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Newcomb v. Colvin

United States District Court, D. Maine

July 22, 2016

JODI M. NEWCOMB, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

          REPORT AND RECOMMENDED DECISION [1]

          John H. Rich III United States Magistrate Judge

         This Social Security Disability (“SSD”) and 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. The plaintiff seeks remand on the bases that the administrative law judge (i) improperly considered materials from a prior claim, (ii) failed to identify the plaintiff’s personality disorder as a severe impairment, (iii) neglected to evaluate whether the plaintiff’s personality disorder met or equaled Listing 12.08, one of the so-called “Listings, ” Appendix 1 to 20 C.F.R. Part 404, Subpart P, (iv) made a mental residual functional capacity (“RFC”) determination that did not adequately reflect his findings that the plaintiff had moderate limitations in social functioning and in concentration, persistence, or pace, and (v) erred in not according controlling or greatest weight to the opinions of treating physician Hal Cohen, D.O., and significant weight to the opinions of treating counselor Patrick McGrath-Conwell, LCPC. See Plaintiff’s Statement of Errors (“Statement of Errors”) (ECF No. 13) at 5-15.[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, 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 September 30, 2010, Finding 1, Record at 54; that she had severe impairments of fibromyalgia with some evidence of degenerative disc disease of the lumbar spine, an organic mental disorder/attention-deficit hyperactivity (“ADHD”) disorder, and an anxiety-related disorder/anxiety, not otherwise specified, Finding 3, id. at 55; that she did not have an impairment or combination of impairments that met or medically equaled the severity of one of the Listings, Finding 4, id.; that she retained the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 404.967(b), except that she could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps, stairs, ladders, ropes, or scaffolds, could understand and remember simple instructions, could accomplish simple tasks on a consistent schedule to complete a workday and workweek, could interact with coworkers and supervisors, but not the general public, and could adapt to occasional routine changes in the workplace, Finding 5, id. at 58; that, considering her age (33 years old, defined as a younger individual, on her alleged disability onset date, August 19, 2010), education (at least high school), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that she could perform, Findings 7-10, id. at 66; and that she, therefore, had not been disabled from August 19, 2010, through the date of the decision, May 9, 2014, Finding 11, id. at 67. 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).[3]

         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 Steps 2 and 3 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).

         At Step 3 of the sequential evaluation process, the claimant bears the burden of proving that her impairment or combination of impairments meets or equals a listing. 20 C.F.R. §§ 404.1520(d), 416.920(d); Dudley v. Secretary of Health & Human Servs., 816 F.2d 792, 793 (1st Cir. 1987). To meet a listing, the claimant’s impairment(s) must satisfy all criteria of that listing, including required objective medical findings. 20 C.F.R. §§ 404.1525(c)(3), 416.925(c)(3). To equal a listing, the claimant’s impairment(s) must be “at least equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R. §§ 404.1526(a), 416.926(a).

         I. Discussion

         A. Reference to Prior Claim

         The plaintiff first complains that the administrative law judge erred in including, in the record in this case, select materials from a prior SSD/SSI claim, namely, the adverse decision of a different administrative law judge dated August 18, 2010, a Decision Review Board (“DRB”) notice dated December 17, 2010, explaining that, because the DRB had not completed its review during the time allowed, the December 2010 decision had become the final decision of the commissioner, and a January 6, 2012, decision of this court recommending affirmance of the 2010 decision. See Statement of Errors at 5; Record at 219-30, 240-42, 244-61. The recommended decision was affirmed on January 24, 2012.

         The plaintiff contends that these materials were highly prejudicial, particularly the administrative law judge’s credibility assessment and finding that the plaintiff had no severe impairment at Step 2. See Statement of Errors at 6. She argues that the administrative law judge clearly took this “irrelevant and prejudicial information” into consideration, given that he was “highly selective” in choosing which exhibits to include from the prior claim and referred to the December 2010 decision during each of two hearings held in this case (on June 5, 2012, and March 27, 2014) as well as in his May 9, 2014 decision. Id. at 5-7; see also Record at 77, 160. She argues that this conduct violated her rights to due process and to a fair de novo hearing, see Statement of Errors at 5, contending that prejudice is apparent from the administrative law judge’s own words in his unfavorable decision, in which he referred to the 2010 case as “this case, ” id. at 6-7.

