JOHN H. RICH, III, Magistrate Judge.
This Child's Disability Benefits ("CDB") and Supplemental Security Income ("SSI") appeal raises the question of whether the administrative law judge supportably found the plaintiff capable of performing work existing in significant numbers in the national economy.
Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. §§ 404.1520, 416.920; Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the administrative law judge found, in relevant part, that the plaintiff had not attained age 22 as of January 1, 2003, his alleged onset date of disability, Finding 1, Record at 17; that he had severe impairments of depression, attention deficit hyperactivity disorder, post-traumatic stress disorder, conduct disorder, and polysubstance abuse in early remission, Finding 3, id.; that he retained the RFC to perform a full range of work at all exertional levels but with the following nonexertional limitations: he could understand, remember, and carry out simple one- to six-step instructions and persist at that level of complexity for eight hours a day, five days a week, would need to avoid work with the general public, could have occasional contact with supervisors and co-workers for non-collaborative work, and would require jobs that involved no more than occasional decisionmaking and occasional changes in the work setting, Finding 5, id. at 19; that, considering his age (a younger individual, born on July 31, 1989), education (at least high school), work experience (no past relevant work), and RFC, there were jobs existing in significant numbers in the national economy that he could perform, Findings 7-10, id. at 21; and that he, therefore, was not disabled from January 1, 2003, his alleged onset date of disability, through the date of the decision, February 15, 2012, Finding 11, id. at 22. The Appeals Council declined to review the decision, id. at 1-3, making the decision the final determination of the commissioner, 20 C.F.R. §§ 404.981, 416.1481; Dupuis v. Secretary of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).
The standard of review of the commissioner's decision is whether the determination made is supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Manso-Pizarro v. Secretary of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
The administrative law judge reached Step 5 of the sequential evaluation process, at which stage the burden of proof shifts to the commissioner to show that a claimant can perform work other than his past relevant work. 20 C.F.R. §§ 404.1520(g), 416.920(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the commissioner's findings regarding the plaintiff's RFC to perform such other work. Rosado v. Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).
The record contained two expert mental RFC opinions, those of nonexamining agency consultants David R. Houston, Ph.D., dated October 8, 2009, and Brian Stahl, Ph.D., dated April 5, 2010. See Record at 330-42, 408-20. Both Drs. Houston and Stahl deemed the plaintiff's mental impairments nonsevere, causing only mild restrictions in activities of daily living, maintaining social functioning, and maintaining concentration, persistence, or pace, with either no episodes of decompensation or insufficient evidence of such episodes. See id. at 330, 340, 408, 418. The administrative law judge gave those opinions "[l]ittle weight[,] . . . as the medical evidence establishes that the [plaintiff's] work capacity is somewhat limited by psychological symptoms." Id. at 21. She found that, with or without the effects of substance abuse, the plaintiff had mild restriction in activities of daily living, moderate difficulties in social functioning, and moderate difficulties in concentration, persistence, or pace, and had experienced one to two episodes of decompensation. See id. at 18. She explained, in relevant part:
Id. (citations omitted).
The administrative law judge then went on to make the mental RFC finding that the plaintiff challenges. See id. at 19-21. In that context, she discussed at some length why she discredited the plaintiff's claim of a disabling level of symptoms. See id. at 20. However, she did not explain how or why she assessed the specific restrictions set forth in her RFC determination. See id. at 19-21.
The plaintiff correctly observes that, in so doing, the administrative law judge exceeded the bounds of her competence as a layperson. See Statement of Errors at 3; see also, e.g., Gordils v. Secretary of Health & Human Servs., 921 F.2d 327, 329 (1st Cir. 1990) (Although an administrative law judge is not precluded from "rendering common-sense judgments about functional capacity based on medical findings," she "is not qualified to assess residual functional capacity based on a bare medical record.").
Yet, in response, the commissioner correctly notes that this court has held such errors harmless when an RFC finding is more favorable to a claimant than the medical evidence supports. See Defendant's Opposition to Plaintiff's Statement of Errors ("Opposition") (ECF No. 14) at 2-5; see also, e.g., Gonsalves v. Astrue, Civil No. 09-181-BW, 2010 WL 1935753, at *6 (D. Me. May 10, 2010) (rec. dec., aff'd June 16, 2010) (in circumstances in which the only two expert opinions of record found no physical limitations, administrative law judge's error in assessing physical RFC without any analysis of the medical evidence supporting a limitation to light work could "only be read, given the state of the record, to be favorable to the [claimant], assigning him a more restricted residual physical capacity than, as the [claimant] himself points out, is justified by the medical evidence"); see also Gould v. Astrue, No. 2:11-cv-265-JAW, 2012 WL 1098471, at *4 (D. Me. Mar. 31, 2012) (rec. dec., aff'd Apr. 18, 2012) (in circumstances in which two agency nonexamining consultants found no severe mental impairment and claimant did not separately challenge the rejection of treating source's mental RFC opinion, administrative law judge's error in assessing mental RFC unsupported by expert opinion was harmless in that it was "more favorable than the record supports").
