Downs v. SSA

                     UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF NEW HAMPSHIRE



Richard L. Downs

   v.                                       Civil No. 14-cv-319-LM
                                            Opinion No. 

Carolyn W. Colvin, Acting
Commissioner, Social
Security Administration



                              O R D E R

    Pursuant to 

(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, 

, and for supplemental security income, or SSI, under Title

XVI, 

.    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
    . . . .

(g) (setting out the standard of review for DIB

decisions); see also 

(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, 

 (1st Cir. 1996) (quoting

Sullivan v. Hudson, 

 (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, 

 (S.D.N.Y. 1991) (citing Levine v. Gardner,

 (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, 

 (1st Cir. 1980) (quoting Richardson v. Perales, 

 (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


                                2
conflicts in the evidence is for the [Acting Commissioner], not

the courts.”   Irlanda Ortiz v. Sec’y of HHS, 

(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, 

 (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, 

 (quoting Rodriguez v. Sec’y of HHS, 

 (1st

Cir. 1981)).

                            Background

    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.




                                 3
     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

     1 “Residual functional capacity,” or “RFC,” is a term of art
that means “the most [a claimant] can still do despite [his]
limitations.” 

(a)(1) & 416.945(a)(1).


                                4
      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.”     

   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.

   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.”      

      In November of 2005, William Jamieson completed a

Psychiatric Review Technique form on Downs, in which he




                                    5
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




     2 “The [psychiatric] review technique is used to rate the
severity of mental impairments at Steps Two and Three of the
sequential evaluation process [described more fully below], and
also serves as the backdrop for the more detailed mental RFC
assessment at Step Four [also described more fully below].”
Littlefield v. Colvin, No. 14-cv-53-LM, 

, at *3
n.5 (D.N.H. Feb. 17, 2015) (quoting Pelletier v. Colvin, C.A.
No. 13–651 ML, 

, at *12 (D.R.I. Jan. 20, 2015)).



                                6
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 more complex and abstract
     information.

     . . . .

     Claimant is unable to sustain attention and
     concentration to complete tasks in a timely manner.
     He is unable to persist at tasks.

     . . . .




     3 “‘Rule-out’ in a medical record means that the disorder is
suspected but not confirmed – i.e., there is evidence that the
criteria for a diagnosis may be met, but more information is
needed in order to rule it out.” Byes v. Astrue, 

,
916 n.3 (8th Cir. 2012) (citing United States v. Grape, 

, 593 n.2 (3d Cir. 2008)).


                                7
    Claimant is unable to manage stress common to a place
    of employment. He is unable to keep a schedule. He
    is unable to interact appropriately with others. He
    is able to make simple decisions.

Tr. 452-53.   Dr. Bildner concluded with the following prognosis:

“Claimant lacks resources to access health care and mental

health services.     Claimant is not currently taking care of

himself.   Return to work in forseable [sic] future is unlikely.”

Tr. 453.

    Also in May of 2013, Dr. Michael Schneider reviewed Downs’s

records and conducted both a psychiatric review technique and an

assessment of Downs’s mental residual functional capacity.      Both

were based upon a diagnosis of anxiety disorder.     As a result of

his psychiatric review technique, Dr. Schneider determined that

Downs had: (1) moderate restrictions in his activities of daily

living; (2) moderate difficulties in maintaining social

functioning; (3) moderate difficulties in maintaining

concentration, persistence or pace; and (4) no repeated episodes

of decompensation.     In his assessment of Downs’s mental residual

functional capacity, Dr. Schneider made a number of more

specific findings.

    With respect to social interaction, Dr. Schneider found

that Downs had: (1) no significant limitations in his abilities

to ask simple questions, request assistance, and get along with

coworkers or peers; and (2) moderate limitations in his



                                   8
abilities to interact appropriately with the general public,

accept instructions and respond appropriately to criticism from

supervisors, maintain socially appropriate behavior, and adhere

to basic standards of neatness and cleanliness.

    With respect to sustained concentration and persistence,

Dr. Schneider found, among other things, that Downs had: (1) no

significant limitations in his abilities to carry out short,

simple instructions, maintain attention and concentration for

extended periods, perform activities within a schedule, maintain

regular attendance, be punctual within customary tolerances, and

make simple work-related decisions; and (2) a moderate

limitation in his ability to sustain an ordinary routine without

supervision.

