JOHN H. RICH, III, Magistrate Judge.
This Social Security Disability ("SSD") appeal raises the question of whether the administrative law judge ("ALJ") supportably found the plaintiff capable of performing work existing in significant numbers in the national economy. The plaintiff seeks remand on the basis that the ALJ erred at Step 3 in determining that she did not medically equal the criteria of Listing 12.08, Appendix 1 to 20 C.F.R. Part 404, Subpart P ("the Listings"). See Plaintiff's Statement of Errors ("Statement of Errors") (ECF No. 11) at 4-11. I find no error. Accordingly, I recommend that the court affirm the commissioner's decision.
Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 404.1520; Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the ALJ found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act through December 31, 2015, Finding 1, Record at 37; that she had the severe impairments of anxiety-related disorder/post-traumatic stress disorder ("PTSD") and personality disorder/borderline personality disorder, Finding 3, id.; that she had no impairment or combination of impairments that met or medically equaled in severity the criteria of a listed impairment, Finding 4, id. at 38; that she had the residual functional capacity ("RFC") to perform a full range of work at all exertional levels, but with the nonexertional limitations that she could understand and remember only short, simple instructions, she was able to work in two-hour time blocks in a normal workday/week performing simple tasks with appropriate concentration, persistence, and pace, she could interact occasionally with coworkers and supervisors but never with the general public, she would do best in a job with minimal social interactions, she could adapt to occasional, simple changes in the work setting (low stress), and she could be aware of normal hazards and take appropriate precautions, Finding 5, id. at 40; that, considering her age (44 years old, defined as a younger individual, on her date last insured, December 31, 2015), education (at least high school), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that she could perform, Findings 7-10, id. at 42; and that she, therefore, had not been disabled from January 29, 2014, her amended alleged disability onset date, through December 31, 2015, her date last insured, Finding 11, id. at 43. The Appeals Council declined to review the decision, id. at 1-4, making the decision the final determination of the commissioner, 20 C.F.R. § 404.981; Dupuis v. Sec'y 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); Manso-Pizarro v. Sec'y 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. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
The ALJ 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. § 404.1520(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. Sec'y of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).
The statement of errors implicates Step 3 of the sequential evaluation process, at which step a claimant bears the burden of proving that her impairment or combination of impairments meets or equals a listing. 20 C.F.R. § 404.1520(d); Dudley v. Sec'y 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. § 404.1525(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. § 404.1526(a).
At the plaintiff's administrative hearing, held on February 2, 2016, psychologist James Claiborn, Ph.D., testified as a medical expert. See Record at 35. In response to questioning by the ALJ, Dr. Claiborn testified, in relevant part, that he "[did not] believe" that "the signs and symptoms or laboratory findings associated with the impairments of [the plaintiff,] when considered either singly or in combination[,] equal[ed] a listing." Id. The ALJ then elicited Dr. Claiborn's testimony regarding the plaintiff's mental RFC. Id. at 105-10.
The plaintiff's hearing counsel, who also represents the plaintiff in this appeal, then questioned Dr. Claiborn, in response to which he testified that: (i) based on the plaintiff's diagnoses of PTSD and personality disorder, it would be accurate to conclude that "she may have some significant issues with emotional stability[,]" id. at 111, (ii) the plaintiff's emotional stability would at times "have a significant impact" on her "functionality[,]" although he "didn't know . . . how to predict how often or . . . how much of an impact" it would have, id., (iii) "people with [the plaintiff's] kind of personality disorder . . . are often poorly skilled at emotional regulation[,]" and, therefore, it would be "fair" to conclude "that there will be times or certainly could be times where that problem is going to translate into moderate to more marked limitations on functioning," id. at 112-13, (iv) "people with borderline personality disorder are often prone to abruption and sometimes frequent changes in mood when they get quite upset or depressed over . . . what others might consider relatively minor events[,]" which is "likely to have an impact on their interpersonal relations[,]" and "[t]hey may be overly sensitive to criticism, they may be a little suspicious about people and they tend to idealize and then demonize the same individual over time[,]" id. at 113, (v) given the evaluation of agency examining consultant Edward Quinn, Ph.D., and the plaintiff's testimony, it was "fair to say that those symptoms ha[d] been present with [the plaintiff,]" id. at 113-14, (vi) "[the plaintiff] may engage in . . . avoidant behavior," id. at 114, (vii) it would be "consistent" with the plaintiff's PTSD diagnosis if she experiences "episodes of hypervigilance" and "recurrent intrusive memories of traumatic events when she's out in public[,]" id., and (viii) "[the plaintiff] may not be able to predict" when she would experience "symptoms of depression, recurrent intrusive memories of traumatic events, . . . [and] symptoms of physical isolation[,]" id. at 115-16. The plaintiff's counsel did not question Dr. Claiborn regarding his previously stated opinion that the plaintiff's impairments neither met nor equaled a listing. See id. at 110-18.
