Scott M v. Kijakazi

Filing 13

REPORT AND RECOMMENDATIONS re 10 MOTION to Remand the Decision of the Commissioner filed by Scott Monta. 11 MOTION to Affirm the Decision of the Commissioner filed by Kilolo Kijakazi. Objections to R&R due by 9/29/20 22.., I recommend that Plaintiff's Motion to Reverse (ECF No. 10) be DENIED and that the Commissioner's Motion for an Order Affirming (ECF No. 11) be GRANTED. I further recommend that Final Judgment enter in favor of Defendant. So Ordered by Magistrate Judge Lincoln D. Almond on 9/15/2022. (Saucier, Martha)

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UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
SCOTT M.
v.
KILOLO KIJAKAZI, Commissioner
Social Security Administration

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C.A. No. 22-00080-JJM

REPORT AND RECOMMENDATION
Lincoln D. Almond, United States Magistrate Judge
This matter is before the Court for judicial review of a final decision of the Commissioner
of the Social Security Administration (“Commissioner”) denying Supplemental Security Income
(“SSI”) and Disability Insurance Benefits (“DIB”) under the Social Security Act (the “Act”), 42
U.S.C. § 405(g). Plaintiff filed his Complaint on February 17, 2022, seeking to reverse the
Decision of the Commissioner. On July 11, 2022, Plaintiff filed a Motion to Reverse the Decision
of the Commissioner. (ECF No. 10). On August 2, 2022, Defendant filed a Motion for an Order
Affirming the Decision of the Commissioner. (ECF No. 11). A Reply was filed on August 16,
2022. (ECF No. 12).
This matter has been referred to me for preliminary review, findings, and recommended
disposition. 28 U.S.C. § 636(b)(1)(B); LR Cv 72. Based upon my review of the record, the parties’
submissions, and independent research, I find that there is substantial evidence in this record to
support the Commissioner’s decision and findings that Plaintiff is not disabled within the meaning
of the Act. Consequently, I recommend that Plaintiff’s Motion to Reverse (ECF No. 10) be
DENIED and that the Commissioner’s Motion for an Order Affirming (ECF No. 11) be
GRANTED.

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I.

PROCEDURAL HISTORY

Plaintiff filed an application for DIB on March 26, 2020 (Tr. 175-176) and for SSI on April
6, 2020 (Tr. 177-185) alleging disability since July 7, 2009. The applications were denied initially
on April 17, 2020 (Tr. 58-66, 67-75) and on reconsideration on July 9, 2020. (Tr. 78-86, 87-95).
Plaintiff requested an Administrative Hearing. On January 22, 2021, a hearing was held before
Administrative Law Judge Kevin Kenneally (the “ALJ”) at which time Plaintiff, represented by
counsel, and a Vocational Expert (“VE”) appeared and testified. (Tr. 36-55). The ALJ issued an
unfavorable decision to Plaintiff on February 9, 2021. (Tr. 15-30). The Appeals Council denied
Plaintiff’s request for review on September 2, 2021. (Tr. 7-9). Therefore, the ALJ’s decision
became final. A timely appeal was then filed with this Court.
II.

THE PARTIES’ POSITIONS

Plaintiff primarily contends that the ALJ erred at Step 3 in finding that he did not meet any
of the Section 12.00 Listings.
The Commissioner disputes Plaintiff’s claims and argues that the ALJ properly evaluated
the applicable Listings and committed no reversible error.
III.

THE STANDARD OF REVIEW

The Commissioner’s findings of fact are conclusive if supported by substantial evidence.
42 U.S.C. § 405(g). Substantial evidence is more than a scintilla – i.e., the evidence must do more
than merely create a suspicion of the existence of a fact and must include such relevant evidence
as a reasonable person would accept as adequate to support the conclusion. Ortiz v. Sec’y of HHS,
955 F.2d 765, 769 (1st Cir. 1991) (per curiam); Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st
Cir. 1981).