    Dr. Schneider concluded his assessment of Downs’s mental

RFC with a narrative that includes the following comments:

    For opinions of function, [Dr. Bildner’s report] for
    the most part [was] not consistent with the evidence
    presented. For example, [she] states that the
    claimant is unable to independently complete
    activities of daily living. While this may be true
    for activities that require reading and writing, the
    claimant is able to cook, which is something he has
    done for employment and he does take care of his own
    finances. She also maintains that he is unable to
    interact appropriately with peers and supervisors, yet
    there was nothing in the examination and his
    interactions with her that would suggest this.
    Therefore, those opinions are not given any weight.

    The claimant does have a severe impairment, which does
    not currently meet or equal listing levels. Despite
    the claimant’s impairment, he remains capable of


                                9
    understanding, remembering and carrying out short and
    simple, orally presented instructions without special
    supervision. For anything requiring reading and
    writing, he would need special supervision. He is
    able to maintain adequate attention for these kinds of
    instructions and complete a normal eight hour workday
    and 40 hour work week. The claimant is able to
    interact appropriately with peers and supervisors only
    in an environment where he avoids the general public,
    work environments that would require interaction with
    large numbers of people and where the supervisory
    criticism is not overly critical of his performance.
    [sic] Under those conditions, he is able to
    accommodate to changes in a work setting.

Tr. 72.

    After conducting a hearing, the ALJ issued a decision that

includes the following relevant findings of fact and conclusions

of law:

    3. The claimant has the following severe impairments:
    Diabetes Mellitus, degenerative disc disease of the
    lumbar spine, Hepatitis C/chronic liver disease,
    obesity, borderline intellectual functioning and
    Anxiety Disorder (20 CFR 404.1520(c) and 416.920(c)).

    . . . .

    4. The claimant does not have an impairment or
    combination of impairments that meets or medically
    equals the severity of one of the listed impairments
    in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
    404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925,
    and 416.926).

    . . . .

    5. After careful consideration of the entire record,
    I find that the claimant has the residual functional
    capacity to perform light work as defined in 20 CFR
    404.1567(b) and 416.967(b) except he can occasionally
    climb, balance, stoop, crouch, and crawl. The
    claimant is limited to simple unskilled work, is able
    to maintain attention and concentration for two-hour


                               10
     increments throughout an 8-hour day, should avoid
     social interaction with the general public, but can
     sustain brief and superficial social interaction with
     co-workers and supervisors.

     . . . .

     6. The claimant is unable to perform any past
     relevant work (20 CFR 404.1565 and 416.965).

     . . . .

     10. Considering the claimant’s age, education, work
     experience, and residual functional capacity, there
     are jobs that exist in significant numbers in the
     national economy that the claimant can perform (20 CFR
     404.1569, 404.1569(a), 416.969, and 416.969(a)).

Tr. 11, 12-13, 14, 20, 21.   Based upon his assessment of Downs’s

residual functional capacity, and a hypothetical question posed

to a vocational expert (“VE”) that incorporated the RFC recited

above, the ALJ determined that Downs was able to perform the

jobs of flower-care worker in a greenhouse setting, office

cleaner, and price marker.   At the hearing, and in response to a

question from the ALJ, the VE testified that if the hypothetical

were amended to include an inability “to follow or understand

even simple instructions without special accommodations,”4 Tr.

49, that limitation “would eliminate the ability to sustain any

work,” 

   Similarly, in response to a question from Downs’s


     4 It is not at all clear that such a limitation is supported
anywhere in the record. Even Dr. Bildner’s 2013 report, which
includes the psychological opinion most favorable to Downs,
describes him as “able to understand simple instructions,” Tr.
453, and does not describe him as unable to follow such
instructions.


                                11
attorney, the VE testified that the ability to sustain any work

would also be precluded by an inability to keep a schedule and

an inability to sustain attention and concentration to complete

tasks in a timely manner.    See id. at 50.


                             Discussion

    A. The Legal Framework

    To be eligible for disability insurance benefits, a person

must: (1) be insured for such benefits; (2) not have reached

retirement age; (3) have filed an application; and (4) be under

a disability.   

