United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
JOHN H. RICH, III, 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 returning to his past relevant work as a customer service representative or a cashier or, in the alternative, of performing other work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that the administrative law judge's determination of his residual functional capacity ("RFC") was unsupported by substantial evidence, those flaws undermined the relevance of a vocational expert's testimony that he could perform his past relevant work and other work, and the administrative law judge's credibility determination cannot stand. See Plaintiff's Itemized Statement of Errors ("Statement of Errors") (ECF No. 11) at 5-21. I find no reversible error and, accordingly, recommend that the court affirm the decision.
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 12; that he had a severe impairment of degenerative disc disease of the lumbar spine, Finding 3, id.; that he retained the RFC to lift and carry 20 pounds occasionally and 10 pounds frequently, could stand or walk for six hours in an eight-hour workday, could sit for six hours in an eight-hour workday, and would have unlimited use of his hands and feet to operate foot controls, Finding 5, id. at 14; that he was capable of performing past relevant work as a Customer Service Representative and Cashier II, which did not require the performance of work-related activities precluded by his RFC, Finding 6, id. at 19; that, in the alternative, considering his age (33 years old, defined as a younger individual, on his alleged disability onset date, July 1, 2010), education (at least high school), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that he could perform, id. at 20; and that he, therefore, had not been disabled from April 5, 2009, through the date of the decision, November 16, 2012, Finding 7, 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 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), 416.920(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), 416.920(f); Social Security Ruling 82-62 ("SSR 82-62"), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.
In the alternative, 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. §§ 404.1520(g), 416.920(g); Bowen, 482 U.S. at 146 n.5; 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 challenges both the physical and mental components of the administrative law judge's RFC determination. See Statement of Errors at 5-18. His counsel conceded at oral argument, as the commissioner had argued in her brief, that any error in determining physical RFC was harmless with respect to the Step 4 finding that he could return to his past relevant work. See Defendant's Opposition to Plaintiff's Statement of Errors ("Opposition") (ECF No. 14) at 11-12. He clarified that his client's challenge to the physical RFC component bears on the Step 5 finding that he could perform work existing in significant numbers in the national economy, while his challenge to the mental RFC component bears on the Step 4 finding that he could perform past relevant work. He acknowledged that, to merit reversal and remand, his client needed to demonstrate that both the Step 4 and alternative Step 5 findings were without substantial evidence.
I find no reversible error in the administrative law judge's mental RFC determination. Hence, I recommend that the court affirm the decision on the basis of the Step 4 finding that the plaintiff retained the RFC to return to his past relevant work. I do not address the plaintiff's challenge to the administrative law judge's alternative Step 5 determination. While the plaintiff also separately challenges the administrative law judge's credibility determination, I conclude that he falls short of demonstrating entitlement to remand on that basis.
A. Handling of Mental Impairments
The administrative law judge found, "The [plaintiff's] medically determinable mental impairment of [sic] does not cause more than minimal limitation in [his] ability to perform basic mental work activities and is therefore nonsevere." Record at 13. He addressed the four broad functional areas that disability regulations require be considered in evaluating the severity of mental disorders, see 20 C.F.R. §§ 404.1520a(c), 416.920a(c), explaining:
The first functional area is activities of daily living. In this area, the [plaintiff] has mild limitation. In his Function Report, the [plaintiff] noted taking care [o]f his infant daughter by feeding her and changing her. He also noted taking care of pets.
[He] noted preparing simple meals and washing dishes. [He] reported driving a car and shopping in stores. [He] testified that he is able to shower on his own[.] The next functional area is social functioning. In this area, the [plaintiff] has mild limitation. Mental health treatment notes from 2012 report that [he] enjoys shopping and visiting friends and that he was trying to get his license back in order to be more social. He testified that he uses Facebook to communicate with friends.
The third functional area is concentration, persistence or pace. In this area, the [plaintiff] has mild limitation. [He] testified that he plays video games for up to two hours per day. [He] testified that he collects cards and spends most of the time carefully sorting them by brand and year. [He] also testified that he uses Facebook for about thirty minutes per day.
The fourth functional area is episodes of decompensation. In this area, the [plaintiff] has experienced no episodes of decompensation which have been of extended duration.
Id. (citations omitted).
He stated, "Although adjudged to be non-severe, ' the [plaintiff's] above-noted impairments were considered in assessing his residual functional capacity[.]" Id. He explained, in the RFC section of his decision:
In addition to the [plaintiff's] physical limitations, he also alleged disability based upon psychiatric symptoms. [He] had filed an earlier claim alleging disability based on Attention Deficit Hyperactivity Disorder, OCD [obsessive compulsive disorder], and social anxiety beginning in August 2007, which was denied in December 2007. However, the record shows only mild limitations based on the [plaintiff's] mental impairments.
The record shows that the [plaintiff] is diagnosed with post traumatic stress disorder (PTSD) and Attention Deficit Hyperactivity Disorder for which he has taken medication for several years. Of note, in March 2010 (four months prior to [his] alleged onset of disability), [he] presented to psychiatrist Paul Minot, MD for medication management with his girlfriend of two years with whom he had a one-year-old child. [He] reported escalating mood instability. The [plaintiff's] girlfriend reported that [he] is a ...