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Where the Commissioner’s decision is supported by substantial evidence, the court must
affirm, even if the court would have reached a contrary result as finder of fact. Rodriguez Pagan
v. Sec’y of HHS, 819 F.2d 1, 3 (1st Cir. 1987); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir.
1991). The court must view the evidence as a whole, taking into account evidence favorable as
well as unfavorable to the decision. Frustaglia v. Sec’y of HHS, 829 F.2d 192, 195 (1st Cir. 1987);
Parker v. Bowen, 793 F.2d 1177 (11th Cir. 1986) (court also must consider evidence detracting
from evidence on which Commissioner relied).
The court must reverse the ALJ’s decision on plenary review, however, if the ALJ applies
incorrect law, or if the ALJ fails to provide the court with sufficient reasoning to determine that
he or she properly applied the law. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam);
accord Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). Remand is unnecessary where
all of the essential evidence was before the Appeals Council when it denied review, and the
evidence establishes without any doubt that the claimant was disabled. Seavey v. Barnhart, 276
F.3d 1, 11 (1st Cir. 2001) citing, Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985).
The court may remand a case to the Commissioner for a rehearing under sentence four of
42 U.S.C. § 405(g); under sentence six of 42 U.S.C. § 405(g); or under both sentences. Seavey,
276 F.3d at 8. To remand under sentence four, the court must either find that the Commissioner’s
decision is not supported by substantial evidence, or that the Commissioner incorrectly applied the
law relevant to the disability claim. Id.; accord Brenem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980)
(remand appropriate where record was insufficient to affirm, but also was insufficient for district
court to find claimant disabled).
Where the court cannot discern the basis for the Commissioner’s decision, a sentence-four
remand may be appropriate to allow her to explain the basis for her decision. Freeman v. Barnhart,

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274 F.3d 606, 609-610 (1st Cir. 2001). On remand under sentence four, the ALJ should review the
case on a complete record, including any new material evidence. Diorio v. Heckler, 721 F.2d
726, 729 (11th Cir. 1983) (necessary for ALJ on remand to consider psychiatric report tendered to
Appeals Council). After a sentence four remand, the court enters a final and appealable judgment
immediately, and thus loses jurisdiction. Freeman, 274 F.3d at 610.
In contrast, sentence six of 42 U.S.C. § 405(g) provides:
The court...may at any time order additional evidence to be taken
before the Commissioner of Social Security, but only upon a
showing that there is new evidence which is material and that there
is good cause for the failure to incorporate such evidence into the
record in a prior proceeding;
42 U.S.C. § 405(g). To remand under sentence six, the claimant must establish: (1) that there is
new, non-cumulative evidence; (2) that the evidence is material, relevant and probative so that
there is a reasonable possibility that it would change the administrative result; and (3) there is good
cause for failure to submit the evidence at the administrative level. See Jackson v. Chater, 99 F.3d
1086, 1090-1092 (11th Cir. 1996).
A sentence six remand may be warranted, even in the absence of an error by the
Commissioner, if new, material evidence becomes available to the claimant. Id. With a sentence
six remand, the parties must return to the court after remand to file modified findings of fact. Id.
The court retains jurisdiction pending remand and does not enter a final judgment until after the
completion of remand proceedings. Id.
The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1); 20 C.F.R. § 404.1505. The impairment must be severe,

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making the claimant unable to do her previous work, or any other substantial gainful activity which
exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.
A.

Opinion Evidence

For applications like this one, filed on or after March 27, 2017, the Administration has
fundamentally changed how adjudicators assess opinion evidence.