(a)(1)(A)-(D).    To be eligible

for supplemental security income, a person must be aged, blind,

or disabled, and must meet certain requirements pertaining to

income and assets.    

(a).    The question in this

case is whether Downs was under a disability from January 1,

2013 through the date of the ALJ’s decision.

    For the purpose of determining eligibility for disability

insurance benefits,

    [t]he term “disability” means . . . inability to
    engage in 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.

(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A)

(setting out a similar definition of disability for determining

eligibility for SSI benefits).   Moreover,


                                 12
    [a]n individual shall be determined to be under a
    disability only if his physical or mental impairment
    or impairments are of such severity that he is not
    only unable to do his previous work but cannot,
    considering his age, education, and work experience,
    engage in any other kind of substantial gainful work
    which exists in the national economy, regardless of
    whether such work exists in the immediate area in
    which he lives, or whether a specific job vacancy
    exists for him, or whether he would be hired if he
    applied for work. . . .

(d)(2)(A) (pertaining to DIB benefits); see also

42 U.S.C. § 1382c(a)(3)(B) (setting out a similar standard for

determining eligibility for SSI benefits).

    To decide whether a claimant is disabled for the purpose of

determining eligibility for either DIB or SSI benefits, an ALJ

is required to employ a five-step process.   See 

 (DIB) and 416.920 (SSI).

    The steps are: 1) if the [claimant] is engaged in
    substantial gainful work activity, the application is
    denied; 2) if the [claimant] does not have, or has not
    had within the relevant time period, a severe
    impairment or combination of impairments, the
    application is denied; 3) if the impairment meets the
    conditions for one of the “listed” impairments in the
    Social Security regulations, then the application is
    granted; 4) if the [claimant’s] “residual functional
    capacity” is such that he or she can still perform
    past relevant work, then the application is denied; 5)
    if the [claimant], given his or her residual
    functional capacity, education, work experience, and
    age, is unable to do any other work, the application
    is granted.

Seavey v. Barnhart, 

 (1st Cir. 2001) (citing 

).




                               13
    The claimant bears the burden of proving that he is

disabled.   See Bowen v. Yuckert, 

 (1987).    He

must do so by a preponderance of the evidence.   See Mandziej v.

Chater, 

 (D.N.H. 1996) (citing Paone v.

Schweiker, 

) (D. Mass. 1982)).    However,

    [o]nce the [claimant] has met his or her burden at
    Step 4 to show that he or she is unable to do past
    work due to the significant limitation, the
    Commissioner then has the burden at Step 5 of coming
    forward with evidence of specific jobs in the national
    economy that the [claimant] can still perform. Arocho
    v. Sec’y of Health & Human Servs., 

    (1st Cir. 1982). If the [claimant’s] limitations are
    exclusively exertional, then the Commissioner can meet
    her burden through the use of a chart contained in the
    Social Security regulations. 

;
    Medical-Vocational Guidelines, 20 C.F.R. pt. 404,
    subpt. P, App. 2, tables 1-3 (2001), cited in 

; Heckler v. Campbell, 

    (1983). “The Grid,” as it is known, consists of a
    matrix of the [claimant’s] exertional capacity, age,
    education, and work experience. If the facts of the
    [claimant’s] situation fit within the Grid’s
    categories, the Grid “directs a conclusion as to
    whether the individual is or is not disabled.” 20
    C.F.R. pt. 404, subpt. P, App. 2, § 200.00(a), cited
    in 

.

Seavey, 

 (parallel citations omitted).   Finally,

    [i]n assessing a disability claim, the [Acting
    Commissioner] considers objective and subjective
    factors, including: (1) objective medical facts; (2)
    [claimant]’s subjective claims of pain and disability
    as supported by the testimony of the [claimant] or
    other witness; and (3) the [claimant]’s educational
    background, age, and work experience.




                                14
Mandziej, 

 (citing Avery v. Sec’y of HHS, 

 (1st Cir. 1986); Goodermote v. Sec’y of HHS, 

 (1st Cir. 1982)).


     B. Downs’s Claims

     Downs claims that the ALJ’s assessment of his RFC is not

supported by substantial evidence and that the jobs identified

by the VE, at step five, require abilities that he does not

have.   The court considers each argument in turn.


