United States District Court, D. Maine
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 should have found that her depression and anxiety were severe impairments and wrongly rejected the opinions of a treating medical source. I 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 suffered from scoliosis and polyneuropathy, 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, Record at 14-15; that she has the residual functional capacity ("RFC") to perform light work, except that she would need to change positions every 20-30 minutes, should not engage in constant overhead reaching, should not climb ladders, ropes, or scaffolds, but could occasionally climb ramps or stairs, balance, stoop, kneel, crouch, or crawl, Finding 5, id. at 15; that she was unable to perform any past relevant work, Finding 6, id. at 18; that, given her age (26 on the alleged date of onset of disability, June 1, 2011), at least high school education, work experience, and RFC, and using the Medical-Vocational Rules in Appendix 2 to 20 C.F.R. Part 404, Subpart P (the "Grid") as a framework for decision-making, there were jobs existing in significant numbers in the national economy that the plaintiff could perform, Findings 7-10, id. at 18-10; and that, therefore, the plaintiff had not been under a disability, as that term is defined in the Social Security Act, at any time through the date of the decision, September 13, 2013, Finding 11, id. at 20. 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).
The plaintiff's appeal 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
The plaintiff presents three challenges to what she characterizes as the administrative law judge's failure to find that her depression and anxiety were severe impairments. Plaintiff's Itemized Statement of Errors ("Itemized Statement") (ECF No. 11) at 4-9. I address the arguments in the order in which the plaintiff has presented them.
The plaintiff's first claimed basis for remand is an alleged failure by the administrative law judge to use a special regulatory technique to evaluate her asserted mental impairments. Id. at 4-7. The regulation that she cites, which is entitled "Evaluation of mental impairments, " provides, in relevant part:
We have identified four broad functional areas in which we will rate the degree of your functional limitation: Activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation.
20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). In addition, the plaintiff asserts that she is entitled to remand when neither an examining state-agency psychologist or psychiatrist nor a nonexamining state-agency psychologist or psychiatrist completes a "psychiatric review technique" form and when no medical expert is called to testify at hearing about the effects of a claimant's alleged mental impairments. Itemized Statement at 5.
The defendant responds that none of these factors comes into play until a claimant has established that she has a mental impairment, 20 C.F.R. §§ 404.1520a(b)(1), 416.920a(b)(1), which the plaintiff did not do in this case. Defendant's Opposition to Plaintiff's Statement of Errors ("Opposition") (ECF No. 13) at 2-4. The administrative law judge's statement on this point is the following:
At the hearing, the claimant alleged that she has anxiety, depression and anger issues. However, she has never consulted a psychiatric specialist about these symptoms, has never been diagnosed or treated for these symptoms and has not complained of these conditions to her treating physician or neurologist ...