Debaker v. US Social Security Administration, Acting Commissioner

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Ethan Samuel Debaker
v. Civil No. 19-cv-107-JL
Opinion No. 2019 DNH 137
Commissioner of the
U.S. Social Security Administration
ORDER ON APPEAL
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
1 Pl. Mot. for Order Reversing Decision (doc. no 7).
Case 1:19-cv-00107-JL Document 9 Filed 08/27/19 Page 1 of 18

2
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.
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
2 Doc. no. 8.
3 Admin. R. at 15.
4 Id.
Case 1:19-cv-00107-JL Document 9 Filed 08/27/19 Page 2 of 18

3
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
5 Id. at 15-20.
6 Id. at 17-18.
7 Id. at 17.
Case 1:19-cv-00107-JL Document 9 Filed 08/27/19 Page 3 of 18

4
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.
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
8 Id. at 19-20.
9 Id. at 21-22.
10 Id. at 21.
Case 1:19-cv-00107-JL Document 9 Filed 08/27/19 Page 4 of 18

5
[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).
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
limitation11 of two, of the following areas of mental
functioning:
11 A “marked limitation” means that claimant’s “functioning in
this area independently, appropriately, effectively, and on a
sustained basis is seriously limited.” 20 C.F.R. part 404,
subpart P, App. 1 § 12.00(F)(2)(d).
Case 1:19-cv-00107-JL Document 9 Filed 08/27/19 Page 5 of 18

6
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
12 Def. Mot. to Affirm Mem. (doc. no. 8-1) at 3-4.
13 Id. at 4-11.
Case 1:19-cv-00107-JL Document 9 Filed 08/27/19 Page 6 of 18

7
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.
Case 1:19-cv-00107-JL Document 9 Filed 08/27/19 Page 7 of 18

8
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
14 Admin. R. at 16.
15 Pl. Mot. to Reverse Mem. (doc. no. 7-2) at 7.
16 See Admin. R. at 18 (“Educational records document that the
claimant’s cognitive function, while diminished, is not so
functionally limiting, that he would be unable to work. . . .
[(further discussing test scores)]”).
17 See id. at 69; see also id. at 19 (giving opinion “significant
weight because the medical evidence of record supports the
limitations she assessed and were consistent with and supported
by the objective clinical findings discussed within” the ALJ’s
decision).
Case 1:19-cv-00107-JL Document 9 Filed 08/27/19 Page 8 of 18

9
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 ALJ’s finding did not conflict with the
18 Pl. Mot. to Reverse Mem. (doc. no. 7-2) at 7 (quoting Admin.
R. at 16).
19 Admin. R. at 375.
20 Admin. R. at 20. As discussed below, the ALJ committed no
reversible error by giving little weight to a family member’s
“hardly neutral” testimony. See Tremblay v. Sec’y of Health and
Human Servs., 676 F.2d 11, 13 (1st Cir. 1982). And even if the
ALJ gave improper weight to the mother’s testimony, it is the
Case 1:19-cv-00107-JL Document 9 Filed 08/27/19 Page 9 of 18

10
speech pathologist’s evaluation because the pathologist made
observations about Debaker’s education based on records that
predated the more recent educational records cited by the ALJ.21
Fifth, Debaker merely notes that despite the ALJ’s finding
that “[h]is IQ was in the low average range with strong verbal
comprehension skills,” an evaluator “also noted that he had
extreme deficits in other areas.”22 As discussed above, the
court denies this perfunctory argument as insufficiently
developed. And even if the court considered this argument, it
would not be meritorious, as the ALJ was not required to discuss
all of Debaker’s test scores. See Beverly Enterprises-
Massachusetts, 174 F.3d at 26.
Sixth, Debaker asserts that the ALJ erred by not explaining
how his aptitude test results supported her finding that he has
“no more than moderate restrictions in understanding,
remembering, or applying information.”23 The court disagrees.
Debaker’s aptitude profile served as support for several
findings underlying the ALJ’s determination regarding his
ALJ’s province to resolve conflicts between that testimony and
other evidence in the record. See Rodriguez, 647 F.2d at 222.
21 See Admin. R. at 375.
22 Pl. Mot. to Reverse Mem. (doc. no. 7-2) at 4 (quoting Admin.
R. at 16).
23 Pl. Mot. to Reverse Mem. (doc. no. 7-2) at 4 (quoting Admin.
R. at 16).
Case 1:19-cv-00107-JL Document 9 Filed 08/27/19 Page 10 of 18

