that a limitation to “occasional routine
changes in the workplace” would constitute a substantial loss of
the ability to deal with change.
As the Acting Commissioner
points out, in Swormstedt v. Colvin, 2014 WL 1513347, at *6 (D.
Me. Apr. 16, 2014), the court concluded that a limitation to
“adapting to occasional changes in the workplace,” along with
other limitations, would have “no more than a negligible effect
on the unskilled occupational base” and did not preclude use of
the Grid.
See also Shedd v. Colvin, 2015 WL 347825, at *7 (D.
Me. Jan.26, 2015); Buschie v. Astrue, 2012 WL 463443, at *5
(N.D.N.Y. Feb. 13, 2012).
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A vocational expert was available to testify at the hearing
before the ALJ but was not asked to do so.
Generally, it would
be better practice for the ALJ to ask the vocational expert
whether the claimant’s nonexertional limitations significantly
erode the occupational base.
See, e.g., Miller v. Colvin, 2014
WL 4181472, at *6 (S.D. W.Va. Aug. 20, 2014).
In this case,
however, Grant has not shown that the ALJ improperly relied on
the Grid.
Conclusion
For the foregoing reasons, the applicant’s motion to
reverse and remand (document no. 8) is denied.
The Acting Commissioner’s motion to affirm (document no. 9)
is granted.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
March 23, 2015
cc: Laurie Alice Smith, Esq.
D. Lnce Tillinghast, Esq.
Robert J. Rabuck, Esq.
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