JOHN H. RICH, III, Magistrate Judge.
The plaintiff in this Supplemental Security Income ("SSI") appeal
In accordance with 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 administrative law judge found, in relevant part, that the plaintiff suffered from degenerative disc disease in the lumbar spine, a seizure disorder, post-traumatic stress disorder, and borderline intellectual functioning, impairments that were severe but which, considered separately or in combination, did not meet or medically equal the criteria of any impairment listed in Appendix 1 to 20 C.F.R. Part 404, Subpart P (the "Listings"), Findings 2-3, Record at 22-23; that she retained the RFC to perform light work with a sit/stand-at-will option, but not work that required the ability to climb ladders, ropes, scaffolds, stairs, or ramps, to balance, stoop, kneel, crawl, or crouch more than occasionally, to be exposed to hazards in the workplace, to carry out other than simple, repetitive instructions, to interact with the general public, to interact more than occasionally with supervisors and coworkers, to make more than occasional decisions, or to adjust to more than occasional changes in the work setting, Finding 4, id. at 26; that the plaintiff had no past relevant work, Finding 5, id. at 34; that, given her age (39 on the date the application was filed), at least high school education, and RFC, there were jobs existing in significant numbers in the national economy that the plaintiff could perform, Findings 6-9, id. at 34; and that, therefore, the plaintiff had not been under a disability, as that term is defined in the Social Security Act, at any time since the date the application was filed, September 29, 2011, Finding 10, id. at 35. The Appeals Council declined to review the decision, id. at 1-3, making it 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).
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 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 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 plaintiff's itemized statement also implicates Step 3 of the sequential review process. At Step 3, 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).
The plaintiff first argues that the administrative law judge was required to find that her medically determinable impairments medically equaled the criteria of Listing 12.02
The administrative law judge considered Listings 12.05 and 12.06. Record at 23-25. Of Listing 12.06, she said:
Id. at 25.
"Paragraph C" is a reference to the final, alternative part of Listing 12.06, which has three subparts, as follows:
Listing 12.06.
The administrative law judge had already concluded, in her discussion of Listing 12.05, that the plaintiff had mild restriction in activities of daily living, moderate difficulties in social functioning, moderate difficulties in concentration, persistence, or pace, and no episodes of decompensation. Record at 24. Thus, she concluded that the criteria of paragraph B of Listing 12.06 were not met. Without meeting the criteria of either paragraph B or paragraph C of Listing 12.06, the plaintiff could not qualify for benefits by meeting all of the criteria of the listing.
The plaintiff relies in this regard on the assessment of Bennett Slotnick, Ph.D., who "performed a comprehensive neuropsychological evaluation of the Plaintiff over a 4-day period." Itemized Statement at 3. She asserts that Dr. Slotnick's findings and opinions demonstrate that she "suffers from marked difficulties in maintaining concentration," and marked limitations in social functioning. Id. at 5. She concludes that Dr. Slotnick's opinions show that she "medically equals 12.06A(1) and (5)." Id. at 6.
This argument apparently rests on an assertion that two of the criteria in paragraph B of the listing are met, as well as the requirements of paragraph A. However, as to subparagraph A(1), the plaintiff cites no finding from Dr. Slotnick of any of the four specific signs or symptoms, let alone three of the four. As to subparagraph A(5), the plaintiff cites Dr. Slotnick's finding of "elements of posttraumatic stress disorder," id. at 4, but cites no authority for her necessarilyimplied contention that this finding is sufficient to demonstrate recurrent and intrusive recollections of a specific traumatic experience. She cannot expect this court, or the administrative law judge, to draw such a conclusion by interpreting what can only be characterized as raw medical evidence. To the extent that the plaintiff means to supply such evidence from the report of her counselor, id., the counselor is not an acceptable medical source, 20 C.F.R. § 416.913(a), and her opinions accordingly may not serve as medically documented findings. See, e.g., Thompson v. Colvin, Civil Action No. 12-2555-JWL, 2013 WL 6804257, at *6 (D. Kan. Dec. 23, 2013); Lane v. Commissioner of Soc. Sec., No. 1:12cv388, 2013 WL 5428739, at *14 (W.D. Mich. Sept. 26, 2013) (citing cases).
In Stratton v. Astrue, 987 F.Supp.2d 135 (D.N.H. 2012), the court was faced with a onesentence discussion of the reasons why the administrative law judge found that the claimant did not meet the criteria of a specific listing that the claimant had raised at the hearing, and indicated that that discussion was insufficient. Id. at 144. However, it also "recognize[d] that the failure of the ALJ to make specific findings as to whether a claimant's impairment meets the requirements of a listed impairment is an insufficient reason solely for setting aside an administrative finding." Id. at 145. It remanded, in that case, based on the lack of discussion regarding how the plaintiff's medical evidence differed from that considered in the applicable listing. Id. at 146. As I have already noted, that is not the case presented here.