11
limitations in this area, including the findings that his
“cognitive functioning is intact with little evidence of
significant learning, memory, or generalized information
processing deficits” and that his “I.Q. was in the low average
range with strong verbal comprehension skills.”24 In any case,
even if the court disregarded Debaker’s aptitude profile,
Dr. Coyle’s medical opinion would still support the ALJ’s
finding of moderate limitations. Dr. Coyle similarly concluded
that Debaker has moderate limitations in understanding,
remembering, and applying information. As such, the ALJ’s
“moderate limitations” finding would remain supported by
substantial evidence in the record.
Seventh, Debaker contends that the ALJ did not have
adequate record support to find that he has a mild limitation in
interacting with others.25 The ALJ supported this finding by
citing the office treatment notes of Debaker’s counselor.
Debaker asserts that this was inadequate, as “[t]here is simply
no comparison between the limited (visits average 15-20 minutes)
supportive environment of a counselor’s office and a full-time
competitive work environment.”26 This may well be true. In a
24 Admin. R. at 16.
25 Pl. Mot. to Reverse Mem. (doc. no. 7-2) at 4-5 (quoting Admin.
R. at 16).
26 Id. at 16.
Case 1:19-cv-00107-JL Document 9 Filed 08/27/19 Page 11 of 18

12
similar vein, the nature of judicial review typically grants
judges a limited perspective into a claimant’s full experience.
But Debaker points to no other evidence in the record suggesting
that his behavior during these visits did not represent his
expected performance in an actual work environment. In
contrast, the record contains several examples where Debaker
related well to his medical providers.27 These examples are
probative as to his ability to interact with others. See
Raymond v. Colvin, No. 12-374, 2014 WL 424156, at *8 (D. Me.
Feb. 4, 2014) (Singal, J.) (holding that an ALJ was allowed to
consider the claimant’s ability to interact successfully with
doctors in evaluating his social functioning). In addition, the
ALJ observed Debaker’s social abilities first-hand during the
arguably more stressful setting of an administrative hearing on
the merits of his application. As such, the court cannot fault
the ALJ for finding a moderate limitation in this area and finds
that a reasonable mind could accept the evidence before the ALJ
as adequate to support the ALJ’s conclusion.
Eighth, Debaker asserts simply that “[t]he ALJ cited no
records or testimony to support” her finding of “moderate
27 See, e.g., Admin. R. at 360 (“it’s been a pleasure to see how
he has matured into a kind, compassionate and polite young
man”); id. at 361 (“Ethan, as always, was very polite and
respectful”).
Case 1:19-cv-00107-JL Document 9 Filed 08/27/19 Page 12 of 18

13
limitations in concentrating, persisting, or maintaining pace.”28
As noted above, Debaker failed to develop this argument by
failing to explain why the ALJ’s finding was in error.
Regardless, the ALJ clearly supported this topic-sentence
conclusion with the subsequent verbiage in her decision
referencing Debaker’s mental status examinations. Debaker also
challenges these very subsequent findings as his ninth argument
on appeal, discussed immediately below.
Ninth, Debaker asserts that the ALJ erred in finding “he is
consistently fully oriented and cognitively intact” and has
“sufficient attention/concentration abilities to work at an
appropriate and reasonable pace while completing tasks in a
timely manner” because the two pages of education records cited
by the ALJ conflict with other educational records evidencing
asocial or impulsive behaviors.29 This does not constitute a
reversible error. Again, it is the ALJ’s province, not the
reviewing court’s, to resolve conflicts in the evidence. See
Ortiz v. Sec’y of Health and Human Servs., 955 F.2d 765, 769
(1st Cir. 1991). Reversal is warranted only if the ALJ
committed a legal or factual error in evaluating plaintiff’s
28 Pl. Mot. to Reverse Mem. (doc. no. 7-2) at 5 (quoting Admin.
R. at 16).
29 Pl. Mot. to Reverse Mem. (doc. no. 7-2) at 5 (quoting Admin.
R. at 16).
Case 1:19-cv-00107-JL Document 9 Filed 08/27/19 Page 13 of 18

14
claim, or if the record contains no “evidence rationally
adequate . . . to justify the conclusion” of the ALJ. Roman–
Roman, 114 Fed. Appx. at 411. Here, the ALJ’s finding is
supported by the opinion of Dr. Coyle, who after considering
Debaker’s extensive educational record, similarly determined
that Debaker has no more than a moderate limitation in
concentrating, persisting, or maintaining pace.30 Although other
non-expert statements in the record describe Debaker as engaging
in abnormal behaviors, it is unclear (and never stated clearly
by Debaker) how these behaviors would compel a finding that he
has more than a moderate limitation in this area. Accordingly,
the ALJ’s finding must be upheld.
Tenth, Debaker challenges the ALJ’s finding that
“vocational testing documents showed that all [Debaker’s]
aptitudes were within normal ranges,” as no expert opined as to
whether his results were within normal ranges.31 The testing
documents provided that “[s]cores between 80 and 120 can be
thought of as ‘in the average range,’” and Debaker’s scores all
fell within this range.32 An expert opinion was not necessary to
30 Admin. R. at 69.
31 Pl. Mot. to Reverse Mem. (doc. no. 7-2) at 5-6 (quoting Admin.
R. at 119).
32 See Admin R. at 271 (describing test results and displaying a
diagram showing how Debaker’s results compared to the average
range).
Case 1:19-cv-00107-JL Document 9 Filed 08/27/19 Page 14 of 18

