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Bent v. Colvin

United States District Court, District of Maine

July 27, 2014

ROSEMARY J. BENT, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

Plaintiff ROSEMARY J BENT represented by DAVID A. CHASE MACDONALD, CHASE & DUFOUR

Defendant SOCIAL SECURITY ADMINISTRATION COMMISSIONER represented by JEANNE D. SEMIVAN SOCIAL SECURITY ADMINISTRATION OFFICE OF GENERAL COUNSEL JOHN F. KENNEDY FEDERAL, EVAN J. ROTH, NATASHA OELTJEN,

REPORT AND RECOMMENDED DECISION [1]

JOHN H. RICH III UNITED STATES MAGISTRATE JUDGE

This Social Security Disability (“SSD”) and Supplemental Security Income (“SSI”) appeal raises the question of whether the administrative law judge supportably found the plaintiff capable of performing work existing in significant numbers in the national economy. The plaintiff seeks reversal and remand on the bases that the administrative law judge erred in his determinations of the nonseverity of her anxiety and depression, her residual functional capacity (“RFC”), and her transferable skills. See Statement of Specific Errors (“Statement of Errors”) (ECF No. 21) at 1-18.[2] I agree, and recommend that the court find, that reversal and remand are warranted on the basis of error in determining the plaintiff’s transferable skills. I discern no reversible error in the administrative law judge’s handling of her mental impairments or RFC.

Pursuant to the commissioner’s sequential evaluation process, 20 C.F.R. §§ 404.1520, 416.920; Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the administrative law judge found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act through December 31, 2014, Finding 1, Record at 13; that she had severe impairments of status-post thoracolumbar fusion, degenerative changes and disc protrusions of the lumbar spine, status-post bilateral ankle fractures, right thumb osteoarthritis, hernia, and obesity, Finding 3, id. at 14; that she retained the RFC to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), except that she could not climb ladders, ropes, or scaffolds and could only occasionally balance, stoop, kneel, crouch, and climb ramps or stairs, Finding 5, id. at 16; that, considering her age (48 years old, defined as a younger individual, on her alleged disability onset date, February 19, 2010), education (at least high school), work experience (work skills from past relevant work), and RFC, there were jobs existing in significant numbers in the national economy that she could perform, Findings 7-10, id. at 20; and that she, therefore, was not disabled from February 19, 2010, through the date of the decision, April 25, 2012, Finding 11, id. at 21. The Appeals Council declined to review the decision, id. at 1-3, making the decision the final determination of the 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 is whether the determination made is supported by substantial evidence. 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 must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

The administrative law judge reached Step 5 of the sequential evaluation process, at which stage the burden of proof shifts to the commissioner to show that a claimant can perform work other than her past relevant work. 20 C.F.R. §§ 404.1520(g), 416.920(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the commissioner’s findings regarding the plaintiff’s RFC to perform such other work. Rosado v. Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

The plaintiff’s statement of errors also implicates Steps 2 and 4 of the sequential evaluation process. Although a claimant bears the burden of proof at Step 2, it is a de minimis burden, designed to do no more than screen out groundless claims. McDonald v. Secretary of Health & Human Servs., 795 F.2d 1118, 1124 (1st Cir. 1986). When a claimant produces evidence of an impairment, the commissioner may make a determination of non-disability at Step 2 only when the medical evidence “establishes only a slight abnormality or [a] combination of slight abnormalities which would have no more than a minimal effect on an individual’s ability to work even if the individual’s age, education, or work experience were specifically considered.” Id. (quoting Social Security Ruling 85-28).

At Step 4 of the sequential evaluation process, the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f); Bowen, 482 U.S. at 146 n.5. At this step, the commissioner must make findings of the plaintiff’s RFC and the physical and mental demands of past work and determine whether the plaintiff’s RFC would permit performance of that work. 20 C.F.R. §§ 404.1520(f), 416.920(f); SSR 82-62, reprinted in West’s Social Security Reporting Service Rulings 1975-1982, at 813.

I. Discussion

A. Step 2: Mental Impairments

The record contains two expert evaluations of the severity of the plaintiff’s mental impairments, that of agency examining consultant Adrienne J. Butler, Ed.D., dated June 25, 2010, and that of agency nonexamining consultant Leigh Haskell, Ph.D., dated July 19, 2010. See Record at 462-66, 477-89.

Based on a review of records of the plaintiff’s primary care provider, Lisa Grant, N.P., for the period from March 24, 2010, to April 7, 2010, and an interview and mental status examination of the plaintiff, see id. at 462-65, Dr. Butler concluded that she would be able to understand tasks consistent with average intellectual ability, was “apt to have difficulty with tasks requiring abstract reasoning and need enhanced verbal mediation, ” was “apt to need reinforcement and repetition of new verbal information in order to acquire, retain and recall it[, ]” did “have observable intermittent attention and concentration difficulties and would likely have difficulty sustaining prolonged task focus[, ]” was “apt to be able to socialize adequately in a small familiar setting” but was “apt to experience heightened anxiety in large group or public settings[, ]” and “would likely have problems with adaptation should speeded or pressured performance be required[, ]” id. at 465-66.

With the benefit of review of the Butler report and an April 7, 2010, office note of Grant, see id. at 489, Dr. Haskell concluded that the plaintiff had severe mental impairments, causing mild restriction of activities of daily living, moderate difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace, with insufficient evidence of episodes of decompensation, see id. at 477, 487; see also 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1) (“If we rate the degree of your limitation in the first three functional areas as ‘none’ or ‘mild’ and ‘none’ in the fourth area, we will generally conclude that your ...


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