At oral argument, the plaintiff's counsel disputed that this is a case in which the RFC finding is more favorable than the medical evidence supports. He noted that records postdating the Houston and Stahl opinions contain Global Assessment of Functioning, or "GAF," scores in very low ranges.
Counsel for the commissioner rejoined, as had the commissioner in her opposing brief, that Drs. Houston and Stahl reviewed five years' worth of records, including some assessing GAF scores in the same low range, yet deemed the plaintiff's mental impairments nonsevere. See Opposition at 3 & n.1, 5 (taking the position that the content of medical records unreviewed by Drs. Stahl and Houston was not substantially different from those they did review). He pointed out that, in any event, a GAF score, standing alone, has limited significance. See also id. at 4-5; LaFontaine v. Astrue, No. 1:10-cv-527-JAW, 2011 WL 4459197, at *4 (D. Me. Sept. 25, 2011) (rec. dec., aff'd Oct. 13, 2011) ("A GAF score, standing alone, does not necessarily indicate an inability to work or to perform specific work-related functions.").
I agree with the commissioner that the 2011 GAF score to which the plaintiff points is cumulative of GAF scores reflected in materials that Drs. Houston and Stahl reviewed. For example, Dr. Stahl noted that the plaintiff was assigned a GAF score of 40 on August 3, 2009, see Record at 292, 420, and summarized a July 31, 2008, Crisis Assessment note that contains a GAF score of 41, see Record at 420, 480. In explaining that he deemed the plaintiff's mental impairments nonsevere, he noted, "Recent mental status notes indicate good functioning." Id. at 420. Petrini evidently did not perform a mental status examination; that portion of her intake assessment form is blank. See id. at 614-17. A mental status examination performed by Larry Sexton, PMHNP-BC, on November 17, 2011, was essentially normal. See id. at 602-04.
In the circumstances, the opinions of Drs. Houston and Stahl, the only medical expert opinions of record as to the severity of the plaintiff's mental impairments, remain substantial evidence that those impairments were nonsevere. See Brackett, 2010 WL 5467254, at *5 ("The teaching of the caselaw cited by both sides is that there is no bright-line test of when reliance on a nonexamining expert consultant is permissible in determining a claimant's physical or mental RFC. Factors to be considered include the completeness of the consultant's review of the full record and whether portions of the record unseen by the consultant reflect material change or are merely cumulative or consistent with the preexisting record and/or contain evidence supportably dismissed or minimized by the administrative law judge.") (citations omitted).
Accordingly, as in Gonsalves and Gould, the administrative law judge reached an RFC determination more favorable than the medical evidence supported, rendering her error in assessing a mental RFC from the raw medical evidence harmless.
The plaintiff next faults the administrative law judge for failing to reflect the moderate restriction that she found in concentration, persistence, or pace in her determination of his mental RFC. See Statement of Errors at 4-5. He argues that the assessed limitation to "simple" work with up to six-step instructions is internally inconsistent and, in any event, a limitation to unskilled work does not necessarily account for a moderate limitation in concentration, persistence, or pace. See id.
As the commissioner correctly notes, see Opposition at 5-6, the error in assessing an internally inconsistent limitation is rendered harmless by virtue of the administrative law judge's reliance, at step 5, on two jobs that qualify as "simple:" harvest worker/fruit, Dictionary of Occupational Titles (U.S. Dep't of Labor, 4th ed. rev. 1991) ("DOT") § 403.687-018, and garbage collector, DOT § 955.687-022, see Record at 21. Both jobs have a General Educational Development, or GED, reasoning level of 1, which requires workers to "[a]pply commonsense understanding to carry out simple one- or two-step instructions." DOT §§ 403.687-018, 955.687-022. See also Conley v. Astrue, No. 2:10-cv-303-DBH, 2011 WL 4571870, at *2-*3 (D. Me. Sept. 29, 2011) (rec. dec., aff'd Oct. 18, 2011) (error in deeming claimant limited to four-step instructions, rather than simple, repetitive tasks, harmless when vocational expert identified job with GED level of 1, which corresponds to simple tasks).
To the extent that that the plaintiff argues that the limitation is inappropriate because it is unsupported by expert opinion, see Statement of Errors at 4 (citing Conley, 2011 WL 4571870, at *4) (remanding case in the absence of medical support for translation of a moderate limitation on concentration, persistence, or pace to a limitation to four-step instructions), that is a variation on the theme of his first point of error. As counsel for the commissioner suggested at oral argument, it is harmless for the same reason: that the finding of severe mental impairments imposing certain restrictions is more favorable to the plaintiff than the medical evidence supports.
