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Bourret v. Colvin

United States District Court, D. Maine

October 1, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


JOHN H. RICH, III, Magistrate Judge.

In this Social Security Disability ("SSD") and Supplemental Security Income ("SSI") appeal, the plaintiff contends that the administrative law judge reviewed records for the wrong period, wrongly discounted the opinions of her treating physician, committed reversible error in failing to find that her mental impairments were serious, and assigned her a residual functional capacity ("RFC") that was not supported by substantial evidence. I recommend that the court affirm the commissioner's decision.

In accordance with 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 for purposes of SSD through December 31, 2011, Finding 1, Record at 23; that she suffered from degenerative disc disease, an impairment that was severe but which 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 3-4, id. at 23-25; that she had the RFC to perform light work except that she could never climb ladders or scaffolds, could only occasionally balance, should never crawl, should avoid frequent overhead work with either extremity, and must be allowed a sit/stand option where she could change position every 20 to 30 minutes, Finding 5, id. at 25; that she was unable to perform any past relevant work, Finding 6, id. at 28; that, given her age (28 on the amended alleged date of onset of disability, November 1, 2009), at least high school education, work experience, and RFC, and using as a framework the Medical-Vocational Rules of Appendix 2 to 20 C.F.R. Part 404, Subpart P (the "Grid"), there were jobs existing in significant numbers in the national economy that she could perform, Findings 7-10, id. at 28-29; and that, therefore, she had not been under a disability, as that term is defined in the Social Security Act, from December 15, 2002, through the date of the opinion, August 30, 2012, Finding 11, id, at 30. The Appeals Council declined to review the decision, id. at 1-3, making it 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).

I. Discussion

A. Incorrect Date of Onset

The plaintiff's initial application alleged a date of onset of disability of December 15, 2002. Record at 20. As the administrative law judge noted, the plaintiff amended her alleged onset date to November 1, 2009. Id . & id. at 23, 28 (calculating age as of amended date). However, his final finding was that the plaintiff had not been under a disability since December 15, 2002, the original alleged date of onset. Id. at 30. The plaintiff contends that this is "more than a simple procedural, harmless error" because both her physical and her mental symptoms "substantially worsened" after the amended onset date. Itemized Statement at 5.

First, none of the pages of the record cited by the plaintiff in support of this argument demonstrates, as she asserts, that her physical and/or mental symptoms worsened after November 1, 2009, to such an extent that she was "prevented... from returning to and sustaining employment at an SGA level" after that date, when before that date she was able to work. Id . See Record at 463-64; 477; 482; 881-84; 923-27.

The defendant contends that the use of the original onset date in the final finding in the administrative law judge's opinion is "nothing more than a harmless scrivener's error." Defendant's Opposition to Plaintiff's Itemized Statement of Errors ("Oppositions") (ECF No. 14) at 7. She cites as authority this court's decisions in Meacham v. Astrue, Civil No. 09-590-P-S, 2010 WL 4412113, at *6-*7 (D. Me. Oct. 31, 2010), and Guber v. Astrue, No. 1:10-cv-172-JAW, 2011 WL 1253888, at *5 (D. Me. Mar. 30, 2011), for general discussions of scrivener's errors. Id. at 7-8. While it is highly likely that a scrivener's error occurred in this case, it is not necessary to reach that question in order to resolve the issue before the court.

Even if the plaintiff had demonstrated that her symptoms worsened "substantially" after her amended date of onset, she would not be entitled to remand on this basis. The administrative law judge and the state-agency reviewing physicians considered all of the medical evidence that was before them, not just the evidence dated between the initially-alleged date of onset and the amended date. A large number of courts have rejected the argument made here by the plaintiff under virtually identical circumstances. See, e.g., Richardson v. Colvin, No. 13-CV-377S, 2014 WL 3349462, at *6 (W.D.N.Y. July 8, 2014); Wallace v. Colvin, No. 2:11-0100, 2014 WL 2117500, at *10 (M.D. Tenn. May 21, 2014); McGougan v. Commissioner, Soc. Sec., Civil Case No. JKB-13-52, 2014 WL 266807, at *1 n.1 (D. Md. Jan. 23, 2014); Jackson v. Commissioner of Soc. Sec., No. 3:11-cv-358, 2012 WL 5497778, at *4-*5 (S.D. Ohio Nov. 13, 2012); Register v. Astrue, No. CV-10-2749-PHX-LOA, 2011 WL 6369766, at *13 (D. Ariz. Dec. 20, 2011); Madcke v. Social Sec. Admin. Comm'r, No. 3:09-cv-108, 2010 WL 3943953, at *6 (D.N.D. Sept. 10, 2010).

The plaintiff is not entitled to remand on this basis.

B. Treating Physician

The plaintiff next argues that the administrative law judge should have given an unspecified greater amount of weight to the opinions of her treating pain management specialist, Dayton Haigney, MD, and rejected the opinions of the state-agency physician who reviewed the record, Dr. Chamberlin. Itemized Statement at 5-10. She relies, id. at 6-8, on the form provided by her attorney and filled out by Dr. Haigney[2] on which he checks the line for "less than sedentary work" but does not elaborate further, despite the invitation for further ...

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