UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Rachel Lyn Grant

v. Civil No. 14-cv-351-JD Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

O R D E R

Rachel Lyn Grant seeks judicial review, pursuant to

(g), of the decision of the Acting Commissioner of

the Social Security Administration, denying her application for

supplemental security income. Grant moves to reverse and remand

the decision, contending that the Administrative Law Judge

(“ALJ”) erred in concluding that she was not disabled. The

Acting Commissioner moves to affirm.

Standard of Review

In reviewing the final decision of the Acting Commissioner

in a social security case, the court “is limited to determining

whether the ALJ deployed the proper legal standards and found

facts upon the proper quantum of evidence.” Nguyen v. Chater,

(1st Cir. 1999); accord Seavey v. Barnhart,

(1st Cir. 2001). The court defers to the ALJ’s factual findings as long as they are supported by substantial

evidence. § 405(g). “Substantial evidence is more than a

scintilla. It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Astralis

Condo. Ass’n v. Sec’y Dep’t of Housing & Urban Dev.,

(1st Cir. 2010). Substantial evidence, however, “does

not approach the preponderance–of-the-evidence standard normally

found in civil cases.” Truczinskas v. Dir., Office of Workers’

Compensation Programs,

(1st Cir. 2012).

Background

The background information is summarized from the parties’

joint statement of material facts, document no. 10.

Grant was twenty years old when she first applied for

social security benefits. While Grant was in school, testing

results showed that she was in the average to low average range

of intellectual functioning, and she was diagnosed or coded with

attention deficit hyperactivity disorder (“ADHD”). Grant

received special education services beginning in preschool. She

is a high school graduate and worked at Dunkin Donuts until

sometime in 2010. Grant has two children.

2 After Grant applied for supplemental security income, she

was evaluated by Joseph F. Wojcik, Ph.D for the Maine Disability

Determination Services. Based on test results, Grant’s

intellectual functioning was determined to be in the borderline

classification for intelligence. Dr. Wojcik thought that the

test scores were not representative of Grant’s overall ability

to function and that she could grasp directions with one or two

steps and do routine job assignments.

On July 30, 2012, Jason Merrin, Ph.D., evaluated Grant’s

mental status based on an examination and his review of her

records. Dr. Merrin noted that Grant had a slow flow of

cognition but no psychotic symptoms and that she reported no

anxiety or panic symptoms. Grant’s mental status test provided

normal results. During examination on a second test, Grant had

attention and concentration within normal limits but showed

borderline working habits, poor frustration tolerance,

borderline rapport with Dr. Merrin, and a sullen mood and

affect. Her scores on that test were in the borderline range.

In Dr. Merrin’s opinion, Grant could manage her own funds as

long as she maintained her medications, but she might need

assistance with delayed memory. Dr. Merrin also noted that

Grant’s persistence was borderline, her sustained concentration

was within normal limits when she was medicated, her daily

3 activities seemed intact, but her social interaction and

adaptation were impaired.

Lewis F. Lester, Ph.D., reviewed Grant’s record on August

10, 2012. Dr. Lester found that Grant had understanding and

memory limitations, concentration and persistence limitations,

social interaction1 limitations, and adaptation limitations.

Despite her limitations, Dr. Lester found that Grant could

understand and remember simple tasks and procedures, could be

reliable and sustain consistent pace in two-hour blocks in a

work day and week, and could interact with co-workers and

supervisors but not the general public. He also found that the

diagnosis of ADHD was not established by the record.

On March 27, 2013, Grant was examined by Jeffrey M. Wagner,

Ph.D., at the request of Grant’s attorney. Based on his

examination and review of Grant’s records, Dr. Wagner diagnosed

major depression, pain disorder, social anxiety disorder, ADHD,

and borderline intellectual functioning. He found that Grant

was incapable of sustaining independent and full-time gainful

employment.

After her application for benefits was denied, Grant

requested a hearing before an ALJ that was held on April 9,

1At the time of the hearing, Grant had one child and was pregnant with her second child.