The plaintiff also faults the administrative law judge for failing to discuss Dr. Slotnick's evaluation "in her Listing discussion." Itemized Statement at 7-8. However, the administrative law judge's opinion includes more than a single-spaced page of discussion of Dr. Slotnick's evaluation. Record at 30-31. The administrative law judge then presented her analysis of that evaluation, as follows:
Id. at 32-33. Remand for the placement of this paragraph in the earlier section of the administrative law judge's opinion would be an empty exercise. See Pidkaminy v. Astrue, 919 F.Supp.2d 237, 250 (N.D.N.Y. 2013).
The plaintiff is not entitled to remand on the basis of her challenges to the administrative law judge's decision at Step 3.
The plaintiff next argues that the administrative law judge committed reversible error by failing to give "greatest or substantial weight" to the opinions of Dr. Slotnick and Ms. Hester. Itemized Statement at 8-17. She contends that this treatment was required because Dr. Slotnick "is the expert who performed the most detailed evaluation in the Record . . . of the Plaintiff's emotional and cognitive impairments and resulting limitations on her functional capacity[,]" id. at 11-12. She does not provide any reason why Ms. Hester's opinions should be given such weight, other than an observation that her opinions "supported" and "are not inconsistent with" those of Dr. Slotnick. Id. at 12, 16. This is not sufficient to raise an issue for review by this court of the administrative law judge's treatment of Ms. Hester's opinions, LaFlamme, 2015 WL 519422 at *7, and I will not discuss that issue further.
The plaintiff characterizes the administrative law judge's review of Dr. Slotnick's observations of her behavior and manner during his evaluation as "irrelevant." Itemized Statement at 12. To the contrary, the very fact that Dr. Slotnick recorded his observations suggests that he did not find them irrelevant to his analysis, which would render them relevant to the administrative law judge's review. In addition, such observations may provide evidence of a claimant's ability to perform basic work-related activities, e.g., Wolfe v. Commissioner of Soc. Sec., 272 Fed. Appx. 21, 23, 2008 WL 895685, at **1 (2d Cir. Apr. 1, 2008) (adequate eye contact, clear and coherent speech relevant to ability to perform work-related activities); Clark v. Bowen, 864 F.2d 66, 67 (8th Cir. 1988) (finding that claimant was oriented in all spheres relevant to ability to perform work-17. There is a single mention of the treatment of Listing 12.05 as error in the body of the itemized statement. Id. at 8 ("[W]ithout a discussion of Dr. Slotnick's th[o]rough evaluation, the results of his neuropsychological testing, and his opinions, the ALJ's analysis of Listings 12.05 and 12.06 is materially incomplete."). This is not sufficient to raise an issue for the court's consideration. LaFlamme v. Colvin, Civil No. 1:14-cv-57-DBH, 2015 WL 519422, at *7 (D. Me. 2015) related activities), and, in any event, it does not appear that the administrative law judge relied on these observations alone as the basis for rejecting Dr. Slotnick's conclusions. Record at 30-31.
The plaintiff asserts that Dr. Slotnick's findings that she is unable to consider her own needs and interests in relationships, that she adopts a passive and apologetic style characterized by a lack of assertiveness, and that she would benefit from group therapy mean that she would not be able to relate adequately with coworkers and supervisors. Itemized Statement at 14. In this regard, it is important to note that the RFC assigned to the plaintiff by the administrative law judge called for only occasional interaction with coworkers and supervisors. Record at 26. In the absence of any indication that Dr. Slotnick's references to "relationships" include interaction with coworkers and supervisors, as well as any professional or judicial authority linking the specific findings identified by the plaintiff to a conclusion that she could never interact adequately with coworkers or supervisors, her argument would require the administrative law judge, and this court, to interpret raw medical data, which, as I have already noted, neither may do.
As the plaintiff notes, Itemized Statement at 16, the fact that Dr. Slotnick is a specialist is a factor to be considered in weighing his opinions, 20 C.F.R. § 416.927(c)(5), but it is only one of several factors. The opinions of state-agency reviewing professionals, who are familiar with Social Security regulations and practices, may be credited by an administrative law judge over those of an evaluating specialist.
As a final basis for remand, the plaintiff asserts that the RFC assigned to her by the administrative law judge was not supported by substantial evidence because Dr. Slotnick's testing and conclusions require a more limited RFC and the opinions of the state-agency psychologists are contrary to the "only `objective' evidence that exists regarding the Plaintiff's cognitive and emotional functional deficits" and must, therefore, be rejected. Itemized Statement at 18-19. From all that appears, this is merely a restatement of the arguments already made by the plaintiff, which I have rejected.
For the foregoing reasons, the commissioner's decision is