The requirements that

adjudicators assign “controlling weight” to a well-supported treating source’s medical opinion that
is consistent with other evidence, and, if controlling weight is not given, must state the specific
weight that is assigned – are gone. See Shaw v. Saul, No. 19-cv-730-LM, 2020 WL 3072072, *45 (D.N.H. June 10, 2020) citing Nicole C. v. Saul, Case No. cv 19-127JJM, 2020 WL 57727, at
*4 (D.R.I. Jan. 6, 2020) (citing 20 C.F.R. § 404.1520c(a)). Under the newly applicable regulations,
an ALJ does not assign specific evidentiary weight to any medical opinion and does not defer to
the opinion of any medical source (including the claimant’s treating providers). 20 C.F.R. §§
404.1520c(a), 416.920c(a). Instead, the ALJ evaluates the relative persuasiveness of the medical
evidence in terms of five specified factors. Id.
The five factors the ALJ considers in evaluating the persuasiveness of a medical opinion
are supportability (the relevance of the opinion’s cited objective medical evidence), consistency
(how consistent the opinion is with all of the evidence from medical and non-medical sources),
treatment/examining relationship (including length of treatment relationship, frequency of
examinations, purpose of treatment relationship, and existence and extent of treatment/examining
relationship), specialization (the relevance of the source’s specialized education or training to the
claimant’s condition), and what the Administration refers to as “other factors” (the medical
source’s familiarity with the claimant’s medical record as a whole and/or with the Administration’s
policies or evidentiary requirements). Shaw, 2020 WL 3072072 at *4 citing 20 C.F.R. §§

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404.1520c(c)(1)-(5), 416.920c(c)(1)-(5) (emphasis supplied). Of the five factors, the “most
important” are supportability and consistency. Id. §§ 404.1520c(a), 404.1520c(b)(2), 416.920c(a),
416.920c(b)(2).
While the ALJ must consider all five of the factors in evaluating the persuasiveness of
medical evidence, when preparing the written decision, the ALJ is, in most cases, only required to
discuss application of the supportability and consistency factors.

Id. §§ 404.1520c(b)(2),

416.920c(b)(2). Only where contrary medical opinions are equally persuasive in terms of both
supportability and consistency is the ALJ required to discuss their relative persuasiveness in terms
of the treatment/examining relationship, specialization, and other factors. Id. §§ 404.1520c(b)(3),
416.920c(b)(3). In addition, where a single medical source offers multiple opinions, the ALJ is
not required to discuss each opinion individually, but instead may address all of the source’s
opinions “together in a single analysis.” Id. §§ 404.1520c(b)(1), 416.920c(b)(1).
Moreover, while the ALJ must consider all of the relevant evidence in the record, Id. §§
404.1520b(a)-(b), 416.920b(a)-(b), the ALJ need not discuss evidence from nonmedical sources,
including, e.g., the claimant, the claimant’s friends and family, educational personnel, and social
welfare agency personnel. Id. §§ 404.1502(e), 404.1520c(d), 416.902(j), 416.920c(d). And while
the regulations require the ALJ to discuss the relative persuasiveness of all medical source
evidence, Id. §§ 404.1520c(b), 416.920c(b), the claimant’s impairments must be established
specifically by evidence from an acceptable medical source, Id. §§ 404.1521, 416.921.
“Acceptable medical sources” are limited to physicians and psychologists, and (within
their areas of specialization or practice) to optometrists, podiatrists, audiologists, advanced
practice registered nurses, physician assistants, and speech pathologists. Id. §§ 404.1502(a),
416.902(a).

Evidence from other medical sources, such as licensed social workers or

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chiropractors, is insufficient to establish the existence or severity of a claimant’s impairments. Id.
Finally, the ALJ need not discuss evidence that is “inherently neither valuable nor persuasive,”
including decisions by other governmental agencies or nongovernmental entities, findings made
by state disability examiners at any previous level of adjudication, and statements by medical
sources as to any issue reserved to the Commissioner. Id. §§ 404.1520b(c), 416.920b(c).
B.

Developing the Record

The ALJ has a duty to fully and fairly develop the record. Heggarty v. Sullivan, 947 F.2d
990, 997 (1st Cir. 1991). The Commissioner also has a duty to notify a claimant of the statutory
right to retained counsel at the social security hearing, and to solicit a knowing and voluntary
waiver of that right if counsel is not retained. See 42 U.S.C. § 406; Evangelista v. Sec’y of HHS,
826 F.2d 136, 142 (1st Cir. 1987). The obligation to fully and fairly develop the record exists if a
claimant has waived the right to retained counsel, and even if the claimant is represented by
counsel. Id. However, where an unrepresented claimant has not waived the right to retained
counsel, the ALJ’s obligation to develop a full and fair record rises to a special duty. See Heggarty,
947 F.2d at 997, citing Currier v. Sec’y of Health Educ. and Welfare, 612 F.2d 594, 598 (1st Cir.
1980).
C.