On further questioning by the ALJ, Dr. Claiborn testified that, "despite [his] responses to [the plaintiff's counsel's] skillful questioning, . . . [he] believe[d] based on all [of] the facts and circumstances of this case that the RFC [he] provided [was] an accurate reflection of the [plaintiff]'s abilities[.]" Id. at 115.
The ALJ found that, while the plaintiff's borderline personality disorder and PTSD were severe impairments, see Finding 3, id. at 37, "[t]he severity of [her] mental impairments, considered singly and in combination, did not meet or medically equal the criteria of [L]isting . . . 12.08[,]" id. at 39.
The plaintiff contends that the ALJ erred when he found that her impairments did not medically equal Listing 12.08, which pertains to personality disorders. See Statement of Errors at 4-11.
She adds that Dr. Quinn's report also supports such a finding and that Dr. Claiborn's hearing testimony is consistent with her own. See id.; see also Record at 419 (findings by Dr. Quinn that plaintiff "may have some difficulties interacting with others due to personality factors[,]. . . may have some difficulties with stressors[,] . . . may have some significant issues with emotional stability[,] . . . [and] may have difficulties in social settings").
At oral argument, the plaintiff's counsel further contended that the ALJ's failure to reconcile material conflicts in the Claiborn testimony as to whether his client's impairments equaled a listing warranted remand.
The commissioner rejoins that (i) the plaintiff waived her challenge to the Listing 12.08 finding by failing to raise it before the ALJ, (ii) in the alternative, she fails to make a valid prima facie case that her impairments equal the severity of Listing 12.08, both because she relies on the current version of that listing rather than the version in effect at the time of the ALJ's decision and because she offers no expert opinion on the matter, and, (iii) in the alternative, the ALJ's finding that her impairments did not equal a listing is supported by substantial evidence. See Defendant's Opposition to Plaintiff's Statement of Errors ("Opposition") (ECF No. 12) at 3-12.
I agree that the plaintiff's bid for remand founders on the alternative bases that (i) she fails to make out a prima facie that her impairments equal Listing 12.08 and, (ii) in any event, the ALJ's finding that they did not is supported by substantial evidence. In those contexts, I address issues of waiver.
As the commissioner observes, see Opposition at 4-5, a claimant challenging an ALJ's determination that her impairments did not equal a listing bears the burden to identify objective medical findings and "explain how these findings can `equal' the listing[,]" Burnham v. Soc. Sec. Admin. Comm'r, No. 1:11-cv-00246-GZS, 2012 WL 899544, at *3 (D. Me. Mar. 15, 2012) (rec. dec., aff'd Apr. 3, 2012). The plaintiff fails to do so here because she relies on the current version of Listing 12.08 rather than the version in effect as of the ALJ's March 2, 2016, decision.
To meet both the current and prior versions of Listing 12.08, a claimant must meet at least one of several paragraph A criteria and have, inter alia, a marked level of limitation in at least two of four areas of functioning described in paragraph B. Compare Listing 12.08, 20 C.F.R. Appendix 1 to 20 C.F.R. Part 404, Subpart P (Apr. 1, 2016) ("2016 Version") with Listing 12.08, 20 C.F.R. Appendix 1 to 20 C.F.R. Part 404, Subpart P (Apr. 1, 2017) ("Current Version").
However, as the commissioner points out, see Opposition at 5-7 & n.1, substantive changes were made to Listing 12.08. For example, Paragraph A of the 2016 Version requires that a claimant show:
Listing 12.08(A), 2016 Version.
By contrast, paragraph A of the Current Version requires:
Listing 12.08(A), Current Version (emphasis in original).
The plaintiff contends that the following testimony of Dr. Claiborn demonstrates that she was "prone to and does have `instability in her interpersonal relationships['] as required by [Listing] 12.08(A)[,]" Statement of Errors at 6-7:
Record at 113.
She argues that her impairments equaled Listing 12.08 because Dr. Claiborn's testimony indicated not only that she met the criteria of paragraph A but also that she had one of the two marked restrictions required by paragraph B as well as additional significant impacts from her personality disorder. See Statement of Errors at 7-9.
Yet, as the commissioner points out, see Opposition at 6, the most analogous provision of the applicable version of paragraph A of the listing required a demonstration of "[d]eeply ingrained, maladaptive patterns of behavior associated with . . . [i]ntense and unstable interpersonal relationships and impulsive and damaging behavior[,]" Listing 12.08(A) (2016 Version).
At oral argument, the plaintiff's counsel did not contest the applicability of the 2016 Version.
