The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
WALTER J. S., JR., )
)
Plaintiff )
)
v. ) No. 1:18-cv-00295-JHR
)
ANDREW M. SAUL, )
Commissioner of Social Security,1 )
)
Defendant )
MEMORANDUM DECISION2
This Supplemental Security Income (“SSI”) 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 bases
that the ALJ failed to (i) find a severe cognitive disorder, (ii) properly evaluate whether his seizure
disorder or cognitive disorder met or equaled any of the so-called “Listings,” Appendix 1 to 20
C.F.R. Part 404, Subpart P, or (iii) properly assess his residual functional capacity (“RFC”). See
Statement of Specific Errors (“Statement of Errors”) (ECF No. 11) at 3-18. I agree that the ALJ
erred in failing to find a severe cognitive disorder, and that the error was not harmless. On that
1 Pursuant to Federal Rule of Civil Procedure 25(d), Andrew M. Saul is substituted as the defendant in this matter.
2 This action is properly brought under 42 U.S.C. § 1383(c)(3). The commissioner has admitted that the plaintiff has
exhausted his administrative remedies. The case is presented as a request for judicial review by this court pursuant to
Local Rule 16.3(a)(2), which requires the plaintiff to file an itemized statement of the specific errors upon which he
seeks reversal of the commissioner’s decision and to complete and file a fact sheet available at the Clerk’s Office, and
the commissioner to file a written opposition to the itemized statement. Oral argument was held before me pursuant
to Local Rule 16.3(a)(2)(D), requiring the parties to set forth at oral argument their respective positions with citations
to relevant statutes, regulations, case authority, and page references to the administrative record. The parties have
consented to have me conduct all proceedings in this matter, including the entry of judgment. ECF No. 17.
basis, I vacate the commissioner’s decision and remand this case for further proceedings consistent
herewith. I need not and do not reach the plaintiff’s additional points of error.
Pursuant to the commissioner’s sequential evaluation process, 20 C.F.R. § 416.920;
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 had the severe impairments of status post surgery for brain tumor,
seizure disorder, bipolar disorder/depression, anxiety, and post-traumatic stress disorder
(“PTSD”), Finding 2, id. at 12; that he had no impairment or combination of impairments that met
or medically equaled in severity any of the Listings, Finding 3, id. at 13; that he had the RFC to
perform a full range of work at all exertional levels but could not climb ladders, ropes, or scaffolds,
needed to avoid hazards such as moving machinery, unprotected heights, sharp objects, water or
electrical hazards, and operation of hazardous machines including motor vehicles, and was capable
of simple, unskilled work in a low-stress job involving only occasional decisionmaking, only
occasional changes in the work setting, no contact with the public, only occasional contact with
supervisors or coworkers, and no tandem tasks, Finding 5, id. at 15; that, considering his age (22
years old, defined as a younger individual, on the date his application was filed, June 26, 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 he could perform,
Findings 6-9, id. at 24; and that he, therefore, had not been disabled from June 26, 2015, the date
his application was filed, through the date of the decision, November 8, 2017, Finding 10, id. at
25. 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. § 416.1481; 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. § 1383(c)(3); 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 his 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.
Sec’y of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).
The statement of errors also implicates Step 2 of the sequential evaluation process.
Although a claimant bears the burden of proof at Step 2, it is a de minimis burden, designed to do
no more than screen out groundless claims. McDonald v. Sec’y of Health & Human Servs., 795
F.2d 1118, 1124 (1st Cir. 1986). When a claimant produces evidence of an impairment, the
commissioner may make a determination of non-disability at Step 2 only when the medical
evidence “establishes only a slight abnormality or [a] combination of slight abnormalities which
would have no more than a minimal effect on an individual’s ability to work even if the
individual’s age, education, or work experience were specifically considered.” Id. (quoting Social
Security Ruling 85-28).
I. Discussion
The plaintiff alleges disability commencing on January 5, 2014, when he first experienced
a seizure and fell from a roof while shoveling snow. See Record at 10, 50, 453. Diagnostic studies
revealed the existence of a brain tumor, which was surgically removed on February 12, 2014. See
id. at 724, 726. Although the plaintiff continued to take prescribed anticonvulsant medication
following his surgery, his seizures persisted, and he consulted a neurologist in August 2014. See
id. at 493, 574-77. Despite ongoing treatment by his neurologist, the plaintiff continued to
experience seizures through October 2015. See id. at 836.
In the wake of his surgery, the plaintiff also began to experience changes in mood and
ability to function. See id. at 538-39, 574-75. He underwent a psychosocial evaluation in February
2015 and a psychological evaluation in April 2015, see id. at 538, 795, and was diagnosed with
“bipolar and related disorder due to an associated medical condition, adjustment disorder with
depressed mood, and generalized anxiety disorder” with an apparent “schizoid/schizotypal
personality trait” and a possible diagnosis of PTSD, id. at 797.