          1. RFC

     The court begins by noting that Downs’s first claim is

nearly devoid of a legal argument.    Rather, it consists almost

exclusively of a list of subjective complaints, diagnoses, and

treatments presented without any reference to relevant legal

principles or any actual reasoning.    That list does not merit

the court’s attention.   See Kalantzis v. U.S. Soc. Sec. Admin.,

Comm’r, No. 13-cv-12-JL, 

, at *3 (D.N.H. Feb. 10,

2014) (citing Montero v. Colvin, No. 12-cv-412-JL, 

, at *1 n.1 (D.N.H. Aug. 8, 2013); see also Dawes v.

Astrue, No. 1:11-cv-272-DBH, 

, at *7 (D. Me. Mar.

30, 2012)).

     However, notwithstanding the substantial underdevelopment

of Downs’s first claim, the court is able to discern the hint of

one cognizable argument, i.e., that the ALJ erred by crediting



                                15
the opinion of a nonexamining medical source (Dr. Schneider)

over the opinion of an examining medical source (Dr. Bildner)

with respect to Downs’s abilities to maintain a schedule and

sustain attention and concentration to complete tasks in a

timely manner.   Dr. Schneider opined that Downs had those

abilities.   See Tr. 71.   Dr. Bildner opined that he did not.

See Tr. 453.

    The applicable Social Security regulations define “medical

opinions” as “statements from physicians and psychologists . . .

that reflect judgments about the nature and severity of [a

claimant’s] impairment(s), including . . . [his] symptoms,

diagnosis and prognosis, what [he] can still do despite [his]

impairment(s), and [his] physical and mental restrictions.”      

(a)(2) & 416.927(a)(2).   However, a doctor’s

recording of a claimant’s “complaints in his notes does not

convert [those] subjective complaints . . . into medical

opinion, thus entitling [them] to some measure of deference.”

Ford v. Barnhart, No. 04-CV-194-PB, 

, at *8

(D.N.H. July 7, 2005) (citing 

(a)(2),

404.1527(d), 416.927(a)(2) & 416.927(d)).   Similarly,

“subjective complaints are not entitled to greater weight simply

because they appear in [a] physician’s notes.”   

 (citing

Craig v. Chater, 

, 590 n.2 (4th Cir. 1996)).




                                 16
    Generally speaking, Social Security decision makers “give

more weight to the opinion of a source who has examined [a

claimant] than to the opinion of a source who has not examined

[him].”   

(c)(1) & 416.927(a)(1).   However,

just as an ALJ may properly decline to give controlling weight

to the opinion of a treating source, see, e.g., Bourinot v.

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

 (D.

Mass. Mar. 30, 2015) (citing Arroyo v. Sec’y of Health & Human

Servs., 

 (1st Cir. 1991)), an ALJ may also

discount the weight given to the opinion of an examining source

in favor of the opinion of a nonexamining source.

    When determining the weight to give to a medical opinion,

the ALJ must consider the nature of the relationship between the

medical source and the claimant, the supportability of the

opinion, the consistency of the opinion with the record as a

whole, whether the source of the opinion is a specialist, and

other factors.   See 

(c) & 416.927(c).    With

regard to supportability, the regulations explain:

    The more a medical source presents relevant evidence
    to support an opinion, particularly medical signs and
    laboratory findings, the more weight we will give that
    opinion. The better an explanation a source provides
    for an opinion, the more weight we will give that
    opinion. Furthermore, because nonexamining sources
    have no examining or treating relationship with [a
    claimant], the weight we will give their opinions will
    depend on the degree to which they provide supporting
    explanations for their opinions. We will evaluate the
    degree to which these opinions consider all of the


                                17
    pertinent evidence in [a] claim, including opinions of
    treating and other examining sources.

(c)(3) & 416.927(c)(3).