4 2013. Grant testified at the hearing that she graduated from

high school but attended special education classes while in

school and had the most difficulty with reading, spelling, and

writing. She also said that she had difficulty focusing and

that she experienced panic attacks and depression a couple of

times each week.

Grant testified that she had a driver’s license and a car

but her boyfriend drove her places in the car. She testified

that her boyfriend’s parents helped her take care of her baby

boy. She also said that she usually had someone else with her

when she went out because she did not like to go out or to shop

alone.

The ALJ issued the decision on Grant’s application on April

26, 2013. The ALJ found that Grant had severe impairments which

were “an organic mental disorder/borderline intellectual

functioning with associated learning disorder and attention-

deficit hyperactivity disorder; and an affective

disorder/depression." Despite those impairments, the ALJ found

that Grant had the residual functional capacity to perform a

full exertional range of work, with simple instructions and

simple tasks on a consistent schedule and that she could

interact with coworkers and supervisors but not the general

public. The ALJ also found that Grant could adapt to occasional

5 routine changes in the workplace. Because the ALJ found that

Grant’s non-exertional limitations did not significantly erode

the number of unskilled jobs, he concluded, based on section

204.00 of the Medical Vocational Guidelines (“the Grid”) that

Grant was not disabled. The Appeals Council denied Grant’s

request for review.

Discussion

Grant moves to reverse and remand the decision on the

grounds that the ALJ erred in relying on the Grid, erred in

giving little weight to Dr. Wagner’s opinion, and erred in

failing to follow the guidance provided by Titles II and XVI:

Documenting and Evaluating Disability in Young Adults, SSR 11-

2p,

(Sept. 12, 2011) (“SSR 11-2p”). The Acting

Commissioner moves to affirm, contending that the ALJ properly

relied on the Grid, properly evaluated Dr. Wagner’s opinion,

properly considered Grant’s educational records in accordance

with the guidance of SSR 11-2p.

A. Expert Opinions

The ALJ is required to consider the medical opinions along

with all other relevant evidence in a claimant’s record.

(b). Medical opinions are evaluated based on

6 the nature of the medical source’s relationship with the

claimant, the consistency of the opinion with the other record

evidence, the medical source’s specialty, and other factors that

may be brought to the ALJ’s attention. § 416.927(c).

Generally, more weight is given to the opinion of a medical

source who examined the claimant. § 416.927(c)(1). A medical

source’s opinion that the claimant is “disabled” or “unable to

work” does not establish that finding, which is the

responsibility of the Acting Commissioner. § 416.927(d)(1).

1. Dr. Wagner

Grant contends that the ALJ erred in failing to give

substantial weight to the opinion provided by Dr. Wagner because

Dr. Wagner reviewed all of the record evidence and because his

opinion was consistent with the record evidence. Dr. Wagner

diagnosed Grant with major depression, pain disorder, social

anxiety disorder, ADHD, and borderline intellectual functioning.

He stated that in his opinion Grant could not sustain

“independent, full time gainful employment.”

The ALJ explained that he gave little weight to Dr.

Wagner’s opinion, noting that Dr. Wagner was not a treating

source, because Dr. Wagner’s description of Grant’s presentation

during examination was inconsistent with her record.

7 Specifically, while Dr. Wagner noted that Grant had severe

depression, had severe anxiety and panic attacks, and obsessive-

compulsive tendencies, the ALJ cited record evidence showing

that Grant did not experience any of those symptoms. The ALJ

also noted that Dr. Wagner’s opinion that Grant was unable to

perform the basic mental demands of unskilled work was

inconsistent with Grant’s treatment records, particularly the

treatment notes provided by ARPN Kathleen MacLean, and with

Grant’s level of daily activity.

Although Grant cites some evidence that she interprets to

support Dr. Wagner’s opinion, other evidence, as cited by the

ALJ, is inconsistent with Dr. Wagner’s opinion. Therefore, the

ALJ’s evaluation of Dr. Wagner’s opinion comports with the

requirements of § 416.927(c).

