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Gagnon v. Colvin

United States District Court, D. Maine

January 13, 2016

TAMMI L. GAGNON, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDED DECISION [1]

JOHN H. RICH, III, Magistrate Judge.

This Social Security Disability ("SSD") and Supplemental Security Income ("SSI") appeal challenges the administrative law judge's findings that two particular impairments were not severe, and contends that she failed to assign proper weight to the opinions of several treating medical providers. I recommend that the court vacate the commissioner's decision and remand the action for further proceedings.

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, 2012, Finding 1, Record at 13; that she suffered from deep vein thrombosis, recurrent blood clots, obesity, anxiety, depression, and history of drug abuse in early remission, 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 13-14; that she had the residual functional capacity ("RFC") to perform sedentary work, except that she could only occasionally climb ladders, ropes, scaffolds, stairs, or ramps, could occasionally balance and crouch, could never kneel or crawl, could occasionally pull or push with her lower extremities, could occasionally interact with the public, and must be allowed to alternate positions at will, Finding 5, id. at 16; that she could not return to any past relevant work, Finding 6, id. at 21; that, considering her age (27 years old on her alleged disability onset date, May 5, 2011) education (at least high school), 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 she could perform, Findings 7-10, id. at 22; and that she, therefore, had not been disabled from May 5, 2011, through the date of the decision, January 30, 2014, Finding 11, id. at 23. The Appeals Council declined to review the decision, id. at 1-4, 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 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 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 her to be suffering from two additional severe impairments, cellulitis and iron deficiency anemia. Plaintiff's Statement of Errors ("Itemized Statement") (ECF No. 15) at 3-7. The administrative law judge said that "[t]he claimant's cellulitis condition is non-severe, as it is managed with treatment." Record at 14. She went on to list several discrete episodes of cellulitis and the resolution of each. Id. She ended with the following statement: "Recent treatment notes, from November and December 2013, show the claimant's symptoms are managed well with infusion treatments of antibiotics; therefore, they do not pose more than minimal limitations on her ability to perform work activity." Id.

With respect to the plaintiff's iron deficiency anemia, the administrative law judge said the following, in full:

The claimant's anemia and B12 deficiency is also non-severe, as her symptoms are managed with injections and supplements (8F/17-21; 38F/1-2). The claimant testified that she now has a port, and treats for about 90 minutes of IV infusions, but also takes oral supplements. The claimant admitted that her symptoms have improved.

Id.

With respect to her anemia, the plaintiff asserts, without citation to the record, that it "is, in part, the result of conversion and absorption deficits resulting from her prior gastric bypass[.]" Itemized Statement at 6. She characterizes it as "cyclical in nature." Id. She contends that "[g]iven the number of treatments for her anemia that the Plaintiff has received during the course of this claim, this would also result in needing an accommodation for missed work that would effectively rule out regular employment." Id. She is "necessarily unavailable' for work" during twice-monthly 90-minute intravenous treatments. Id.

The plaintiff mentions only a record of such treatments from March through September of 2013, id., which would not meet the 12-month requirement of 20 C.F.R. §§ 404.1509 and 416.909 ("Unless your impairment is expected to result in death, it must have lasted or must be expected to last for a continuous period of at least 12 months."). On April 16, 2013, while the cited treatment was ongoing, the plaintiff's treating physician did not mention anemia as a medical condition that he was treating. Record at 1876. The plaintiff cites no medical evidence about the past frequency of her anemia, its likely future frequency, and the availability of twice-monthly intravenous treatment at ...


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