Medical Tests and Examinations

The ALJ is required to order additional medical tests and exams only when a claimant’s
medical sources do not give sufficient medical evidence about an impairment to determine whether
the claimant is disabled. 20 C.F.R. § 416.917; see also Conley v. Bowen, 781 F.2d 143, 146 (8th
Cir. 1986). In fulfilling his duty to conduct a full and fair inquiry, the ALJ is not required to order
a consultative examination unless the record establishes that such an examination is necessary to

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enable the ALJ to render an informed decision. Carrillo Marin v. Sec’y of HHS, 758 F.2d 14, 17
(1st Cir. 1985).
D.

The Five-step Evaluation

The ALJ must follow five steps in evaluating a claim of disability. See 20 C.F.R. §§
404.1520, 416.920. First, if a claimant is working at a substantial gainful activity, she is not
disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant does not have any impairment or
combination of impairments which significantly limit her physical or mental ability to do basic
work activities, then she does not have a severe impairment and is not disabled. 20 C.F.R. §
404.1520(c). Third, if a claimant’s impairments meet or equal an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1, she is disabled. 20 C.F.R. § 404.1520(d). Fourth, if a claimant’s
impairments do not prevent her from doing past relevant work, she is not disabled. 20 C.F.R. §
404.1520(e). Fifth, if a claimant’s impairments (considering her residual functional capacity, age,
education, and past work) prevent her from doing other work that exists in the national economy,
then she is disabled. 20 C.F.R. § 404.1520(f). Significantly, the claimant bears the burden of
proof at steps one through four, but the Commissioner bears the burden at step five. Wells v.
Barnhart, 267 F. Supp. 2d 138, 144 (D. Mass. 2003) (five-step process applies to both SSDI and
SSI claims).
In determining whether a claimant’s physical and mental impairments are sufficiently
severe, the ALJ must consider the combined effect of all of the claimant’s impairments and must
consider any medically severe combination of impairments throughout the disability determination
process. 42 U.S.C. § 423(d)(2)(B). Accordingly, the ALJ must make specific and well-articulated
findings as to the effect of a combination of impairments when determining whether an individual
is disabled. Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993).

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The claimant bears the ultimate burden of proving the existence of a disability as defined
by the Social Security Act. Seavey, 276 F.3d at 5. The claimant must prove disability on or before
the last day of her insured status for the purposes of disability benefits. Deblois v. Sec’y of HHS,
686 F.2d 76 (1st Cir. 1982), 42 U.S.C. §§ 416(i)(3), 423(a), (c). If a claimant becomes disabled
after she has lost insured status, her claim for disability benefits must be denied despite her
disability. Id.
E.

Other Work

Once the ALJ finds that a claimant cannot return to her prior work, the burden of proof
shifts to the Commissioner to establish that the claimant could perform other work that exists in
the national economy. Seavey, 276 F.3d at 5. In determining whether the Commissioner has met
this burden, the ALJ must develop a full record regarding the vocational opportunities available to
a claimant. Allen v. Sullivan, 880 F.2d 1200, 1201 (11th Cir. 1989). This burden may sometimes
be met through exclusive reliance on the Medical-Vocational Guidelines (the “grids”). Seavey,
276 F.3d at 5. Exclusive reliance on the “grids” is appropriate where the claimant suffers primarily
from an exertional impairment, without significant non-exertional factors. Id.; see also Heckler v.
Campbell, 461 U.S. 458 (1983) (exclusive reliance on the grids is appropriate in cases involving
only exertional impairments, impairments which place limits on an individual’s ability to meet job
strength requirements).
Exclusive reliance is not appropriate when a claimant is unable to perform a full range of
work at a given residual functional level or when a claimant has a non-exertional impairment that
significantly limits basic work skills. Nguyen, 172 F.3d at 36. In almost all of such cases, the
Commissioner’s burden can be met only through the use of a vocational expert. Heggarty, 947
F.2d at 996. It is only when the claimant can clearly do unlimited types of work at a given residual

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functional level that it is unnecessary to call a vocational expert to establish whether the claimant
can perform work which exists in the national economy. See Ferguson v. Schweiker, 641 F.2d
243, 248 (5th Cir. 1981). In any event, the ALJ must make a specific finding as to whether the
non-exertional limitations are severe enough to preclude a wide range of employment at the given
work capacity level indicated by the exertional limitations.
1.

