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Downs v. Colvin

United States District Court, D. New Hampshire

June 8, 2015

Richard L. Downs
Carolyn W. Colvin, Acting Commissioner, Social Security Administration.

ORDER Opinion No. 2015 DNH 113.

LANDYA McCAFFERTY, District Judge.

Pursuant to 42 U.S.C. § 405(g), Richard Downs moves to reverse the Acting Commissioner's decision to deny his application for Social Security disability insurance benefits, or DIB, under Title II of the Social Security Act, 42 U.S.C. § 423, and for supplemental security income, or SSI, under Title XVI, 42 U.S.C. § 1382. The Acting Commissioner, in turn, moves for an order affirming her decision. For the reasons that follow, the decision of the Acting Commissioner, as announced by the Administrative Law Judge ("ALJ") is affirmed.

Standard of Review

The applicable standard of review in this case provides, in pertinent part:

The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive

42 U.S.C. § 405(g) (setting out the standard of review for DIB decisions); see also 42 U.S.C. § 1383(c)(3) (establishing § 405(g) as the standard of review for SSI decisions). However, the court "must uphold a denial of social security... benefits unless the [Acting Commissioner] has committed a legal or factual error in evaluating a particular claim.'" Manso-Pizarro v. Sec'y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (quoting Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).

As for the statutory requirement that the Acting Commissioner's findings of fact be supported by substantial evidence, "[t]he substantial evidence test applies not only to findings of basic evidentiary facts, but also to inferences and conclusions drawn from such facts." Alexandrou v. Sullivan, 764 F.Supp. 916, 917-18 (S.D.N.Y. 1991) (citing Levine v. Gardner, 360 F.2d 727, 730 (2d Cir. 1966)). In turn, "[s]ubstantial evidence is more than [a] mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Currier v. Sec'y of HEW, 612 F.2d 594, 597 (1st Cir. 1980) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). But, "[i]t is the responsibility of the [Commissioner] to determine issues of credibility and to draw inferences from the record evidence. Indeed, the resolution of conflicts in the evidence is for the [Acting Commissioner], not the courts." Irlanda Ortiz v. Sec'y of HHS, 955 F.2d 765, 769 (1st Cir. 1991) (citations omitted). Moreover, the court "must uphold the [Acting Commissioner's] conclusion, even if the record arguably could justify a different conclusion, so long as it is supported by substantial evidence." Tsarelka v. Sec'y of HHS, 842 F.2d 529, 535 (1st Cir. 1988). Finally, when determining whether a decision of the Acting Commissioner is supported by substantial evidence, the court must "review[] the evidence in the record as a whole." Irlanda Ortiz, 955 F.2d at 769 (quoting Rodriguez v. Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981)).


The parties have submitted a Joint Statement of Material Facts (document no. 9). That statement is part of the court's record and will be summarized here, rather than repeated in full.

Before the onset of Downs's alleged disability, he was a line cook at a hotel (1990-2004), a maintenance worker at a ski resort (2004-2011), and a prep cook at a restaurant (2011-2012). At his hearing before the ALJ, Downs testified that he left his job as a prep cook because of problems with his back and hepatitis.

Downs's medical records document diagnoses of and treatment for a variety of physical conditions, along with evaluations of his physical residual functional capacity.[1] However, because Downs's claims of error by the ALJ focus on his mental impairments, the court need not provide a detailed description of his physical impairments. That said, the court notes that Downs's medical records include evidence of: (1) alcohol abuse, see Tr. 484, which Downs denied at his hearing, see Tr. 34; (2) drug abuse, see Tr. 322, 476, 484, 598; and (3) drug-seeking behavior, see Tr. 484, 598-99, 620, 626.

In October of 2005, Downs was referred by New Hampshire Disability Determination Services to Dr. Cheryl Bildner, a clinical psychologist, for an intelligence profile. Dr. Bildner gave the following overview of the results of Downs's intelligence testing:

Mr. Downs was administered eleven subtests of the Wechsler Adult Intelligence Scale for Adults-Third Edition (WAIS-III). The Full Scale Intelligence Quotient (FSIQ) is the aggregate of the Verbal and Performance scores and is considered the most representative estimate of global intellectual functioning. Mr. Downs's cognitive ability is in the Extremely Low range of intellectual functioning, as measured by the WAIS-III. His overall thinking and reasoning abilities exceed those of approximately 1% of adults his age (FSIQ = 63, 95% confidence interval = 60-68). Mr. Downs may experience difficulty in keeping up with his peers in a wide variety of situations that require age appropriate thinking and reasoning abilities.

Administrative Transcript (hereinafter "Tr.") 281. Ultimately, Dr. Bildner diagnosed Downs as having mild mental retardation. She also assessed his then-current level of functioning. With regard to understanding and memory, she wrote:

Mr. Downs exhibited impairment in cognitive capacity. He can perform basic tasks, however, performance would decline with increasing complexity. Some instructions may need to be repeated until concept is fully grasped. Task completion dependent on literacy would also be problematic due to Mr. Down[s]'s impaired literacy skills.

Tr. 283. With regard to social functioning, Dr. Bildner found that "Mr. Downs can interact appropriately and communicate effectively with others." Id. With regard to concentration and task completion, she wrote:

Mr. Downs can sustain adequate attention and concentration, as evidenced by completion of cognitive testing and interview. He can also complete basic tasks. Performance is likely to decline with task complexity and if task completion was dependent on literacy skills.

Id. Finally, with respect to adaptation to work and work-like environments, Dr. Bildner found: "Mr. Downs can make simple decisions. He can maintain a work schedule. He can interact appropriately with his supervisor." Id.

In November of 2005, William Jamieson completed a Psychiatric Review Technique form on Downs, in which he evaluated Downs's mental retardation.[2] With respect to functional limitations, Jamison determined that Downs had no difficulties with maintaining social functioning, mild restrictions with respect to activities of daily living, mild difficulties in maintaining concentration, persistence, or pace, and no extended episodes of decompensation. He also made the following note:

Although claimant does have significant cognitive limitations, he has been able to sustain competitive employment in the past, and there is nothing to suggest any subsequent deterioration. Recent psych CE describes adequate abilities in simple work situations with appropriate supervision.

Tr. 297.

In May of 2013, Dr. Bildner examined Downs and completed a Mental Health Evaluation Report on him for New Hampshire Disability Determination Services. She diagnosed him as suffering from anxiety disorder and gave a "rule-out" diagnosis of borderline intellectual functioning.[3] She reported the following findings with regard to Downs's then-current level of functioning:

Claimant is unable to independently complete activities of daily living. He is currently homeless. He is unable to read or write. He does not have a vehicle and limited access to running water. He is not currently maintaining his hygiene and his clothing is not appropriately laundered.
Claimant is unable to interact appropriately with others. He becomes anxious in large crowds. Claimant is not maintaining his hygiene which will interfere with social functioning. Claimant is able to communicate basic information.
Claimant is able to understand simple instructions. Cognitive limitations exist that will interfere with his ability to understand ...

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