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Dax v. Colvin

United States District Court, D. Maine

December 28, 2015

DANIEL DAX, Plaintiff
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant



This Social Security Disability (“SSD”) and Supplemental Security Income (“SSI”) appeal challenges the administrative law judge’s findings concerning the plaintiff’s age and credibility, and his refusal to admit evidence tendered after the regulatory deadline for doing so. 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 met the insured status requirements of the Social Security Act through December 31, 2013, Finding 1, Record at 17; that he suffered from degenerative disc disease of the cervical spine status post C5-C6 fusion, 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 17-18; that he had the residual functional capacity (“RFC”) to perform light work except that he could occasionally climb ramps and stairs but never ladders, ropes, or scaffolds, could occasionally balance, stoop, kneel, crouch, and crawl, must avoid static head positioning above the horizontal plane, and was limited to occasional reaching and lifting overhead of no more than 10 pounds, Finding 5, id. at 18; that he was unable to perform any past relevant work, Finding 6, id. at 21; that, considering his age (41 years old on his alleged disability onset date, January 15, 2002), education (at least high school), work experience, and RFC, and using 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 he could perform, Findings 7-10, id.; and that he, therefore, had not been disabled from January 15, 2002, through the date of the decision, November 26, 2013, Finding 11, id. at 22. 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 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 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. Unadmitted Document

The plaintiff first contends that the administrative law judge committed reversible error when he rejected the plaintiff’s request to admit a report from an occupational therapist that was apparently submitted fewer than the five business days in advance of the hearing that is required by 20 C.F.R. § 405.331(a). Plaintiff’s Statement of Errors (“Itemized Statement”) (ECF No. 15-1) at 2. He asserts that “[t]he memo submitted on September 19th [, 2013] provides good cause for admitting the OT report due to Meredith Coffin’s having to put aside the preparation of the report in order to care for her brother.” Id. at 3-4. The memo itself is undated, although the report is dated September 12, 2013. ECF Nos. 15-2 & 15-3. The hearing took place on September 24, 2013. Record at 14.

The plaintiff invokes the following regulatory option to excuse the five-day requirement:

If you miss the deadline described in paragraph (a) of this section and you wish to submit evidence during the five business days before the hearing or at the hearing, the administrative law judge will accept the evidence if you show that:
(3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from submitting the evidence earlier.

20 C.F.R. § 405.331(b)(3). This is a “rather rigorous” standard. Raymond v. Astrue, No. 1:12-cv-92-DBH, 2012 WL 6913437, at *2 (D. Me. Dec. 31, 2012).

The administrative law judge addressed the report as follows:

The claimant’s attorney filed late a therapeutic evaluation conducted 12 days prior to hearing. Despite counsel’s acknowledgement that the assessment was submitted late per 20 CFR § 405.331(a) (less than 5 days prior to hearing), and that it was conducted by an occupational therapist, who is not an acceptable medical source (20 CFR § 404.1513), [plaintiff’s counsel] argued that the report should be admitted since it is “thorough and detailed [and based on] medical evidence of the 1998 fracture” at C6 (Exhibit 15E). I do not concur, and do not find good cause to admit the untimely filed report. A single evaluation done 11 years after the alleged onset date, and performed by an occupational therapist (OT)[, ] is insufficient to counteract nearly 10 years of ...

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