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Debaker v. Commissioner of U.S. Social Security Administration

United States District Court, D. New Hampshire

August 27, 2019

Ethan Samuel Debaker
v.
Commissioner of the U.S. Social Security Administration

          ORDER ON APPEAL

          Joseph N. Laplante, United States District Judge.

         Ethan Samuel Debaker has moved to reverse the Social Security Administration's (“SSA”) decision to deny his application for a period of disability and disability insurance benefits. An administrative law judge (“ALJ”) at SSA found that Debaker, despite severe impairments, retains the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels, subject to certain limitations, and thus is not disabled as defined by the Social Security regulations.[1] See 20 C.F.R. § 404.1505(a). This decision was affirmed by the Appeals Council and thus became the final decision on his application. See Id. § 404.981. Debaker then appealed the decision to this court, which has jurisdiction under 42 U.S.C. § 405(g) (Social Security).

         On appeal, Debaker asserts that the ALJ erred in finding that his impairments did not meet or clear required severity thresholds. See LR 9.1(b). The SSA Commissioner disagrees and has cross-moved for an order affirming the ALJ's decision.[2] See LR 9.1(e). After careful consideration, the court denies Debaker's motion to reverse and grants the Commissioner's cross-motion to affirm the SSA's final decision.

         I. Background

         In April 2018, an ALJ followed the established five-step sequential evaluation process, see 20 C.F.R. § 404.1520, and found that Debaker is not disabled under section 216(i) and 223(d) of the Social Security Act. At step 1, she found that Debaker had not engaged in substantial gainful activity since January 12, 2017.[3] At step 2, she found that Debaker had four severe impairments that significantly limit the ability to perform basic work activities - a speech and language impairment, an unspecified anxiety disorder, attention-deficit hyperactivity disorder (“ADHD”), and a learning disorder.[4]

         At step 3, the ALJ found that Debaker's mental impairments, considered both individually and in combination, did not meet or medically equal the severity criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.[5] In making this determination, she applied the familiar “Paragraph B” criteria and found that Debaker had (1) moderate limitations in understanding, remembering, or applying information; (2) mild limitations in interacting with others; (3) moderate limitations in concentrating, persisting, or maintaining pace; and (4) mild limitations in adapting or managing himself.[6] She then found, on the entire record, that Debaker retains the residual functional capacity “to perform a full range of work at all exertional levels, ” subject to the limitations that he do no more than “uncomplicated tasks” i.e. tasks learnable within 30 days and have access to repeated verbal and written instruction during the learning phase.[7] In reaching this RFC, the ALJ found that although Debaker's symptoms could reasonably be expected to cause his alleged symptoms, the statements concerning the intensity, persistence, and limiting effects of his symptoms were not supported by (and were in conflict with) objective medical and non-medical evidence in the record, including his educational records, neuropsychological evaluations, mental status exams, the expert opinion of the state agent medical consultant - JoAnne Coyle, PhD, and reports about Debaker's aptitude, interest, and daily activities.[8]

         At step 4, the ALJ found that Debaker had no past relevant work.[9] At step 5, she found, based on the testimony of a vocational expert, that Debaker, given his age, education, work experience, and residual functional capacity, can perform jobs that exist in significant numbers in the national economy, including dishwasher, laundry laborer, package sorter, and laundry sorter.[10] Under this framework, the ALJ concluded that a finding of “not disabled” was appropriate.

         II. Applicable legal standard

         In reviewing a challenge of a final determination by the SSA, the court “defer[s] to the Commissioner's findings of fact, so long as they are supported by substantial evidence, ” Ward v. Comm'r of Soc. Sec, 211 F.3d 652, 655 (1st Cir. 2000), that is, “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, ” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotations omitted). “[I]ssues of credibility and the drawing of permissible inference from evidentiary facts are the prime responsibility of the [Commissioner].” Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981) (per curiam). Additionally, “the resolution of conflicts in the evidence and the determination of the ultimate question of disability is for [the ALJ], not for the doctors or for the courts.” Id. (internal quotation marks omitted). Reversal is warranted only if the ALJ committed a legal or factual error in evaluating plaintiff's claim, see Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996) (per curiam) (quoting Sullivan v. Hudson, 490 U.S. 877, 885 (1989)), or if the record contains no “evidence rationally adequate . . . to justify the conclusion” of the ALJ. Roman-Roman v. Comm'r of Soc. Sec, 114 Fed.Appx. 410, 411 (1st Cir. 2004) .