2. Dr. Lester

Grant also faults the ALJ for relying on the opinion

provided by Dr. Lester. ALJs are required to consider the

opinions of state agency psychological consultants about the

nature and severity of an applicant’s impairments because state

agency consultants “are experts in the Social Security

disability programs.” Titles II and XVI: Consideration of

Administrative Findings of Fact by State Agency Medical and

8 Psychological Consultants and Other Program Physicians, SSR 96-

6p,

(July 2, 1996) (“SSR 96-6p”). The ALJ may

rely on the opinions of state agency consultant psychologists,

using the same considerations that apply to treating or

examining medical sources to assess those opinions.

§ 416.927(e); Ormon v. Astrue,

(1st Cir.

2012); Smallidge v. Colvin,

, at *5 (D.N.H. Feb.

28, 2014); SSR 96-6p. A state agency psychologist’s opinion may

provide substantial evidence to support the ALJ’s findings when

the psychologist reviewed most of the relevant record evidence

and particularly when other opinions in the record reinforce

that opinion. Pelletier v. Colvin,

, at *14

(D.R.I. Jan. 20, 2015) (citing Berrios Lopez v. Sec’y of Health

& Human Servs.,

(1st Cir. 1991)); Howard v.

Colvin, --- F. Supp. 3d ---,

(D. Mass.

Oct. 22, 2014).

The ALJ explained that he relied on Dr. Lester’s opinion

because as a state agency consultant Dr. Lester is familiar with

the social security standards and because the opinion was

consistent with Grant’s record. Grant contends that some of the

evidence in the record, as she interprets it, is not consistent

with Dr. Lester’s opinion. The evidence Grant cites does not

9 directly contradict Dr. Lester’s findings, and other evidence in

the record supports those findings.

Dr. Lester’s opinion is based on most of Grant’s record.

Although Dr. Wagner’s opinion postdated Dr. Lester’s opinion,

the ALJ found that opinion to be entitled to little weight. A

state agency psychologist’s opinion based on a review of an

incomplete record may still constitute substantial evidence as

long as the more recent evidence does not show “a sustained (and

material) worsening in Plaintiff’s condition.” Phan v. Colvin,

, at *15 (D.R.I. Nov. 12, 2014). Grant has not

shown that Dr. Wagner’s opinion constitutes evidence of a

worsening in her condition.

Therefore, the ALJ properly assessed the medical evidence.

B. SSR 11-2p Guidelines

Grant contends that the ALJ erred by not following the

guidelines provided by SSR 11-2p for evaluating disability in

young adults. Grant argues that the ALJ did not consider her

Individualized Education Plan (“IEP”) or her limitations as

provided in her school records as required by SSR 11-2p.

Specifically, Grant faults the ALJ for failing to consider that

she graduated from high school with accommodations and based on

10 expectations that were lower than those for a student without

impairments.

SSR 11-2p directs an ALJ to use the same definition of

disability for young adults that is used for older adults and to

consider information from medical sources, non-medical sources,

and school programs. Contrary to Grant’s view of the ALJ’s

decision, he did consider Grant’s special education background

and her school records. The ALJ stated that Grant’s history and

educational records showed a “longstanding history for early

developmental delays in speech and language, cognitive deficits

in her ability to read, write, and spell, and behavioral

characteristics consistent with a diagnoses [sic] for attention-

deficit hyperactivity disorder.” Because of those delays,

deficits, and behavior, Grant “received assistance through

special needs classes and her academic progress was monitored

through an individualized education plan.”

Grant asserts that the ALJ failed to consider the

“extensive academic accommodations” she received during high

school. The accommodations she cites are that she had help in

class from “facilitators” who read directions to her, she was

not penalized for spelling errors, she was given extra time for

extensive reading requirements, she received study guides, and

11 she was given biweekly progress reports. Grant also notes her

low grades in high school.