Prior to the hearing, the ALJ also ordered a psychological consultative examination to
include, inter alia, (i) administration of a WAIS-IV test, (ii) comment on any noted memory or
neurological deficits, and (iii) a medical source statement (“MSS”). See id. at 937. Agency
examining consultant A.J. Butler, Ed.D., conducted that evaluation on August 17, 2017. See id. at
937-43. She noted that, “[o]n the WAIS-IV, a general measure of intelligence, [the plaintiff]
obtained a Verbal Comprehension Index of 83, a Perceptual Reasoning Index of 60, and a Full
Scale IQ of 74[,]” with his full-scale IQ falling “within the borderline classification of intelligence
significantly below adequate average development.” Id. at 941. She added, “Analysis of [the
plaintiff’s] performance revealed that he experiences significant-to-severe cognitive processing
difficulties.” Id. She elaborated:
There was a statistically significant atypical discrepancy between his Verbal
Comprehension and Perceptual Reasoning Indexes of 23 standard score points, in
favor of the former. The test results provided evidence of organicity, an underlying
neurological impairment in the area of Perceptual Reasoning.
Id. She stated that she considered the test results to be valid. See id.
Dr. Butler diagnosed the plaintiff with cognitive disorder, NOS [not otherwise specified],
as well as generalized anxiety disorder with panic attacks, bipolar disorder, and PTSD. See id. at
943. In the MSS section of her report, she stated, in relevant part:
In regard to work-related activities, [the plaintiff] would be able to understand and
remember tasks consistent with borderline intellectual ability. He would likely
need enhanced verbal mediation and multiple repetition and reinforcement of
verbal information in order to acquire, retain, and utilize it. Cognitively, he tends
to reason concretely.
Id. In a standalone MSS form that Dr. Butler also completed, she checked a box indicating that
the plaintiff had marked difficulty understanding and remembering simple instructions. See id. at
944-46.
The ALJ neither found a severe cognitive impairment nor explained why he did not. See
id. at 12. He found a severe impairment of “status post surgery for brain tumor” in addition to
“seizure disorder,” but did not explain whether he meant it to include any cognitive disorder or
what limitations, if any, he found it to impose. Id. Indeed, the commissioner does not dispute that
the ALJ omitted to find a severe cognitive disorder. See Defendant’s Opposition to Plaintiff’s
Statement of Errors (“Opposition”) (ECF No. 15) at 2. However, he contends that substantial
evidence supports that omission and, in any event, any error is harmless. See id. at 2-6. I find
otherwise.
The commissioner correctly notes that “a diagnosis alone does not establish that an
impairment is severe[,]” id. at 4 (citing Brown v. Colvin, No. 2:13-cv-473-JHR, 2015 WL 58396,
at *2 (D. Me. Jan. 5, 2015), and that “‘[a]n error at Step 2 is uniformly considered harmless, and
thus not to require remand, unless the plaintiff can demonstrate how the error would necessarily
change the outcome of [his] claim[,]’” id. (quoting Bolduc v. Astrue, Civil No. 09-220-B-W, 2010
WL 276280, at *4 n.3 (D. Me. Jan. 19, 2010)).
He contends that the plaintiff fails to show that Dr. Butler’s diagnosis of a cognitive
disorder would change the outcome of his case given that (i) her report “overlaps with earlier
documented findings considered by” agency nonexamining consultants David R. Houston, Ph.D.,
and Brian Stahl, Ph.D., whose opinions the ALJ gave great weight, id. at 5, (ii) “[c]onsistent with
Dr. Butler’s diagnosis of a cognitive disorder, the ALJ acknowledged that Plaintiff had ‘mild
cognitive deficits’ after his brain surgery, and considered such deficits when identifying Plaintiff’s
severe impairments at step two and, subsequently, when determining the RFC[,]” id. at 4, and (iii)
the plaintiff fails to show that the Butler report establishes greater limitations than encapsulated in
the ALJ’s RFC determination, see id. at 5-6.
In support of the first point, the commissioner argues that, although Drs. Houston and Stahl
did not have the benefit of review of the Butler report, which postdated their opinions, they
considered the plaintiff’s brain surgery and subsequent cognitive deficits, see id. at 2, and there
were “significant similarities” between the records available to them and the Butler report, id. at
4. He observes, for example, that a February 2015 mental status examination indicated that the
plaintiff’s “thought process was not tangential or circumstantial, he could recall past and current
presidents, and he could attend to his daily needs – just as Dr. Butler noted in August 2017.” Id.
(citations omitted).