    The ALJ explained his decision to discount Dr. Bildner’s

opinion this way:

    [H]er opinion that the claimant is unable to
    independently complete activities of daily living is
    unsupported by any medical signs concerning mental
    impairments, and instead she identified his selfreported history that he is homeless, unable to read
    or write, does not have a vehicle, and has limited
    access to running water. These are not work-related
    functional limitations related to a diagnosed
    impairment. She further opined that he is unable to
    interact appropriately with others, and is unable to
    sustain concentration persistence and pace; however,
    this is primarily all based on the claimant’s selfreported symptoms, and does not address how
    polysubstance abuse may affect these functions.
    Additionally these opinions are inconsistent with
    ongoing medical exam reports that identify minor or no
    limitations. Further supporting little weight for
    [Dr. Bildner]’s opinion is that, as an examining
    psychologist, her conclusions are based on this one-time exam, and her report does not indicate she
    reviewed the longitudinal record.

Tr. 20.   The ALJ explained his decision to give Dr. Schneider’s

opinion great weight this way:

    I considered and gave great weight to the opinion of
    state Disability Determination Services (DDS)
    [psychologist] Michael Schneider, Psy.D., who opined
    that the claimant is capable of understanding,
    remembering, and carrying out short and simple, orally
    presented instructions without special supervision;
    and can maintain adequate attention for these kinds of
    instructions and complete a normal workday and week.
    . . . He is able to interact appropriately with peers
    and supervisors, and where the supervisory criticism
    is not overly critical of his performance. I give
    great weight to this opinion because it is consistent


                                 18
     with the claimant’s activities and physical exam notes
     that indicate some cognitive limitations.

Tr. 19-20 (citation to the record omitted).

     The court begins by noting that there are aspects of the

ALJ’s analysis that cause concern.   Several of the criticisms he

directs toward Dr. Bildner’s opinion apply with equal force to

Dr. Schneider’s opinion.   For example, neither one addresses the

effect of polysubstance abuse on Downs’s functional capacity.

And, while Dr. Bildner’s 2013 report does not indicate that she

reviewed Downs’s longitudinal record,5 Dr. Schneider’s assessment

does not indicate that he reviewed any part of Downs’s

longitudinal record other than Dr. Bildner’s 2013 report.6    In

addition, while the ALJ discounted Dr. Bildner’s conclusions

because they were based upon a one-time examination, Dr.

Schneider did not examine Downs at all, and the ALJ does not

explain how no examination provides more reliable evidence than

one exam.   Dr. Bildner saw Downs; Dr. Schneider saw Dr.

Bildner’s report.   Based upon the foregoing, if the ALJ’s


     5 For what it is worth, Dr. Bildner herself was the author
of one key piece of the longitudinal record, i.e., the
intelligence profile she completed in October of 2005.

     6 Moreover, while Dr. Bildner’s 2013 report does not
indicate that she reviewed her 2005 intelligence profile of
Downs, it is interesting to note that in 2013, Dr. Bildner did
not explain why she changed her mind with regard to Downs’s
abilities to maintain a schedule and sustain concentration and
attention, abilities she said he had in 2005, but said he lacked
in 2013.


                                19
decision were subject to de novo review, the court might be

inclined to remand this case.

    But conflicts in the evidence, such as the difference of

opinion between Dr. Bildner and Dr. Schneider (and the

difference of opinion between Dr. Bildner’s 2005 intelligence

profile and her 2013 report), are for the Acting Commissioner to

resolve, not the court.   See Irlanda Ortiz, 

.

And this court is not permitted to substitute its judgment for

that of the ALJ so long as the ALJ’s decision is supported by

substantial evidence.   See Tsarelka, 

.   The

substantial evidence supporting the ALJ’s decision to discount

Dr. Bildner’s opinion is embodied in his cogent observations

that: (1) Dr. Bildner’s opinion depends far more on Downs’s

reports to her about his living conditions than it depends on

her identification of functional limitations resulting from his

mental impairments, see Ford, 

, at *8

(distinguishing between a claimant’s reports to a medical source

and a medical opinion); and (2) the functional limitations Dr.

Bildner identified are not supported by the medical evidence.

With respect to the ALJ’s second observation, the court notes

several inconsistencies in Dr. Bildner’s 2013 report: (1) Dr.

Bildner opined that Downs was “unable to keep a schedule,” Tr.

453, but under the heading “mental status examination,” reported

that he arrived for his appointment on time, after a drive of


                                20
several hours in a borrowed vehicle, see Tr. 451; and (2) Dr.