Pain

“Pain can constitute a significant non-exertional impairment.” Nguyen, 172 F.3d at 36.
Congress has determined that a claimant will not be considered disabled unless he furnishes
medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of
a medical impairment which could reasonably be expected to produce the pain or symptoms
alleged. 42 U.S.C. § 423(d)(5)(A). The ALJ must consider all of a claimant’s statements about
his symptoms, including pain, and determine the extent to which the symptoms can reasonably be
accepted as consistent with the objective medical evidence. SSR 16-3p, 2017 WL 4790249, at
*49462; 20 C.F.R. § 404.1529(c)(3). In determining whether the medical signs and laboratory
findings show medical impairments which reasonably could be expected to produce the pain
alleged, the ALJ must apply the First Circuit’s six-part pain analysis and consider the following
factors:
(1)
The nature, location, onset, duration, frequency, radiation,
and intensity of any pain;
(2)
Precipitating and aggravating factors (e.g., movement,
activity, environmental conditions);
(3)
Type, dosage, effectiveness, and adverse side-effects of any
pain medication;
(4)

Treatment, other than medication, for relief of pain;

(5)

Functional restrictions; and
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(6)

The claimant’s daily activities.

Avery v. Sec’y of HHS, 797 F.2d 19, 29 (1st Cir. 1986). An individual’s statement as to pain is
not, by itself, conclusive of disability. 42 U.S.C. § 423(d)(5)(A). However, the individual’s
statements about the intensity, persistence, and limited effects of symptoms may not be
disregarded “solely because the objective medical evidence does not substantiate the degree of
impairment-related symptoms.” SSR 16-3p, 2017 WL 4790249, at *49465.
2.

Credibility

Where an ALJ decides not to credit a claimant’s testimony about pain, the ALJ must
articulate specific and adequate reasons for doing so, or the record must be obvious as to the
credibility finding. Rohrberg, 26 F. Supp. 2d at 309. A reviewing court will not disturb a clearly
articulated credibility finding with substantial supporting evidence in the record. See Frustaglia,
829 F.2d at 195. The failure to articulate the reasons for discrediting subjective pain testimony
requires that the testimony be accepted as true. See DaRosa v. Sec’y of Health and Human Servs.,
803 F.2d 24 (1st Cir. 1986).
A lack of a sufficiently explicit credibility finding becomes a ground for remand when
credibility is critical to the outcome of the case. See Smallwood v. Schweiker, 681 F.2d 1349,
1352 (11th Cir. 1982). If proof of disability is based on subjective evidence and a credibility
determination is, therefore, critical to the decision, “the ALJ must either explicitly discredit such
testimony or the implication must be so clear as to amount to a specific credibility finding.” Foote
v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995) (quoting Tieniber v. Heckler, 720 F.2d 1251, 1255
(11th Cir. 1983)). Guidance in evaluating the claimant’s statements regarding the intensity,
persistence, and limiting effects of subjective symptoms is provided by SSR 16-3p, 2017 WL
4790249, at *49462 (Oct. 25, 2017). It directs the ALJ to consider the entire case record, including

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the objective medical evidence; an individual’s statements about the intensity, persistence, and
limiting effects of symptoms; statements and other information provided by medical sources and
other persons; any other relevant evidence; and whether statements about the intensity, persistence,
and limiting effects of symptoms are consistent with the medical signs and laboratory findings.
SSR 16-3p, 2017 WL 4790249, at *49465. 
V.

APPLICATION AND ANALYSIS

A.

