2004 | Cited 0 times | D. Maine | August 25, 2004


This Social Security Disability ("SSD") and SupplementalSecurity Income ("SSI") appeal is based on the plaintiff'sfunctional illiteracy. Specifically, the plaintiff contends thatthe administrative law judge failed to analyze his learningdisability using the required procedure, failed to make aparticularized inquiry about the mental demands of his pastrelevant work, failed to fully develop the record with respect tohis learning disability and adopted improper testimony from avocational expert because functional illiteracy makes anindividual unemployable under the Dictionary of OccupationalTitles. I recommend that the court affirm the commissioner'sdecision. In accordance with the commissioner's sequential evaluationprocess, 20 C.F.R. §§ 404.1520, 416.920; Goodermote v. Secretaryof Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), theadministrative law judge found, in relevant part, that theplaintiff had degenerative disc disease and a learning disorder,impairments that were severe but which did not meet or equal thecriteria of any of the impairments listed in Appendix 1 toSubpart P, 20 C.F.R. Part 404 (the "Listings'), Finding 3, Recordat 17; that he lacked the residual functional capacity to liftand carry more than 50 pounds occasionally or more than 25 poundson a regular basis, to climb, stoop, kneel, crouch or crawl morethan occasionally, to tolerate concentrated exposure tovibration, or to do work which requires the ability to read andwrite, Finding 5, id.; that in his past relevant work as alandscaper/groundskeeper the plaintiff was not required to liftmore than 50 pounds or perform any other tasks which were notwithin his residual functional capacity and that his impairmentstherefore did not prevent him from performing his past relevantwork, Findings 6-7, id.; and that he accordingly had not beenunder a disability, as that term is defined in the SocialSecurity Act, at any time through the date of the decision,Finding 8, id. at 18. The Appeals Council declined to reviewthe decision, id. at 5-7, making it the final determination ofthe commissioner, 20 C.F.R. §§ 404.981, 416.1481; Dupuis v.Secretary of Health & Human Servs., 869 F.2d 622, 623 (1st Cir.1989).

The standard of review of the commissioner's decision iswhether the determination made is supported by substantialevidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Manso-Pizarro v.Secretary of Health & Human Servs., 76 F.3d 15, 16 (1st Cir.1996). In other words, the determination made must be supportedby such relevant evidence as a reasonable mind might accept asadequate to support the conclusion drawn. Richardson v.Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Secretary ofHealth & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981). The administrative judge reached Step 4 of the sequentialreview process, at which stage the claimant bears the burden ofproof of demonstrating inability to return to past relevant work.20 C.F.R. §§ 404.1520(e), 416.920(e); Bowen v. Yuckert,482 U.S. 137, 146 n. 5 (1987). At this step the commissioner mustmake findings of the plaintiff's residual functional capacity andthe physical and mental demands of past work and determinewhether the plaintiff's residual functional capacity would permitperformance of that work. 20 C.F.R. §§ 404.1520(e), 416.920(e);Social Security Ruling 82-62, reprinted in West's SocialSecurity Reporting Service Rulings 1975-1982, at 813.


The plaintiff states in his written submission to this courtthat "[t]he sole issue on appeal arises from the Plaintiff'slearning disorder." Plaintiff's Itemized Statement of Errors(Docket No. 5) at 2. At oral argument, his attorney stated thatthe appeal raises three issues, including a failure to complywith 20 C.F.R. §§ 404.1520a and 416.920a at Step 2, a failure tomake a particularized inquiry into the mental demands of theplaintiff's past relevant work and a failure to order aconsultative psychological examination. It is not necessary toreach any of these claims. The administrative law judge foundthat the plaintiff had not engaged in substantial gainfulactivity since June 5, 2000, Record at 17, the date on which healleged that his inability to work began, id. at 13. The onlyevidence in the record concerning his learning disability is thereport of Michael F. Smyth, Ph.D., a licensed psychologist whoevaluated the plaintiff on February 20, 1995, id. at 172-74,and the testimony of a psychologist who was serving as a medicaladvisor at the hearing, id. at 63-70.

The administrative law judge noted that the plaintiff's"learning disorder did not prevent him from engaging insubstantial gainful activity from 1989 through 2000." Id. at14. The plaintiff's past relevant work as alandscaper/groundskeeper, id. at 17, occurred during thisperiod, id. at 143-50. The learning disability upon which the plaintiff bases this appeal has existedat least since 1995, id. at 172-74, and he has offered noevidence that it has increased in severity since that time. Theplaintiff performed his past relevant work while suffering fromthis learning disability. He cannot be incapable of returning tohis past relevant work due to a limitation that was present whilehe performed that work. Under these circumstances, the plaintiffcannot possibly meet his burden to show that he cannot return tohis former employment because of his learning disability. SeeSantiago v. Secretary of Health & Human Servs., 944 F.2d 1, 5(1st Cir. 1991) ("Where the claimant can still perform thedemands and duties of a former job as []he actually performed it,a finding of non-disability is appropriate. . . . If, assumingthe existence of the limitations as []he describes them, []henonetheless appears to still possess the ability to do that pastwork, [][he is obviously not disabled."); Leavitt v. Apfel, 69Soc.Sec.Rep.Serv. 760, 1999 WL 33117107 (D. Me. May 12, 1999) at*2. Accordingly, it is not necessary to consider any of theplaintiff's allegations of specific errors by the administrativelaw judge in evaluating either his learning disability or therequirements of his past relevant work.


For the foregoing reasons, I recommend that the commissioner'sdecision be AFFIRMED.

1. This action is properly brought under 42 U.S.C. §§ 405(g)and 1383(c)(3). The commissioner has admitted that the plaintiffhas exhausted his administrative remedies. The case is presentedas a request for judicial review by this court pursuant to LocalRule 16.3(a)(2)(A), which requires the plaintiff to file anitemized statement of the specific errors upon which he seeksreversal of the commissioner's decision and to complete and filea fact sheet available at the Clerk's Office. Oral argument washeld before me on August 20, 2004., pursuant to Local Rule16.3(a)(2)(C) requiring the parties to set forth at oral argumenttheir respective positions with citations to relevant statutes,regulations, case authority and page references to theadministrative record.

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