Bildner opined that Downs “was unable to sustain attention and

concentration to complete tasks in a timely manner,” Tr. 453,

but under the heading “mental status examination,” reported that

Downs’s “[a]ttention and concentration were fair,” Tr. 451-52.

Finally, the court notes that as between Dr. Bildner and Dr.

Schneider, Dr. Schneider offers the more detailed and persuasive

explanation for his opinion, which bolsters its supportability.

See 

(c)(3) & 416.927(c)(3).

    To be sure, there are cases that merit remand because of

the manner in which an ALJ “ascribe[d] more weight to the

opinions of non-treating, non-examining [medical sources] than

those of examining medical professionals.”   Hainey v. Colvin,

No. 14-cv-144-SM, 

, at *6 (D.N.H. Dec. 5, 2014).

Hainey was such a case; this one is not.   In Hainey, Judge

McAuliffe remanded because he determined that: (1) “the ALJ may

have misunderstood claimant’s current activities of daily living

[and] relied on incorrect or no longer applicable facts,” id. at

*5; and (2) the ALJ relied upon a lack of mental-health

treatment that was “far more likely explained by claimant’s lack

of health insurance and limited access to health care than by

the absence of a treatable problem,” id.   This case does not

involve any error such as the ones described in Hainey, but




                               21
rather, the ALJ’s adequately supported decision to resolve a

conflict in the evidence.

     To sum up, the ALJ’s decision to credit Dr. Schneider’s

opinion over Dr. Bildner’s opinion provides no basis for the

remand Downs seeks.


          2. Step Five

     Downs also claims that the ALJ’s step-five determination

that he can perform the jobs of flower-care worker, office

cleaner, and price marker is not supported by substantial

evidence because his low IQ and his inability to read preclude

him from meeting the general educational development (“GED”)

requirements established for those jobs in the Dictionary of

Occupational Titles (“DOT”).7   The court does not agree.

     Each job listed in the DOT carries with it a set of three

GED requirements, one each for reasoning development,

mathematical development, and language development.   In each

area of development, the DOT rates the level required for any

particular job on a scale of one through six, with one being the



     7 “The Dictionary of Occupational Titles (DOT) is ‘a
publication of the United States Department of Labor that
contains descriptions of the requirements for thousands of jobs
that exist in the national economy.’” Frasier v. Colvin, No.
9:12-cv-01947-DCN, 

, at *20 n.17 (D.S.C. Feb. 10,
2014) (quoting Burns v. Barnhart, 

 (3d Cir.
2002)).



                                22
lowest.   Two of the three jobs identified by the VE, flower-care

worker8 and office cleaner,9 require the lowest level of

development in each of the three relevant areas.     In the area of

reasoning development, level one requires a person to “[a]pply

commonsense understanding to carry out simple, one- or two-step

instructions [and] [d]eal with standardized situations with

occasional or no variables in or from these situation

encountered on the job.”   DOT, Vol. II, at 1011 (4th ed. 1991).

In the area of language development, level one requires a person

to have, among other things, the ability to “[r]ecognize [the]

meaning of 2,500 (two- or three-syllable) words [and] [r]ead at

a rate of 95-120 words per minute.”     

     Downs claims that the ALJ committed reversible error by

determining that he could perform jobs requiring level-one

reasoning development without factoring in his low IQ and his

diagnosis of mental retardation.     Because there is evidence in

the record that Downs has the mental RFC to carry out very short

and simple instructions, and no evidence to the contrary, his

argument based upon his level of reasoning development is

unavailing.   Consequently, the ALJ did not err by relying upon



     8 The job the VE called “flower-care worker” is listed in
the DOT as “flower picker,” occupation no. 405.687-010.

     9 The job the VE called “office cleaner” is listed in the
DOT as “cleaner, housekeeping,” occupation no. 323.687-014.


                                23
the VE’s testimony that Downs was capable of performing the jobs

of flower-care worker and office cleaner, each of which requires

only level-one reasoning development.

    Downs’s stronger claim is that his inability to read

precludes him from performing jobs requiring level-one language

development.   While that argument has some surface appeal, it

ultimately fails for several reasons.