The ALJ’s Decision

The ALJ decided this case adverse to Plaintiff at Step 5. At Step 2, the ALJ found that
Plaintiff’s bipolar disorder, ADHD, PTSD, cannabis use disorder, and migraines were “severe”
impairments. (Tr. 21). The ALJ concluded at Step 3 that Plaintiff did not meet any of the
applicable Listings. (Tr. 21-22). However, he did find that Plaintiff was markedly limited in his
ability to interact with others but only moderately limited in the other areas of mental functioning.
(Tr. 22-23). As to RFC, the ALJ concluded that Plaintiff could perform a full range of work
exertionally but was otherwise limited to simple routine tasks and subject to significant restrictions
on the ability to interact with the public, co-workers and supervisors. (Tr. 24). At Step 4, the ALJ
found that Plaintiff had no past relevant work. (Tr. 28). Finally, at Step 5, the ALJ determined
that Plaintiff was not disabled because his RFC did not prevent him from performing certain
unskilled jobs available in the economy. (Tr. 29).
B.

The ALJ Properly Evaluated the Adapting and Managing Oneself Domain of

the Mental Health Listings
At Step 3, the ALJ must determine if a claimant is disabled because he or she has an
impairment that meets or equals a Listing. 20 C.F.R. § 404.1520(a)(4)(iii). The Listings identify
impairments that are considered “severe enough to prevent an individual from doing any gainful

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activity.” 20 C.F.R. § 404.1525(a). Each of these listed impairments specifies the “objective
medical and other findings needed to satisfy the criteria of that listing.”

20 C.F.R. §

404.1525(c)(3). To meet a listed impairment, the claimant must show that his impairment satisfies
all those criteria. Id.; see also Torres v. Sec’y of Health and Human Servs, 870 F.2d 742, 745 (1st
Cir. 1989) (“it is the claimant’s burden to show that he has an impairment or impairments which
meets or equals a listed impairment”).
Plaintiff challenges the ALJ’s findings on mental health listings 12.04, 12.11 and 12.15,
particularly the finding that he had only a moderate limitation in the adapting and managing oneself
domain. (ECF No. 10 at pp. 8-10). These Listings require an “extreme limitation of one, or a
marked limitation of two, of the following areas of mental functioning: [1] understand, remember
or apply information; [2] interact with others; [3] concentrate, persist, or maintain pace; and [4]
adapt or manage oneself.” 20 C.F.R. Pt. 404, Supt. P, App’x 1 §§ 12.04(B), 12.11(B), 12.15(B).
Here, the ALJ found that Plaintiff’s impairments did not meet these requirements because he had
only one marked limitation (in the interacting with others domain) and otherwise no more than
moderate limitations, including a moderate limitation in the adapting and managing oneself
domain. (Tr. 22-24).
Plaintiff argues that the ALJ applied the wrong standard when evaluating the adapting and
managing oneself domain because he considered evidence of his daily functioning outside of a
work environment. (ECF No. 10 at pp. 8-10). Plaintiff’s argument is not persuasive.
First, the record contains no medical source opining that Plaintiff’s impairments meet or
equal Listings 12.04, 12.11 or 12.15. Rather, the only medical sources that considered the issue
are the state agency psychologists, and they found that the Listings were not satisfied. (Tr. 61-62,
81-82). Their findings included the same moderate limitation in the adapting and managing