Finally, as the commissioner argues, see Opposition at 6-7, to the extent that the plaintiff cites Maldonado v. Astrue, Civil No. 08-412-B-W, 2009 WL 1885057, at *5-*6 (D. Me. June 30, 2009) (rec. dec., aff'd July 23, 2009), for the proposition that a moderate limitation in concentration can affect even unskilled work, see Statement of Errors at 5, Maldonado is distinguishable. "In Maldonado, the administrative law judge essentially equated unskilled jobs and a moderate limitation in concentration, persistence, and pace[.]" Davis v. Astrue, No. 1:10-cv-90-JAW, 2010 WL 5395048, at *3 (D. Me. Dec. 22, 2010) (rec. dec., aff'd Jan. 12, 2011). By contrast, in Davis, the administrative law judge limited the claimant to "unskilled, routine, repetitive tasks, and within this context she can maintain concentration, attention, focus, persistence and pace[.]" Id. at *3 (citation and internal quotation marks omitted). This court distinguished the Davis formulation from that at issue in Maldonado in that, instead of equating a moderate limitation in concentration, persistence, or pace with unskilled work, "the administrative law judge used the limitation to modify the universe of unskilled jobs." Id.
The commissioner correctly notes, see Opposition at 7, that, in this case, as in Davis, the administrative law judge did not merely equate a moderate limitation in concentration, persistence, or pace with unskilled work but, rather, modified the universe of unskilled work, limiting the plaintiff to understanding, remembering, and carrying out simple one- to six-step instructions and persisting at that level of complexity for eight hours a day, five days a week, see Finding 5, Record at 19.
The plaintiff, thus, falls short of demonstrating reversible error with respect to the assessment of limitations in concentration.
Finally, the administrative law judge found the plaintiff's allegations not credible to the extent inconsistent with the assessed RFC. See id. at 19-20. She explained that "[o]bservations of the [plaintiff's] mental status by treating and examining sources, as well as his own statements regarding his condition, are inconsistent with a finding that he is disabled from all work." Id. at 20. She provided numerous examples from treatment records spanning the period from November 2005 to November 2011, noting, for example, that in November 2005, a psychiatrist found no abnormalities in the plaintiff's speech, thought, or behavior, and the plaintiff described his mood as "fine," and in November 2011, the plaintiff reported that his medications were helpful and that he had a new girlfriend, his mental status was observed to be normal, and he said he was feeling well "overall." Id. (citations and internal quotation marks omitted).
She stated that "evidence that factors other than the [plaintiff's] impairments prevent him from obtaining employment also detracts from his allegation of disability." Id. She observed that 2009 and 2010 records reflected that the plaintiff had lost jobs or had difficulty obtaining them due to transportation problems, and that he noted in December 2009 that he was willing to work but that finding a job was a barrier to his employment. See id.
The plaintiff complains that the administrative law judge took isolated statements in his records out of context; for example, ignoring portions of the November 2005 report indicating that he would "need to be observed closely in the milieu during periods of stress, which appear to be the times that he obviously will harm himself[,]" his prognosis was guarded, and much depended on his ability to gain benefit from the structure, consistency, and predictability that KidsPeace provided. Statement of Errors at 5-6 (quoting Record at 277-78). He adds that the administrative law judge ignored a Crisis Assessment in the file as well as his history of cutting himself, referenced as recently as August 2011. See id. at 6 (citing Record at 505-10, 581-87). He argues that statements about practical problems such as transportation are not probative, particularly in a young man, of his ability to work on a full-time, sustained basis, and none of the records mentioned by the administrative law judge contradicts his concentration deficit. See id.
As the commissioner counters, however, see Opposition at 8-9, statements by the plaintiff that he was doing "fine," or words to that effect, and normal or relatively normal findings on mental status examination can be found throughout the record, see, e.g., Record at 276, 294, 344, 346, 364, 374-75, 504, 534-37, 555-59, 562-65. While, as the plaintiff points out, see Statement of Errors at 6, the evidence to this effect is not monolithic, the administrative law judge reasonably determined that this evidence, taken as a whole, weighed against giving full credence to his complaints of disabling mental restrictions, see, e.g., 20 C.F.R. 404.1529(c)(2), 416.939(c)(2) ("Objective medical evidence . . . is a useful indicator to assist us in making reasonable conclusions about the intensity and persistence of your symptoms and the effect those symptoms . . . may have on your ability to work.").
The administrative law judge likewise reasonably deemed evidence that the plaintiff had lost jobs, or was prevented from obtaining them, due to transportation issues inconsistent with his complaints of disabling mental limitations.
Her credibility determination, accordingly, is entitled to deference. See, e.g., Frustaglia v. Secretary of Health & Human Servs., 829 F.2d 192, 195 (1st Cir. 1987) ("The credibility determination by the ALJ, who observed the claimant, evaluated his demeanor, and considered how that testimony fit in with the rest of the evidence, is entitled to deference, especially when supported by specific findings.").
For the foregoing reasons, I recommend that the decision of the commissioner be