In any event, as the commissioner argues in the alternative, see Opposition at 8-12, the ALJ's finding that the plaintiff's impairments did not meet or equal Listing 12.08 is supported by substantial evidence. The ALJ explicitly relied on the opinion of agency nonexamining consultant David R. Houston, Ph.D., in support of that finding, see Record at 39, 147, and, as noted above, Dr. Claiborn testified at hearing that the plaintiff's mental impairments neither met nor equaled a listing, see id. at 105.
Beyond this, as the commissioner notes, see Opposition at 9, the fact that both Drs. Houston and Claiborn found that the plaintiff retained the mental RFC to perform a range of substantial gainful activity "tends to reinforce the inference that [her impairments] neither me[]t nor equal[ed]" a listing, Burnham, 2012 WL 899544, at *3. This is so because the standard for meeting or equaling a listing at Step 3 is more stringent than that by which disability is determined at Steps 4 and 5 based on a claimant's RFC. Compare 20 C.F.R. § 404.1525(a) (providing that the Listings " describe[] . . . impairments that we consider to be severe enough to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience") (emphasis added) with id. § 404.1505(a) (defining "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 12 months") (emphasis added); see also, e.g, Sullivan v. Zebley, 493 U.S. 521, 532 (1990) ("The [commissioner] explicitly has set the medical criteria defining the listed impairments at a higher level of severity than the statutory standard. The [L]istings define impairments that would prevent an adult, regardless of his [or her] age, education, or work experience, from performing any gainful activity, not just `substantial gainful activity.'") (emphasis in original).
At oral argument, the plaintiff's counsel nonetheless contended that remand is required because the ALJ failed to resolve a material conflict in Dr. Claiborn's own testimony. He posited that, because Dr. Claiborn had given two diametrically opposed sets of answers bearing on the question of whether the plaintiff's impairments equaled a listing, the ALJ had an obligation to address the internal inconsistency. Yet, as the commissioner suggests, see Opposition at 4, the ALJ was not put on clear enough notice of that conflict to have been obliged to resolve it.
"When a claimant is represented, the ALJ[] should ordinarily be entitled to rely on claimant's counsel to structure and present the claimant's case in a way that claimant's claims are adequately explored." Faria v. Comm'r of Soc. Sec., No. 97-2421, 1998 WL 1085810 at *1 (1st Cir. Oct. 2, 1998) (citation and internal punctuation marks omitted). The plaintiff's counsel did not make clear that his colloquy with Dr. Claiborn regarding the plaintiff's symptoms implicated the question of whether her impairments equaled Listing 12.08 or, for that matter, any other listing. Indeed, he never mentioned the word "listing." Record at 110-18.
Moreover, the ALJ signaled that he understood the plaintiff's counsel's line of inquiry to bear on the plaintiff's mental RFC when he asked Dr. Claiborn whether, "despite [his] responses to [the plaintiff's counsel's] skillful questioning," he believed "based on all [of] the facts and circumstances of this case that the RFC [he] provided [was] an accurate reflection of the [plaintiff]'s abilities[.]" Id. at 115. Dr. Claiborn replied, "I believe it is." Id. Yet, the plaintiff's counsel never followed up with questioning clearing up that misapprehension, if any there was. See id. at 115-18.
In this respect, as the commissioner suggests, see Opposition at 4, this case is materially indistinguishable from Baker v. Soc. Sec. Admin. Comm'r, No. 1:10-cv-00167-JAW, 2011 WL 1298694 (D. Me. Mar. 31, 2011) (rec. dec., aff'd Apr. 19, 2011), in which this court rejected a claimant's argument that remand was warranted on the basis of an ALJ's failure to include a "twohour block" restriction in the claimant's RFC or pose it to a vocational expert ("VE") present at his hearing, see Baker, 2011 WL 1298694, at *4-6.
In Baker, the court noted that the plaintiff's counsel, who was "an active participant at the hearing[,]" had "never suggested that . . . a capacity to sustain concentration and attention over two-hour blocks might meaningfully erode the unskilled work base or preclude any of the occupations discussed by the [VE] at the hearing." Id. at *5. This was fatal to the claimant's bid for remand on the basis of the ALJ's omissions, the court noted, reasoning, "There is an expectation that counsel will explore these concerns with the [VE] at the hearing, not leave such matters to technical challenges before the courts." Id. (citing Faria). The court observed:
Id. at *6.
In similar vein, the plaintiff's counsel did not make the plaintiff's position clear to the ALJ and did not establish through his questioning of the medical expert present at hearing, Dr. Claiborn, that there was objective support for a finding that her impairments equaled the applicable version of Listing 12.08. Thus, there was no apparent conflict in the Claiborn testimony for the ALJ to resolve.
For the foregoing reasons, I recommend that the commissioner's decision be