15
make common sense judgments about such clearly explained test
results. See Manso-Pizarro, 76 F.3d at 17. As such, the above
finding does not constitute a reversible error.
Eleventh, Debaker contends that there is inadequate
evidence in the record to support the ALJ’s findings about his
ability to perform simple work tasks on a consistent basis.33
Although Debaker is correct that some of ALJ’s minor findings
lack clear support in Debaker’s hearing testimony (e.g. no
testimony that he can order a pizza), the ALJ’s broader
determination about Debaker’s ability to perform simple level
job tasks still remains supported by substantial evidence in the
record. Of particular note, Dr. Coyle also opined that Debaker
could sustain attention and concentration for simple tasks and
maintain effort for two-hour periods over the course of an
eight-hour workday and standard work week.34 Moreover, Debaker’s
testimony about his actual daily activities, such as giving his
dog daily insulin shots, supports the ALJ’s ultimate
determination that his functionality was greater than initially
33 Pl. Mot. to Reverse Mem. (doc. no. 7-2) at 5-6 (quoting Admin.
R. at 19 (“[Debaker] can cook and take care of his dogs,
including administering an insulin shot on a daily basis. He
can mow the lawn, order a pizza, shoot firearms and operate a
weed whacker, demonstrating his ability for simple level job
tasks.”)).
34 Admin. R. at 71.
Case 1:19-cv-00107-JL Document 9 Filed 08/27/19 Page 15 of 18

16
alleged.35 See Waitt v. Astrue, No. 11-10569, 2012 WL 2343440,
at *14 (D. Mass. June 19, 2012) (Woodlock, J.) (explaining that
while daily activities do not themselves show an ability to
work, they can be used to support credibility determinations
about a claimant’s ability to concentrate and follow through on
tasks).
Debaker also asserts that the ALJ erred by discounting his
mother’s non-medical opinions due to concerns about her being an
“entirely objective reporter.”36 Further, he advances that the
ALJ should have credited his mother’s testimony just as she
would credit the testimony of a treating physician because his
mother has known him for all of his life. Debaker cites no
authority for such a bold proposition. Regardless, his proposal
is easily rejected. Social Security regulations require
administrative law judges to credit treating physician opinions
to the extent they are supported by objective medical evidence
and are consistent with the record as a whole. See 20 C.F.R.
§ 404.1527(c). Although “non-medical sources may provide
insight into the severity of the impairment(s) and how it
affects the individual’s ability to function,” such opinions
35 Id. at 19.
36 Pl. Mot. to Reverse Mem. (doc. no. 7-2) at 6 (quoting Admin.
R. at 20).
Case 1:19-cv-00107-JL Document 9 Filed 08/27/19 Page 16 of 18

17
“must be reasonably consistent with the longitudinal medical
record and supplied by objective findings.”37 Here, the ALJ
specifically found that there was “little objective support for
the significant limitations” to which his mother testified.38 As
such, the court cannot fault the ALJ for questioning the
neutrality of a family member who may stand to benefit from a
finding of disability, see Tremblay v. Sec’y of Health and Human
Servs., 676 F.2d 11, 13 (1st Cir. 1982), or for finding that the
mother’s lay medical opinions should not trump those of
Dr. Coyle – a qualified medical expert.
Lastly, Debaker challenges the ALJ’s RFC finding, asserting
that there was no substantial evidence supporting her finding
that “[d]ue to symptoms, persistence and pace would be
diminished but productivity would not be more than 10 percent
below the norm.” Again, Debaker points to no evidence in the
record suggesting otherwise. As such, this argument is
rejected. Regardless, Dr. Coyle’s mental RFC assessment, which
37 Admin. R. at 20; see also 20 C.F.R. § 404.1529(c)(3) (“Because
symptoms, such as pain, are subjective and difficult to
quantify, any symptom-related functional limitations and
restrictions that your medical sources or nonmedical sources
report, which can reasonably be accepted as consistent with the
objective medical evidence and other evidence, will be taken
into account . . . in reaching a conclusion as to whether you
are disabled.”).
38 Id.; see also 20 C.F.R. § 404.1527(c).
Case 1:19-cv-00107-JL Document 9 Filed 08/27/19 Page 17 of 18

18
thoroughly assessed Debaker’s sustained concentration and
persistence limitations, supports a finding that Debaker
experienced a minimal drop in productivity over the course of a
standard work week that was within acceptable pace and
persistence standards. As such, neither the RFC finding nor the
eleven other factual issues raised by Debaker warrant reversal
or remand.
Conclusion
In sum, none of the eleven factual findings cited by
Debaker constitute an error warranting reversal or remand of the
ALJ’s disability decision. The court therefore denies his
motion to reverse39 and grants the Acting Commissioner’s motion
for an order affirming its disability insurance benefits
decision.40 The clerk shall enter judgment accordingly and close
the case.
SO ORDERED.
Joseph N. Laplante
United States District Judge
Dated: August 27, 2019
cc: Leslie C. Nixon, Esq.
Luis A. Pere, Esq.
39 Doc. no. 7.
40 Doc. no. 8.
Case 1:19-cv-00107-JL Document 9 Filed 08/27/19 Page 18 of 18