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oneself domain that the ALJ assessed and thus constitute substantial evidence supporting the ALJ’s
finding. See Arrington v. Berryhill, No. 17-1047, 2018 WL 818044, at *1 (1st Cir. Feb. 5, 2018)
(unpublished) (“the ALJ explained that no physician had reported findings sufficient to satisfy the
Listings’ criteria, and that the state consultants had not found any Listing satisfied”). Ultimately,
it was Plaintiff who bore the burden of showing that his impairments met or equaled a Listing, and
the ALJ reasonably found that Plaintiff did not meet that burden. See Torres, 870 F.2d at 745.
Second, the record and the ALJ’s decision show that he appropriately evaluated the
adapting and managing oneself domain of Listings 12.04, 12.11 and 12.15. In addition to relying
on the uncontradicted findings of the state agency psychologists, (Tr. 28 (concluding that their
findings were “persuasive”)), 20 C.F.R. § 404.1513a(b)(1), the ALJ considered the following
factors in determining that Plaintiff had only a moderate limitation adapting and managing himself:
• The fact that Plaintiff’s “condition was largely stable with medication and
psychotherapy” (Tr. 23; supported at, e.g., Tr. 393, 397, 470, 502, 524-525, 677,
733);
• Plaintiff’s ability to “handle [the] mental demands [of] living by [himself] and
other activities of daily living, such as driving a car and a motorcycle, shopping,
preparing complete meals, travelling out of state, helping his son with schoolwork,
and caring for his son and his brother” (Tr. 23; supported at Tr. 266-269, 470, 514,
666);
• The “general lack of evidence [in the record] that would indicate that the claimant
has trouble understanding the difference between acceptable and unacceptable
behavior or that the claimant does not understand the nature of hazards” (Tr. 23);
and,
• The absence of “signs of the need for inpatient psychiatric treatment.” Id.
Plaintiff claims that this evidence is not “indicative” of his ability to function “in a work
environment,” so it cannot legally support the ALJ’s finding on the adapting and managing oneself
domain. (ECF No. 10 at p. 9). The Commissioner persuasively argues that Plaintiff is wrong on
this point. She relies on the revised regulations for evaluating mental impairments which provide

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that the Administration will “use all the information available [ ] about how a person functions,
including how the person manages him- or herself from day-to-day at home and in the community”
to determine if a claimant is “able to work (and, therefore, function in the workplace).” Revised
Medical Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66138, 66145 (Sept. 26, 2016).
Thus, Plaintiff has not shown that the ALJ considered the wrong type of evidence when he
evaluated Plaintiff’s ability to adapt and manage himself. Also, the ALJ did not “misstate the
definition of ‘adapting and managing oneself’” as argued by Plaintiff. (ECF No. 10 at p. 9).
Plaintiff concedes that there is no requirement that the ALJ quote definitions verbatim from the
regulations, (ECF No. 12 at p. 3), and the ALJ here relied on appropriate evidence, including the
uncontradicted findings of the state agency psychologists, to assess the adapt and manage oneself
domain. On this record, the ALJ’s use of the words “acceptable and unacceptable behavior” rather
than “acceptable and unacceptable work performance” is neither outcome determinative nor
harmful error. Again, substantial evidence here supports the ALJ’s finding of a moderate
limitation in the adapting and managing oneself domain, and Plaintiff has not shown any error in
this finding or the ALJ’s Step 3 analysis.
C.

Plaintiff’s Secondary Arguments Also Do Not Support a Remand

Plaintiff also argues that the ALJ erred by treating his grandmother’s function report as a
medical opinion, and by improperly assessing the credibility of his subjective complaints. Neither
argument is well supported or persuasive. First, as to the function report (Exh. 6E), the ALJ simply
did not treat it as a medical opinion. He clearly identifies it as a third-party statement from the
grandmother and accurately noted that she was not a medical professional or involved in Plaintiff’s
medical care. (Tr. 28). Second, as to Plaintiff’s statements, the ALJ properly evaluated them in

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Case 1:22-cv-00080-JJM-LDA Document 13 Filed 09/15/22 Page 16 of 16 PageID #: 905

the context of this record and made findings adequately supported by the record. Plaintiff has
provided no basis for this Court to disturb those findings.
CONCLUSION
For the reasons discussed herein, I recommend that Plaintiff’s Motion to Reverse (ECF No.
10) be DENIED and that the Commissioner’s Motion for an Order Affirming (ECF No. 11) be
GRANTED. I further recommend that Final Judgment enter in favor of Defendant.
Any objection to this Report and Recommendation must be specific and must be filed with
the Clerk of the Court within fourteen days of its receipt. See Fed. R. Civ. P. 72(b); LR Cv 72.
Failure to file specific objections in a timely manner constitutes waiver of the right to review by
the District Court and the right to appeal the District Court’s decision. See United States v.
Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, In. v. Ford Motor Co., 616 F.2d
603, 605 (1st Cir. 1980).

/s/ Lincoln D. Almond
LINCOLN D. ALMOND
United States Magistrate Judge
September 15, 2022

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