JASON A. ENMAN, Plaintiff
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant
Plaintiff JASON A ENMAN represented by ANDREW J. BERNSTEIN LAW OFFICE OF JOSEPH BORNSTEIN
Defendant SOCIAL SECURITY ADMINISTRATION COMMISSIONER represented by CHRISTOPHER L. POTTER SOCIAL SECURITY ADMINISTRATION OFFICE OF GENERAL COUNSEL JOHN F. KENNEDY FEDERAL, SOCIAL SECURITY ADMINISTRATION OFFICE OF GENERAL COUNSEL, JOHN F. KENNEDY FEDERAL BUILDING EVAN J. ROTH U.S. ATTORNEY'S OFFICE DISTRICT OF MAINE
REPORT AND RECOMMENDED DECISION
JOHN H. RICH III UNITED STATES MAGISTRATE JUDGE
In this Supplemental Security Income (“SSI”) appeal, the plaintiff contends that the administrative law judge erroneously treated the medical evidence, wrongly credited the opinions of non-examining state-agency physicians and failed to adopt all of the functional limitations assigned to him by a treating physician, was required to consult a medical expert at the hearing, and mistakenly found that his depressive disorder was not a severe impairment. I recommend that the court affirm the commissioner’s decision.
In accordance with the commissioner’s sequential evaluation process, 20 C.F.R. § 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 suffered from diabetes with diabetic peripheral neuropathy in bilateral lower extremities and obesity, impairments that were severe but which, considered separately or in combination, did not meet or medically equal the criteria of any impairment listed in Appendix 1 to 20 C.F.R. Part 404, Subpart P (the “Listings”), Findings 2-3, Record at 14-16; that he had the residual functional capacity (“RFC”) to perform light work, except that he could stand and/or walk for 2 hours out of an 8-hour workday, sit for about 6 hours out of an 8-hour workday, never operate foot controls, never climb ladders, ropes, or scaffolds, but occasionally climb stairs or ramps, balance, stoop, crouch, kneel, or crawl, must avoid temperature extremes, vibration in the lower extremities, unprotected heights, and irregular terrain, Finding 4, id. at 16; that, given his age (35 on the day the application for benefits was filed, August 16, 2010, at least high school education, work experience, and RFC, there were jobs existing in significant numbers in the national economy that the plaintiff could perform, Findings 5-9, id. at 18; and that, therefore, he had not been under a disability, as that term is defined in the Social Security Act, at any time from August 16, 2010, through the date of the decision, July 2, 2012, Finding 10, id. at 19. The Appeals Council declined to review the decision, id. at 1-3, making it the final determination of the commissioner, 20 C.F.R. § 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. § 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 his past relevant work. 20 C.F.R. § 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 Step 2 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).
A. Step 2 Issue
The plaintiff asserts that the medical records that he provided “provide ample evidence that the Plaintiff’s depressive disorder has more than a de minimis impact on his basic work activities.” Statement of Errors (“Itemized Statement”) (ECF No. 19) at 14. While that is the applicable legal standard, were the evidence that the plaintiff lists the only evidence on this point, a plaintiff must also demonstrate that the outcome of his claim would have been different if this Step 2 finding had been made. E.g., Webber v. Colvin, No. 2:13-cv-00236-NT, 2014 WL 3530705, at *3 (D. Me. July 15, 2014) Here, the plaintiff argues that such a finding “would have resulted in the ALJ incorporating into his RFC nonexertional restrictions due to this severe impairment that would have likely excluded jobs, such as having interruptions during the workday.” Id.
Interruptions in the workday of unspecified frequency, duration, or nature that would exclude unspecified (but not all) jobs from the universe of those otherwise available to the plaintiff constitute an insufficient presentation on this issue. More significant is the fact that there is ample evidence in the record to support the administrative law judge’s conclusion that the plaintiff’s “medically determinable mental impairment of depression does not cause more than minimal limitation in [his] ability to perform basic mental work activities and is therefore nonsevere.” Record at 14. In addition to the administrative law judge’s extensive discussion of his reasons for this conclusion, id. at 14-15, both of the state-agency psychologists who reviewed the plaintiff’s medical records concluded that he had no severe mental impairment. Id. at 88, 241. This is substantial evidence supporting the administrative law judge’s conclusion. Nothing further is required.
B. RFC – Substantial Evidence
The plaintiff challenges the administrative law judge’s conclusion that the objective evidence “does not support the elevated level of impairment alleged[, ]” id. at 17, attacking each example included in the paragraph in which the ...