    First, while Downs now claims an inability to perform any

job requiring level-one language development, his employment

record shows that: (1) he worked for approximately seven years

as a maintenance worker (listed in the DOT as “janitor,”

occupation no. 382.664-010), a job requiring level-three

language development (and level-three reasoning development);

and (2) he worked for two years as a prep cook (listed in the

DOT as “cook helper,” occupation no. 317.687-010), a job

requiring level-one language development (and level-two

reasoning development).   Thus, as a factual matter, there is no

basis for Downs’s current claim that his inability to read

renders him incapable of performing jobs requiring level-one

language development.   See Donahue v. Barnhart, 

 (7th Cir. 2002) (noting illiterate claimant’s previous

employment of 23 years and pointing out that “[i]lliteracy is

not a progressive disease”); Warf v. Shalala, 

 (W.D. Va. 1994) (rejecting claimant’s argument that


                                24
illiteracy precluded him from performing job identified by VE

that required level-one language development and pointing out

that the claimant had previously held a job requiring level-two

language development).

      Second, as a purely legal matter, this court is persuaded

by both the decisional law and the relevant Social Security

regulations that illiteracy is not a categorical bar to the

performance of jobs requiring level-one language development.

As Judge Whipple has explained:

      Every job in the DOT has a Language Development level.
      Level 1 is the lowest Language Development level used
      in the DOT. A decision holding that illiterate
      individuals could not perform Level 1 jobs would mean
      that illiteracy was a per se disability under the DOT.
      Illiterate people would not qualify to work any job
      listed in the DOT. The Court believes that such a
      holding is illogical and would directly contradict the
      Social Security regulations.

Lawson v. Apfel, 

 (W.D. Mo. 1998).      The

court held that belief because the Medical-Vocational

Guidelines, 

, Subpt. P, App. 2, describe several

circumstances under which persons who are illiterate or unable

to communicate in English are not deemed to be disabled.10     See

   In short, this court joins with Judge Whipple and Judge



       For example, a younger individual (18-44), who is capable
      10

of only sedentary work, is illiterate, and who has no previous
work experience or experience in unskilled work, is considered
to be not disabled under the Medical-Vocational Guidelines. See

, Subpt. P, App. 2, Rule 201.23.


                                  25
Williams, both of whom have rejected the proposition that

illiteracy is a per se bar to performing any of the jobs listed

in the DOT.    See id.; Warf, 

 (“to hold that

the DOT ‘definitional requirements’ [which include the GED

ratings] are binding on the ALJ would lead to the absurd result

of rendering anyone who is illiterate unqualified and unable to

perform any of the jobs in the DOT”).

    Based upon both Downs’s own employment history and the

legal analysis described above, the court concludes that the ALJ

did not err by relying upon the VE’s testimony that Downs was

capable of performing the jobs of flower-care worker and office

cleaner, each of which requires only level-one language

development.

    The bottom line is this.     The VE testified that Downs could

perform two jobs requiring the lowest levels of reasoning,

language, and mathematical development.   The ALJ had no basis to

determine that Downs did not meet those GED requirements.    Thus,

the ALJ permissibly relied upon the VE’s testimony that Downs

was capable of flower-care work and office cleaning.    Because

“‘[a] single occupation is sufficient to meet the commissioner’s

burden’ at Step 5 of the evaluation process,” McGrath v. Astrue,

No. 10-cv-455-JL, 

, at *10 (D.N.H. Mar. 22, 2012)

(quoting Welch v. Barnhart, No. 02-247-P-C, 

, at

*4 (D. Me. Oct. 31, 2003)), the ALJ’s step-five determination


                                 26
provides no basis for remand, and the court need not consider

whether Downs is capable of performing the job of price marker

(occupation no. 209.587-034), which requires level-two reasoning

development.


                            Conclusion

      Because the ALJ has committed neither a legal nor a factual

error in evaluating Downs’s claim, see Manso-Pizarro, 76 F.3d at

16, his motion for an order reversing the Acting Commissioner’s

decision, document no. 7, is denied, and the Acting

Commissioner’s motion for an order affirming her decision,

document no. 11, is granted.   The clerk of the court shall enter

judgment in accordance with this order and close the case.

      SO ORDERED.



                               __________________________
                               Landya McCafferty
                               United States District Judge


June 8, 2015

cc:   Christine Woodman Casa, Esq.
      T. David Plourde, Esq.




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