The ALJ stated that Grant’s records showed “ongoing special

education classes, further behavioral testing, and the continued

use of an individualized education plan and special education

resources.” After noting Grant’s use of an IEP and special

education resources through high school, the ALJ noted that

Grant graduated from high school with a 2.4 grade point average.

The ALJ also stated that Grant was taking classes in the evening

toward a cosmetology certificate, while she was caring for her

twenty-month old son. Although Grant argues that the ALJ put

too much weight on her graduation from high school, when she

required special education assistance, she does not show that

she graduated from high school based on significantly lower

criteria than other graduates so that her graduation should not

be considered as part of her educational background.

SSR 11-2p “provides guidance as to what types of evidence

the ALJ should consider in cases involving young adults; it does

not mandate a finding of disability merely because such records

exist and/or demonstrate limitations.” McCarl v. Colvin,

, at *4 (W.D. Pa. Feb. 10, 2015). Under the

circumstances, the ALJ could interpret Grant’s graduation

positively as evidence of her ability, despite her impairments.

12 See Eissfeld v. Comm’r of Social Security,

, at

*4 (D. Or. May 8, 2014). In addition, the ALJ noted other

evidence that showed Grant’s ability to function.

C. Reliance on the Grid

At the fifth step of the sequential analysis under

, the Acting Commissioner bears the burden of

proving that the claimant is employable. Heggarty v. Sullivan,

(1st Cir. 1991). That burden may be satisfied

by using the Grid as long as the claimant’s non-exertional

impairments do not significantly erode the occupational base at

the identified exertional level. Nguyen,

; Ortiz

v. Sec’y of Health & Human Servs.,

(1st Cir.

1989). When the ALJ identifies non-exertional impairments, the

ALJ may need the assistance of a vocational expert to determine

whether those impairments significantly erode the occupational

base. Nguyen,

.

Grant argues that the ALJ erred by relying on the Grid to

find that she was not disabled. She asserts, relying on Titles

II and XVI: Capability to Do Other Work--the Medical-Vocational

Rules as a Framework for Evaluating Solely Nonexertional

Impairments, (“SSR 85-15”)

, that the ALJ’s finding

that she can adapt to occasional routine changes in the

13 workplace precludes use of the Grid in her case. In support,

Grant cites a passage from SSR 85-15 which states that the

demands of “remunerative, unskilled work” include the abilities,

among other things, “to deal with changes in a routine work

setting” and that “[a] substantial loss of ability to meet” the

listed work activities “would severely limit the potential

occupational base.”

Under SSR 85-15, only “a substantial loss” of the ability

to deal with changes in a routine work setting would severely

limit the potential occupational base so as to preclude use of

the Grid. See also Ortiz,

. Grant cites no

authority to show that a limitation to “occasional routine

changes in the workplace” would constitute a substantial loss of

the ability to deal with change. As the Acting Commissioner

points out, in Swormstedt v. Colvin,

, at *6 (D.

Me. Apr. 16, 2014), the court concluded that a limitation to

“adapting to occasional changes in the workplace,” along with

other limitations, would have “no more than a negligible effect

on the unskilled occupational base” and did not preclude use of

the Grid. See also Shedd v. Colvin,

, at *7 (D.

Me. Jan.26, 2015); Buschie v. Astrue,

, at *5

(N.D.N.Y. Feb. 13, 2012).

14 A vocational expert was available to testify at the hearing

before the ALJ but was not asked to do so. Generally, it would

be better practice for the ALJ to ask the vocational expert

whether the claimant’s nonexertional limitations significantly

erode the occupational base. See, e.g., Miller v. Colvin,

, at *6 (S.D. W.Va. Aug. 20, 2014). In this case,

however, Grant has not shown that the ALJ improperly relied on

the Grid.

Conclusion

For the foregoing reasons, the applicant’s motion to

reverse and remand (document no. 8) is denied.

The Acting Commissioner’s motion to affirm (document no. 9)

is granted.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

March 23, 2015 cc: Laurie Alice Smith, Esq. D. Lnce Tillinghast, Esq. Robert J. Rabuck, Esq.

15