United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
H. RICH III, Magistrate Judge.
pro se Supplemental Security Income
("SSI") appeal raises the question of whether the
administrative law judge supportably found the plaintiff
capable of performing work existing in significant numbers in
the national economy. I recommend that the court affirm the
accordance with the commissioner's sequential evaluation
process, 20 C.F.R. Â§ 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 affective disorder/bipolar
disorder, 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 2-3, Record at 21-22; that she
had the residual functional capacity ("RFC") to
perform a full range of work at all exertional levels, except
that she could understand and remember only simple
instructions, could execute only simple tasks, could interact
with coworkers and supervisors but not the general public,
and could adapt only to occasional changes in the routine
workplace, Finding 4, id. at 23; that she had no
past relevant work, Finding 5, id. at 26; that,
considering her age (43 years old on her alleged disability
onset date, May 1, 2002), education (at least high school),
work experience, and RFC, there were jobs existing in
significant numbers in the national economy that she could
perform, Findings 6-9, id. at 26; and that she,
therefore, had not been disabled from May 1, 2002, through
the date of the decision, January 15, 2014, Finding 10,
id. 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§ 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§ 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 her past relevant work. 20 C.F.R. Â§ 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).
plaintiff's first point of dispute with the
administrative law judge's conclusions is her assertion
that she "does have an impairment or combination of
impairments that meet the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P. Appendix
1." Statement of Errors (ECF No. 17) Â¶ 2. Unfortunately,
she does not identify that impairment or the Listing and its
criteria that she claims to be met or equaled. Ordinarily,
that omission would doom her appeal at Step 3 of the
sequential evaluation process. E.g., White v.
Astrue, Civil Action No. 3:11-CV-1304-BH, 2012 WL
4866510, at *11 (N.D. Tex. Sept. 6, 2012); see also
Cahill v. Comm'r of Soc. Sec. Admin., Case No.
4:14-CV-00228, 2015 WL5064072, at *4 (E.D. Tex. Aug. 27,
in deference to the plaintiff's pro se status, I
have assumed that she intends to identify bipolar disease as
the impairment that she contends that the administrative law
judge should have found to meet a listing,  since her
filings in this appeal mention only "mental illness,
" Statement of Errors, and bipolar disease, Fact Sheet
for Social Security Appeals: Plaintiff (ECF No. 15). However,
even accepting that the plaintiff has identified bipolar
disease as the impairment that should have been found to meet
a listing, she has not identified the evidence in the record
that would support that conclusion, which is required of any
Step 3 appellant. Swisher v. Colvin, 2:14cv-316-JCN,
2015 WL 9455578, at *3 (D. Me. Dec. 23, 2015). See also
Rawstron v. Social Sec. Admin. Comm'r, No.
2:13-cv-00119-NT, 2014 WL 1806864, at *2 (D. Me. May 6,
2014). Nor has she explained how that evidence meets or
equals the listing for bipolar disease, another requirement
of a Step 3 appeal. Pierce v. Astrue, No.
1:10-cv-242-JAW, 2011 WL 2678919, at *5 (D. Me. July 7,
plaintiff has not demonstrated entitlement to remand on this
plaintiff asserts that, contrary to the administrative law
judge's finding, Record at 26, she "does have past
re[lev]ant work." Statement of Errors Â¶ 4. Her itemized
statement fails to identify any such work or cite to any
evidence in the record of such work. At oral argument, she
identified this work as occurring in 1991,  when she
worked as a cashier, and since that time seasonal work in a
farm stand. In any event, a finding that past relevant
existed would require the administrative law judge to
determine whether the plaintiff could return to that work. If
he determined that she could not, his ultimate decision would
not change. If he determined that she could return to that
work, her application for benefits would be denied for that
reason. Thus, any appeal based on this issue could not result
in an outcome favorable to the plaintiff. Accordingly, this
court cannot provide a remand on this basis. Bowden v.
Colvin, No. 1:13-CV-201-GZS, 2014 WL 1664961, at *4 (D.
Me. Apr. 25, 2014).
final issue raised by the plaintiff's statement of errors
is an assertion that "due to mental illness[, ]"
she "does not always have the residual functional
capacity to perform a full range of work at all exertional
levels[, ]" and she "is not able to perform [the
jobs listed by the administrative law judge as jobs that she
can perform] for enough of a length of time to support
herself." Statement of Errors Â¶Â¶ 3, 5. Mental illness,
however, generally has no effect on a claimant's ability
to perform physically at a given exertional level, and the
plaintiff does not suggest that her ...