United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
H. RICH III, Magistrate Judge.
Social Security Disability ("SSD") and Supplemental
Security Income ("SSI") appeal, the pro se
plaintiff raise several grounds for appeal. After a careful
review, I recommend that the court affirm the
accordance with the commissioner's sequential evaluation
process, 20 C.F.R. Â§Â§ 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, 2016, Finding
1, Record at 12; that he suffered from chronic atrial
fibrillation accompanied by intermittent dizziness, chronic
coagulation therapy, and obesity as a complicating factor,
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 12-13; that he had the residual functional
capacity ("RFC") to perform light work, except that
he could only walk and/or stand for four hours in an
eight-hour workday, could never climb ladders, ropes, or
scaffolds, should avoid unprotected heights, operation of
dangerous machinery, sharp implements, and potential
pulmonary irritants including extremes of humidity and
temperature, and could climb stairs or ramps, balance, stoop,
kneel, crouch, or crawl occasionally, Finding 5, id.
at 16; that he could not perform any past relevant work,
Finding 6, id. at 21; that, considering his age (51 years old
on his alleged disability onset date, June 11, 2012), limited
education, work experience, and RFC, and using the
Medical-Vocational Rules of 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. at 21-22; and that he, therefore, had not been
disabled from June 11, 2012, through the date of the
decision, March 26, 2014, 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. Â§Â§ 404.981, 416.1481; Dupuis v.
Secretary of Health & Human Servs., 869 F.2d 622, 623
(1st Cir. 1989).
standard of review of the commissioner's decision is
whether the determination made is supported by substantial
evidence. 42 U.S.C. Â§Â§ 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).
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. Â§Â§ 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).
Issues Not Before the Court
plaintiff appeals from the decision of the Commissioner of
Social Security denying his application for benefits that was
filed in June 2012. Record at 10. The administrative law
judge's ruling on this application was issued on March
26, 2014. Id. at 23. The nature of an appeal is a
review of a decision made by an individual or agency; this
court cannot consider issues or evidence that was not first
presented to that decision-maker. E.g., Mannix v.
Astrue, Civil No. 08-437-B-W, 2009 WL 3152880, at *3 (D.
Me. Sept. 29, 2009). This basic legal principle makes it
impossible for this court to consider the plaintiff's
"Statement of Errors" (ECF No. 18), a copy of a
two-page medical record dated November 24, 2015, well after
the ruling from which this appeal was taken had been issued,
and the many events and diagnoses included in the
plaintiff's "Objection" to the
Commissioner's Opposition to my "Statement of
Errors" (ECF No. 21), all of which have occurred
"since 2012." Id. at .
colon cancer and spinal cyst to which the plaintiff
repeatedly refers, ECF Nos. 16 & 18, were not presented in
the application that was eventually before the administrative
law judge, Record at 65, and cannot be considered by this
court for that reason as well. Swormstedt v. Colvin,
No. 2:13-cv-00079-JAW, 2014 WL 1513347, at *7 (D. Me. Apr.
16, 2014). Should the plaintiff wish to pursue a claim for
disability benefits due to these medical impairments, he is
free to submit a new application, as the defendant suggests.
Defendant's Opposition to Plaintiff's Statement of
Errors ("Opposition") (ECF No. 20) at 7.
sole issue raised by the plaintiff over which this court has
jurisdiction is his assertion that he is "limited to
light duty 2 days a month/not possible." Fact Sheet for
Social Security Appeals: Plaintiff (ECF No. 16). This
apparently refers to the response of the vocational expert to
a question from the plaintiff's then-attorney while
testifying at the hearing to the effect that, if the
plaintiff were unable to work two days per month due to
symptoms or treatment of his symptoms, then the jobs which
the vocational expert had identified as being available to
the plaintiff in response to a hypothetical question from the
administrative law judge would no longer be available to him.
Record at 61 & ECF No. 16-1.
administrative law judge did not adopt this limitation, which
apparently is based on the opinion of Zachary Greenier, a
physician's assistant who treated the plaintiff, that the
plaintiff's impairments would cause him to be absent from
work more than three times per month. Record at 467. While
the administrative law judge did not mention this particular
limitation in his opinion, he did say that he gave weight to
any of Greenier's opinions only to the extent that each
opinion was supported by the record as a whole, concluding
that "only very little weight is given Mr.
Greenier's opinion in view of some of his propounded
limitations that are far in excess of any that would be
supported by the record as a whole." Id. at 21.
The plaintiff has not identified any other medical opinion in
the record supporting a consistent two- or three-day absence
from work every month.
administrative law judge gave greatest weight, id.
at 20, to the opinions of the stateagency physician reviewers
who reviewed the plaintiff's medical records and did not
identify any restrictions that could reasonably be
interpreted to cause the plaintiff to miss any workdays due
to his impairments on a regular basis. Id. at 65-70,
92-98. These opinions provide substantial evidentiary support
for the ...