However, while Dr. Butler’s mental status examination yielded some results similar to
those noted in the materials that Drs. Houston and Stahl had reviewed, compare, e.g., Record at
541 with id. at 941, Dr. Butler also estimated that the plaintiff’s short-term verbal memory
functioning was within the borderline range and indicated that he had “observable attention and
concentration difficulties[,]” id. at 941. Moreover, in relying on Drs. Houston and Stahl’s review
of materials pre-dating the Butler report, the commissioner minimizes the significance of the
WAIS-IV testing that Dr. Butler performed. As noted above, that testing revealed that the
plaintiff’s full-scale IQ score fell within the borderline classification of intelligence, “significantly
below adequate average development[,]” and that “he experience[d] significant-to-severe
cognitive processing difficulties.” Id. The Butler report, hence, was not merely cumulative of the
evidence that Drs. Houston and Stahl had reviewed.
In support of the second point, the commissioner observes that the ALJ acknowledged that
the plaintiff “had ‘mild cognitive deficits’” following his brain surgery. Opposition at 4 (quoting
Record at 19). However, the ALJ focused in that passage on post-surgical findings of “initial
slowness of general processing, and word-finding deficits, which improved with brief speech
therapy[,]” noting that as of May 2014, primary care notes reflected “normal psychological status.”
Record at 19 (citations omitted). This passage, thus, did not address Dr. Butler’s findings
predicated on WAIS-IV testing in August 2017.
Moreover, as the plaintiff argues, see Statement of Errors at 4-6, to the extent that the ALJ
did directly address the Butler report, he seemingly misconstrued it. While he did not indicate that
he found the WAIS-IV scores invalid, he suggested that the two higher scores negated the lower
one, see Record at 13-14.3 Dr. Butler, however, had explained that the “statistically significant
atypical discrepancy between [the plaintiff’s] Verbal Comprehension and Perceptual Reasoning
Indexes of 23 standard score points . . . provided evidence of organicity, an underlying neurological
3 In explaining his Step 3 finding that the plaintiff had a moderate limitation in understanding, remembering, or
applying information, the ALJ stated that, while the plaintiff’s WAIS-IV Perceptual Reasoning score “suggested
weakness within his cognitive processing of information[,] . . . his scores on the Verbal Comprehension Index, and
Processing Speed Index[,] were in the low average range, and his scores on the Working Memory Index were actually
in the high average range.” Record at 13 (citation omitted). He made the same observation in support of his Step 3
finding that the plaintiff had a moderate limitation in concentrating, persisting, or maintaining pace, see id. at 14, and
his Step 4 discussion of the Butler evidence, see id. at 21.
impairment in the area of Perceptual Reasoning.” Id. at 941. The ALJ further suggested, in
discussing the Butler report at Step 4, that the plaintiff had not established that he had a
neurocognitive disorder, stating:
In order to establish a neurocognitive disorder, the program requires medical
documentation of a significant cognitive decline from a prior level of functioning.
Although the record lacks documentation of previous cognitive functioning, the
[plaintiff]’s neurosurgery records indicate [he] graduated from high school “with a
push” and he had some problems with academic performance. Given the
[plaintiff]’s own reports of lifelong learning disabilities and behavioral problems,
one low score does not equal a cognitive decline.
Id. at 21 (citation omitted). However, as the plaintiff observes, see Statement of Errors at 5, the
ALJ mistakenly applied the standard for establishing that a claimant’s impairment meets or equals
Listing 12.02 (neurocognitive disorder), see Listing 12.02. To demonstrate that he had a severe
cognitive impairment, the plaintiff was required only to establish that he had a medically
determinable impairment that had more than a minimal effect on his ability to work, see, e.g.,
McDonald, 795 F.2d at 1124.
Finally, in support of the third point, the commissioner argues that the plaintiff fails to carry
his burden of demonstrating prejudicial error. See Opposition at 4-6. That is not so. As the
plaintiff observes, “Dr. Butler opined that [he] would have marked limitations in the ability to
understand and remember simple instructions and make judgments on simple work-related
decisions.” Statement of Errors at 7; Record at 944. A “marked” limitation is defined as a “serious
limitation[,]” with “a substantial loss in the ability to effectively function[.]” Record at 944.
Accepted at face value, this opinion undermines the ALJ’s reliance on the testimony of a vocational
expert that a person capable, inter alia, “of simple, unskilled work” could perform the jobs on
which the ALJ relied to meet the commissioner’s Step 5 burden. Id. at 25, 102-03.4
4 While the ALJ addressed the Butler MSS contained within the Butler report, which he accorded little weight, he did
not address the standalone MSS in which Dr. Butler checked a box indicating that the plaintiff had marked limitation
Remand, accordingly, is required on the basis of this point of error.
II. Conclusion
For the foregoing reasons, the commissioner’s decision is VACATED, and the case is
REMANDED for proceedings consistent herewith.
Dated this 25th day of August, 2019.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
in his ability to understand and remember simple instructions and make judgments on simple work-related decisions.
See Record at 23-24, 944-46.