         “[A]pplicants for social security disability benefits are entitled to due process in the determination of their claims.” Holohan v. Massanari, 246 F.3d 1195, 1209 (9th Cir. 2001); see also, e.g., Yount v. Barnhart, 416 F.3d 1233, 1235 (10th Cir. 2005) (“Social security hearings are subject to procedural due process considerations.”). “At a minimum, the Constitution requires notice and some opportunity to be heard. Above that threshold, due process has no fixed content; it is flexible and calls for such procedural protections as the particular situation demands.” Mallette v. Arlington County Employees’ Supplemental Ret. Sys. II, 91 F.3d 630, 640 (4th Cir. 1996) (citations and internal quotation marks omitted); see also, e.g., Eze v. Gonzáles, 478 F.3d 46, 47 (1st Cir. 2007) (“[N]otice and an opportunity to be heard together comprise an essential principle of due process [.]”) (citations and internal quotation marks omitted).

         To be entitled to remand on this basis, a Social Security claimant must demonstrate not only the existence of a due process violation but also resulting prejudice. See, e.g., Chuculate v. Barnhart, 170 Fed.Appx. 583, 587 (10th Cir. 2006) (rejecting claim of due-process violation predicated on administrative law judge’s denial of permission to submit post-hearing written question to vocational expert when “the ALJ’s [administrative law judge’s] failure to forward plaintiff’s unsupported question does not undermine confidence in the result in this case”); Adams v. Massanari, 55 Fed.Appx. 279, 286 (6th Cir. 2003) (“Clearly, in this case, the procedure used by the ALJ did not erroneously deprive Appellant of her interest in the fair determination of her eligibility for benefits, since the ALJ’s decision to withhold [a post-hearing] report from the ME [medical expert] had no determinative effect on the outcome of Appellant’s hearing.”).

         The plaintiff fails to show either the existence of a procedural due process violation or resulting prejudice.

         The plaintiff identifies no specific objectionable remark made by the administrative law judge during the June 5, 2012, hearing. See Statement of Errors at 5-7. As the commissioner points out, see Opposition at 4-5, although the plaintiff identifies specific comments made during the March 27, 2014, hearing, she misunderstands them. She asserts that the administrative law judge “asked the Plaintiff’s representative what had changed since the unfavorable decision on [the] prior claim.” Statement of Errors at 6 (citing Record at 88). She protests that she does not have the burden to show that there was new evidence that would have changed the determination on the prior claim, which covered a different alleged period of claimed disability. See id.

         However, in the cited portion of the hearing transcript, the administrative law judge made no such inquiry. Rather, he asked what evidence was new, as of the date of the second hearing in this case, that would have changed the opinions of agency reviewers Brian Stahl, Ph.D., and Mary A. Burkhart, Ph.D. See Record at 87-88; see also id. at 268-70, 852-65. Those opinions, issued in 2011, were provided in connection with this case, not the 2010 decision. See id. at 268-70, 852-65.

         As the commissioner observes, see Opposition at 5-6, the plaintiff also misunderstands the excerpt from the May 9, 2014, hearing decision on which she relies. She notes that the administrative law judge stated, “On July 17, 2012, the undersigned issued an unfavorable decision in this case finding the claimant not disabled under Title II and Title XVI of the Social Security Act.” Statement of Errors at 5 (quoting Record at 51) (emphasis added by plaintiff). However, the administrative law judge clearly referred not to the December 2010 decision of his colleague but to the earlier decision that he had issued in this case, which was vacated by order of the Appeals Council dated October 25, 2013. See Record at 51-52. Pursuant to that order, this case was remanded for further proceedings, which included the second (March 27, 2014) hearing. See id.