         III. Analysis

         Debaker's appeal primarily focuses on the ALJ's determination that his impairments did not meet or equal the requirements of Listings 12.05 and 12.11 - a determination that Debaker asserts was made in error. These Listings both require:

B. [An] Extreme limitation of one, or [a] marked limitation[11] of two, of the following areas of mental functioning:
1. Understand, remember, or apply information.
2. Interact with others.
3. Concentrate, persist, or maintain pace.
4. Adapt or manage oneself.

20 C.F.R part 404, subpart P, App. 1 § 12.04(B) and 12.06(B). Debaker contends that the ALJ's decision was not supported by substantial evidence and has identified 11 factual findings that he contends were made in error.

         The Commissioner disagrees and notes that it was Debaker's burden - not the ALJ's - to establish that his impairments actually met or equaled the Listing 12.05 or 12.11 requirements, but at the proceedings below, he submitted no medical opinion to support his claim.[12] The Commissioner further contends that, in any case, the ALJ's decision was supported by substantial evidence and that each of Debaker's eleven arguments is incorrect.[13] The court agrees that none of Debaker's claims warrant reversal or remand of this case.

         As an initial matter, the court disregards the perfunctory or underdeveloped arguments raised in Debaker's motion. It is well settled in the First Circuit that litigants may not merely “mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones.” U.S. v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). “[A] litigant has an obligation ‘to spell out its arguments squarely and distinctly,' or else forever hold its peace.” Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988) (quoting Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir.1988)). Debaker's first, second, fifth, and eighth arguments on appeal do not clear this minimal hurdle. These arguments merely consist of quotes of discrete sentences from the ALJ's decision without any further analysis. In addition, they do not cite any conflicting record evidence from which the court could surmise the factual basis for an appellate challenge. These perfunctory arguments are therefore denied as insufficiently developed.

         After deeming such arguments waived, the court turns to Debaker's surviving arguments and finds that they fail to establish that the ALJ's decision warrants reversal or remand. These arguments similarly quote discrete sentences from the ALJ's decision, urging the court to find some error. But unlike Debaker's undeveloped arguments, his surviving arguments provide some additional analysis. The court therefore addresses each of these arguments below, beginning with what Debaker contends is the ALJ's third erroneous finding of fact.

         For his third issue, Debaker challenges the ALJ's finding that his “benign mental status results suggest few significant obstacles to understanding and learning terms, instructions, and procedures”[14] because the ALJ relied on Debaker's office treatment records, but did not reference his educational records, which included additional comprehensive cognitive testing.[15] Debaker does not say how these “unreferenced” records would add or subtract from the ALJ's analysis. Regardless, the ALJ did reference Debaker's cognitive tests elsewhere in her decision, [16] and also gave significant weight to the state agency medical consultant's opinion, which also referenced these tests.[17] The fact that the ALJ did not directly refer to these records to support this particular finding does not suggest that the records were not considered and does not constitute an error warranting remand. See also N.L.R.B. v. Beverly Enterprises-Massachusetts, 174 F.3d 13, 26 (1st Cir. 1999) (explaining that an “ALJ can consider all the evidence without directly addressing in his written decision every piece of evidence submitted by a party”).

         Fourth, Debaker contends that the ALJ erred in finding that “as of January 2017 [he] was participating in all classes without paraprofessional support” because his mother testified, and his speech pathologist noted, that he did utilize such support.[18] This finding does not constitute a reversible error because the ALJ's decision was reasonably supported. See Irlanda Ortiz, 955 F.2d at 769. To support her finding, the ALJ cited Debaker's educational records, which clearly note that as of March 2017, he “participate[d] in all classes with no paraprofessional support.”[19] Even though Debaker's mother testified that Debaker used paraprofessional support throughout high school, the ALJ explained that he gave less weight to such testimony, given doubts about the mother's objectivity and because the testimony conflicted with objective record evidence.[20] Further, the ...


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