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Lacroix v. Colvin

United States District Court, D. Maine

May 5, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant


          JOHN H. RICH III, Magistrate Judge.

         This Social Security Disability ("SSD") appeal raises the question of whether the administrative law judge supportably found the plaintiff capable of performing past relevant work as a cashier. The plaintiff seeks remand on the bases that the administrative law judge erred in (i) finding that she had a severe impairment of brachial plexitis neuralgia rather than myalgia/myositis and chronic pain syndrome, (ii) failing to apply section 201.14 of the so-called "Grid, " Appendix 2 to Subpart P, 20 C.F.R. § 404, to find her disabled, and (iii) giving insufficient weight, in assessing her residual functional capacity ("RFC"), to the opinions of treating sources Garrett Edwards, D.O., and Donna Kim, M.D. See Plaintiff's Statement of Errors ("Statement of Errors") (ECF No. 12) at 5-18.[2] I find no reversible error and, accordingly, recommend that the court affirm the commissioner's decision.

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 404.1520; 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 23; that she had a severe impairment of brachial plexitis neuralgia, Finding 3, id.; that she had the RFC to perform medium work as defined in 20 C.F.R. § 404.1567(c), except that she could lift less than five pounds with her non-dominant right arm and could lift and carry 20 pounds frequently and 50 pounds occasionally with both upper extremities and could never perform overhead reaching with the right upper extremity, Finding 5, id. at 24; that she was capable of performing past relevant work as a cashier, which did not require the performance of work-related activities precluded by her RFC, Finding 6, id. at 27; and that she, therefore, had not been disabled from January 11, 2012, her alleged onset date of disability, through the date of the decision, March 28, 2014, Finding 7, 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. § 404.981; 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); 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 4 of the sequential evaluation process, at which stage the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. § 404.1520(f); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). At this step, the commissioner must make findings of the plaintiff's RFC and the physical and mental demands of past work and determine whether the plaintiff's RFC would permit performance of that work. 20 C.F.R. § 404.1520(f); Social Security Ruling 82-62 ("SSR 82-62"), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.

         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. Misidentification of Severe Impairment

         The administrative law judge found that the plaintiff suffered from a severe impairment of brachial plexitis neuralgia, noting that she had been treated for right shoulder and arm pain that reportedly limited her ability to lift heavy objects and had more than a minimal effect on her ability to perform work-related activities. See Record at 24.

         This was error. The plaintiff correctly points out that the record does not support the existence of a medically determinable impairment of brachial plexitis neuralgia. See Statement of Errors at 5-6. "Symptoms, such as pain, fatigue, shortness of breath, weakness, or nervousness, will not be found to affect an individual's ability to do basic work activities unless the individual first establishes by objective medical evidence (i.e., signs and laboratory findings) that he or she has a medically determinable physical or mental impairment(s)[.]" Social Security Ruling 96-3p, reprinted in West's Social Security Reporting Service Rulings 1983-1991 (Supp. 2015) ("SSR 96-3p"), at 117. While, as of March 13, 2012, Dr. Kaminow suspected the plaintiff might have "an idiopathic brachial plexitis[, ]" Record at 317, he abandoned that possible diagnosis as of May 8, 2012, stating that it "seem[ed] more likely she has a myositis[, ]" id. at 313. There is no other reference of record to that condition other than in physical therapy notes. See, e.g., id. at 399-401, 404-05. As the plaintiff's counsel observed at oral argument, a physical therapist is not an "acceptable medical source" for purposes of establishing the existence of a medically determinable impairment. See, e.g., 20 C.F.R. § 404.1513(a).

         Nonetheless, as the commissioner rejoins, see Defendant's Opposition to Plaintiff's Itemized Statement of Errors ("Opposition") (ECF No. 15) at 14, "an error at Step 2 is uniformly considered harmless, and thus not to require remand, unless the plaintiff can demonstrate how the error would necessarily change the outcome of the plaintiff's claim[, ]" Bolduc v. Astrue, No. 09-220-B-W, 2010 WL 276280, at *4 n.3 (D. Me. Jan. 19, 2010).

         The plaintiff contended, in her statement of errors, that this error was not harmless because the administrative law judge should have found that she had severe impairments of fibromyalgia and chronic pain syndrome, which involve pain in the muscles and joints, rather than pain due to a neurologic cause. See Statement of Errors at 6. She asserted that, if the administrative law judge had properly identified her impairment(s), she would have been required to give greater weight to her description of her pain/weakness and to the RFC opinions of Drs. Edwards and Kim. See id. at 6-7. Yet, as noted above, the plaintiff's counsel acknowledged at oral argument that Dr. Kaminow merely suspected that the plaintiff had fibromyalgia and did not diagnose it. With respect to the plaintiff's asserted chronic pain syndrome, the commissioner correctly notes that Dr. Kim merely checked a box on a questionnaire indicating that the plaintiff had that condition, which does not suffice to establish the existence of a medically determinable impairment. See Opposition at 14; Record at 727; SSR 96-3p at 117.

         Nor, from all that appears, is myalgia/myositis a medically determinable impairment. While Dr. Kaminow, who saw the plaintiff on four occasions from March 13, 2012, through July 5, 2012, recorded myalgia and myositis among his "assessments" on each of those occasions, see Record at 311, 313, 315, 317, his final treatment note indicated continuing uncertainty about the etiology of her pain:

The [plaintiff] does have trigger points which are predominantly right-sided. I suspect she does have fibromyalgia but would like to see the results of her allergy testing. [A]t this point she states she cannot work. If that is the case, she should have a functional work capacity done by a physical therapist. If she continues to progress it may be worth referring her to a rheumatologist but I will leave this up to Dr. Kim.

Id. at 311.

         With the benefit of review of then-available evidence that included the Kaminow treatment notes, neither of the two agency nonexamining consultants whose opinions are of record, Donald Trumbull, M.D., and Richard T. Chamberlin, M.D., found medically determinable impairments of myositis or myalgia. See id. at 78, 80, 89, 92. Indeed, Dr. Chamberlin stated that the medical evidence failed to reveal any medically determinable impairment relative to the plaintiff's right shoulder. See id. at 92.[3]

         As counsel for the commissioner contended oral argument, because the record amply supports a finding that there is no medically determinable shoulder impairment, in assessing any shoulder limitations whatsoever, the administrative law judge reached an RFC determination more favorable than the record supports. The plaintiff's counsel implicitly acknowledged as much when, at oral argument, he sought remand for a new hearing for an opinion by a medical expert regarding what, if any, severe impairment(s) his client had. In such circumstances, there cannot be harmful error. See, e.g., Peak v. Colvin, No. 2:15-cv-67-JHR, 2015 WL 7681256, at *3 (D. Me. ...

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