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Brown v. Colvin

United States District Court, D. Maine

January 5, 2015

SHELBY J. BROWN, Plaintiff
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


JOHN H. RICH, III, Magistrate Judge.

The plaintiff in this Social Security Disability ("SSD") appeal contends that the administrative law judge wrongly failed to find that certain of his alleged impairments were severe, wrongly based the residual functional capacity ("RFC") that she assigned to the plaintiff on her own lay interpretation of medical evidence, failed to give appropriate weight to the opinion of a treating physician, and did not accurately identify his past relevant work. Finding no reversible error, I affirm the commissioner's decision.

In accordance with the commissioner's sequential evaluation process, 20 C.F.R. § 404.1520; 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 only through December 31, 2011, Finding 1, Record at 24; that, through the date last insured, the plaintiff suffered from degenerative joint disease in both knees and diabetes mellitus with hypoglycemia, 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 3-4, id. at 24-32; that, through the date last insured, the plaintiff had the RFC to perform the full range of work except for work that required the ability to climb ladders, ropes, or scaffolds, Finding 5, id. at 34; that, through the date last insured, he was capable of performing his past relevant work as a yard helper, carpet installer, pallet repairer, electrician's helper, mechanic, dismantler, cable installer, and lawn mower, Finding 6, id. at 40-41; and that, therefore, he was not under a disability, as that term is defined in the Social Security Act, at any time from the alleged date of onset of disability, October 1, 2008, through the date last insured, December 31, 2011, Finding 7, id. at 42. 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; 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); 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 4 of the sequential evaluation process, at which stage the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. § 404.1520(f); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). 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); Social Security Ruling 82-62, reprinted in West's Social Security Reporting Service Rulings 1975-1982 ("SSR 82-62"), at 813.

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).

I. Discussion

A. Step 2 Issues

The plaintiff contends that the administrative law judge should have found that he suffered from the additional severe impairments of anxiety, depression, a back impairment, and a seizure disorder. Plaintiff's Statement of Errors ("Itemized Statement") (ECF No. 11) at 3-6. I will address each alleged impairment in the order presented by the plaintiff.

The plaintiff begins with his back. He asserts that he "has been diagnosed with spondylitic change, scoliosis, disc space narrowing, disc degeneration, early facet degeneration, all of which could reasonably result in low back pain." Id. at 4. The administrative law judge found, with respect to the plaintiff's back pain, that "examinations and films revealed no significant signs of impairment[.]" Record at 24. She found "no references to back pain [in the medical records] after the alleged onset date and for some[]time before" as well as "no treatment notes after September 2009 until July 25, 2011[, ]" just over five months before the date last insured. Id. at 25. She discussed the treatment records of Drs. Dohner, Kozma, Shems, Kaplan, and Glazer. Id. at 24-25. She took into account August 2011 x-rays and an MRI. Id. at 25.

On this issue, the plaintiff essentially urges the court to do what neither it nor the administrative law judge may do, and what he accuses the administrative law judge of doing, Itemized Statement at 5: interpret raw medical evidence. See, e.g., Enman v. Colvin, Civil No. 2:13-cv-307-DBH, 2014 WL 5394577, at *3 (D. Me. Oct. 21, 2014). In addition, he fails even to suggest how a finding that his back pain was a severe impairment would change the outcome of his application, a necessity to establish that the error was not harmless. Id. at 2. An assertion that the evidence "could reasonably" support a conclusion other than that reached by the administrative law judge is not enough.

Next, the plaintiff asserts that he has been diagnosed with a seizure disorder and hypoglycemia. Itemized Statement at 5. He concedes that the diagnosis of a seizure disorder was made after the date last insured, id., but contends that the diagnosis "is apparently based on the Plaintiff's history that this impairment existed prior to" that date. Id. He apparently believes that the diagnosis alone establishes that the seizure disorder is severe, id., but that is not the case. Stokes v. Colvin, No. 14-6005-CV-SJ-ODS, 2014 WL 5394971, at *1 (W.D. Mo. Oct. 22, 2014); see generally Kelly v. Barnhart, No. 03-46-P-H, 2004 WL 413298, at *3 (D. Me. Mar. 3, 2004). He also repeats the contention that the administrative law judge erroneously interpreted raw medical evidence in dealing with this impairment. Id. at 6. Again, he does not describe how the outcome of his claim would necessarily be different, if the seizure disorder were found to be severe.

With respect to the seizures, the administrative law judge noted that an EEG and MRI revealed no abnormalities, a neurologist did not diagnose epilepsy, a CT scan of the brain was essentially negative, and that medication was effective in reducing the frequency of seizures. Record at 28-29. In addition, the administrative law judge's conclusion that the seizure disorder was not severe is supported by the opinions of two state-agency physicians who reviewed the medical evidence. Record at 312, 327. That is all that is required.[2] See, e.g., Legere v. Social Sec. Admin. Comm'r, No. 1:09-cv-413-JAW, 2010 WL 2670830, at *3 (D. Me. June 28, 2010). The administrative law judge did not err when she concluded that the plaintiff's seizure disorder was not severe.

The plaintiff then discusses his alleged anxiety and depressive disorder as a single impairment. Itemized Statement at 6. He again assumes that the existence of a diagnosis of such an impairment requires that the impairment be found severe at Step 2, but that is contrary to established Social Security law. In this instance the plaintiff also relies on his own reports to Dr. Kaplan, which are irrelevant at Step 2, where only medical ...

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