         As the commissioner argues, see Opposition at 3, the plaintiff fails to demonstrate that the mere fact that the administrative law judge included, as exhibits in the transcript of this case, unfavorable decisions on her prior claim constitutes a deprivation of her rights to due process or to a de novo hearing or was in any respect prejudicial. The administrative law judge explained, during the March 27, 2014, hearing, that he made the 2010 decision an exhibit because it was “agency practice and procedure in subsequent applications to include a prior ALJ’s decision in the exhibit file[.]” Record at 81. The plaintiff does not argue that this statement was incorrect, let alone indicative of the prejudgment of her case. See Statement of Errors at 5-7.

         In any event, as the commissioner points out, see Opposition at 4, the administrative law judge did not simply parrot findings from the 2010 decision. Rather, he discussed the evidence that had been submitted in connection with this case, identifying additional impairments and limitations that his colleague did not even consider, compare Findings 3, 5, Record at 55, 58 with Findings 3, 5, id. at 223, 225.[4]

         B. Failure to Find a Severe Personality Disorder Impairment

         The plaintiff next argues that the administrative law judge erred in failing to find a severe impairment of personality disorder, noting that she had been diagnosed with that disorder by several treating psychiatrists. See Statement of Errors at 7-8. This argument is unavailing for at least two reasons, as the commissioner notes. See Opposition at 6-9.

         First, the records cited by the plaintiff that were available to the administrative law judge contain nothing more than a bare diagnosis. See Statement of Errors at 7; Record at 1221, 1223, 1225, 1291, 1294, 1312. “[A] diagnosis[, ] . . . standing alone, does not establish the severity of the disease nor the limitations that result for a particular individual.” Dowell v. Colvin, No. 2:13-cv-246-JDL, 2014 WL 3784237, at *3 (D. Me. July 31, 2014). As counsel for the commissioner observed at oral argument, the plaintiff identifies no record evidence of limitations stemming from her personality disorder, let alone evidence that any such limitations were different in kind or degree from those assessed by the administrative law judge. Thus, even assuming that the administrative law judge erred, the error cannot provide a basis for remand. See, e.g., Bolduc v. Astrue, Civil No. 09-220-B-W, 2010 WL 276280, at *4 n.3 (D. Me. Jan. 19, 2010) (“[A]n 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.”).

         Second, the plaintiff did not fairly place the administrative law judge on notice that she claimed to have a severe personality disorder. When, as here, “a claimant is represented, the ALJ [] should ordinarily be entitled to rely on claimant’s counsel to structure and present the claimant’s case in a way that claimant’s claims are adequately explored.” Faria v. Commissioner of Soc. Sec., No. 97-2421, 1998 WL 1085810, at *1 (1st Cir. Oct. 2, 1998) (citation and internal quotation marks omitted).

         As the commissioner observes, see Opposition at 8, in Degenhardt v. Astrue, No. 1:11-cv-262-JAW, 2012 WL 1077456 (D. Me. Mar. 29, 2012) (rec. dec., aff’d Apr. 18, 2012), this court rejected a claimant’s argument that an administrative law judge erred in failing to find a severe personality disorder in circumstances in which the record contained diagnoses of the disorder by a state agency consulting psychologist and a treating mental health provider but the plaintiff cited no evidence that he made the administrative law judge aware that he was claiming personality disorder as an impairment, see Degenhardt, 2012 WL 1077456, at *3. The court noted that the claimant’s hearing memorandum listed personality disorder under the heading “Mental Health . . . Axis II, ” but then listed, under the heading “Assessment, ” only anxiety disorder and depressive disorder. Id. at *3 n.3 (internal quotation marks omitted). It found that “[t]his entry cannot reasonably be read to put the administrative law judge on notice that the plaintiff was claiming disability due to a personality disorder.” Id.

         In similar fashion, here, in an appendix to the plaintiff’s hearing memorandum, she listed her severe medically determinable impairments as depression/anxiety/ADHD and fibromyalgia/myalgia. See Record at 722-23. Although personality disorder was mentioned twice in record excerpts supporting the former category, once under Axis II and once as a diagnosis, see id., that did not suffice to highlight that the plaintiff claimed it as a severe Step ...


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