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Purdy v. Colvin

United States District Court, D. Maine

May 13, 2016

RITA PURDY, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

REPORT AND RECOMMENDED DECISION [1]

John H. Rich III United States Magistrate Judge

In this Supplemental Security Income (“SSI”) appeal, the plaintiff contends that the administrative law judge wrongly evaluated medical evidence and medical opinions, failed to discuss the weight given to state-agency reviewers’ reports and wrongly evaluated those reports, and that the testimony of the vocational expert was invalid. I recommend that the court affirm the commissioner’s decision.

In accordance with the commissioner’s sequential evaluation process, 20 C.F.R. § 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 status post knee replacement, degenerative disc disease, right shoulder rotator cuff bone spurs, chronic pain, dysthymia, anxiety disorder, attention deficit hyperactivity disorder (ADHD), and history of substance abuse in 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 2-3, Record at 14-15; that she had the residual functional capacity (“RFC”) to perform sedentary work, except that she should never climb ladders, ropes, or scaffolds, could rarely balance, crouch, crawl, kneel, or climb ramps or stairs, could not use foot controls, must avoid exposure to hazards such as unprotected heights, and could perform unskilled jobs with simple instructions and occasional interaction with others, Finding 4, id. at 16-17; that she had no past relevant work, Finding 5, Id. at 21; that, considering her age (36 years old on the date her application was filed, October 10, 2011, education (at least high school), and RFC, there were jobs existing in significant numbers in the national economy that she could perform, Findings 6-9, id.; and that she, therefore, had not been disabled from October 10, 2011, through the date of the decision, February 27, 2014, Finding 10, 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. § 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. § 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. § 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 plaintiff’s appeal 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 that her “femur/hip” impairment was severe. Plaintiff’s Itemized Statement of Errors (“Itemized Statement”) (ECF No. 13) at 5. She relies on a report of Michael Kessler, M.D., an orthopedist, that states that the “femur/hip” fracture “resulted in substantial physical limitations due to post- surgical malunion of the fracture.”[2] Id. She adds that the administrative law judge “improperly assessed the duration” of this impairment. Id. at 5-7.

The administrative law judge said the following about the fracture in her discussion at Step 2:

Although the claimant has been diagnosed with a left hip stress fracture, as of April 2013 (18F, 20F), this impairment is not “severe” as there is no evidence in the record that it has persisted or is expected to persist for 12 consecutive months as required by 20 CFR §§ 404.1509 and 416.909. A radiology report, dated 09/24/2013, revealed normal findings of the claimant’s femur, indicating her fracture was healing (17F/10).

Record at 14-15. The plaintiff characterizes this as an impermissible “lay opinion” by the administrative law judge. Itemized Statement at 5.

The defendant responds that the plaintiff immediately began to improve with treatment beginning after the stress fracture was diagnosed in April 2013. Defendant’s Opposition to Plaintiff’s Statement of Errors (“Opposition”) (ECF No. 16) at 3. Dr. Kessler expected the stress fracture to heal well and recommended conservative treatment. Record at 904-05. In June 2013, he reported a good range of motion in the plaintiff’s affected hip, id. at 900, and in September 2013, imaging showed that the fracture was healing. Id. at 894. In November 2013, Dr. Kessler observed that the plaintiff was not using a walker or a cane, she was walking with “minimal to no limp, ” and he stopped prescribing pain medication for the hip. Id. at 890-91. See, e.g., Rosario v. Colvin, Civil No. 14-1633(CVR), 2015 WL 2062030, at *4 n.4 (D.P.R. May 4, 2015) (administrative law judge not interpreting raw medical data when looking at record to see what medications and dosages were being administered and whether they changed).

Contrary to the plaintiff’s assertion, this is medical evidence about which a lay person may make a common sense judgment as to resulting work-related impairments. Gordils v. Secretary of Health & Human Servs., 921 F.2d 327, 329 (1st Cir. 1990); see, e.g., Jolicoeur v. Social Sec. Admin. ...


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