United States District Court, D. Maine
REPORT AND RECOMMENDED
H. Rich III United States Magistrate Judge
plaintiff in this well-traveled Social Security Disability
(“SSD”) case contends that the administrative law
judge committed several reversible errors, at Steps 2 and 5
of the commissioner’s sequential evaluation process,
including mishandling the medical evidence, wrongly relying
upon an unsupported medical opinion, wrongly weighing
retrospective opinions, and failing to comply with the remand
order of the Appeals Council. For the reasons that follow, I
recommend that the court vacate the commissioner’s
decision and remand the action for further proceedings.
accordance with 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 March 31,
1992, Finding 1, Record at 620; that, through the date last
insured, he suffered from a generalized anxiety disorder, an
impairment that was not severe, Findings 3-4, id. at
621-22; that, through the date last insured, he accordingly
was not under a disability, as that term is defined in the
Social Security Act, Finding 5, id. at 625; that, in
the alternative, through the date last insured, his
anxiety-related disorder was severe, but 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 6-7, id.; that,
through the date last insured, he had the residual functional
capacity (“RFC”) to perform a full range of work
at all exertional levels except that he was limited to simple
work with no public contact, Finding 8, id. at 626;
that, through the date last insured, he was unable to perform
any past relevant work, Finding 9, id. at 629; that,
given his age (44 years old, on the date last insured),
education (at least high school), work experience, and RFC,
and using the Medical-Vocational Rules in Appendix 2 to 20
C.F.R. Part 404, Subpart P, as a framework for
decision-making, there were jobs existing in significant
numbers in the national economy through the date last insured
that he could have performed, Findings 10-13, id. at
629-30; and that he, therefore, had not been disabled from
August 1, 1988, through the date last insured, March 31,
1992, Finding 14, id. at 630. The Appeals Council
declined to review the decision, id. at 595-98,
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).
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).
administrative law judge reached 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).
statement of errors also implicates 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. §
404.1520(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.
plaintiff argues that the administrative law judge erred in
“concluding that the analysis should terminate at Step
2.” Plaintiff’s Itemized Statement of Errors
(“Itemized Statement”) (ECF No. 12) at 5. He does
not identify in this section of his brief the “mental
impairments, ” id., that he contends should
have been found to be severe at Step 2, nor does he suggest
how reaching such a determination would necessarily change
the outcome of his application, as is required by established
case law in this district. E.g., Bolduc v. Astrue,
Civil No. 09-220-B-W, 2010 WL 276280, at *4 n.3 (D. Me. Jan.
19, 2010) (and cases cited therein). Ordinarily, this
omission would mean that he is not entitled to remand based
on this argument.
difference in this case, however, is that the administrative
law judge who made the finding at Step 2 that the plaintiff
had no severe impairments was acting on remand after a
different administrative law judge had found that the
plaintiff’s anxiety disorder was severe, but that it
did not affect the occupational base of unskilled work.
Record at 18-21, 35-38.
Bolduc, I observed in a footnote that the
plaintiff’s failure to show that the error she had
alleged was not harmless doomed her appeal at Step 2. 2010 WL
276280, at *4 n.3. The administrative law judge in that case
did not reverse an earlier decision that was favorable to the
claimant, as was the case here. In this case, the
administrative law judge came to the opposite conclusion at
Step 2 from that made by the first judge without explaining
that difference. Record at 622-25. See Magee v.
Astrue, No. 4:11-cv-48-RLY-TAB, 2012 WL 1156429 (S.D.
Ind. Apr. 6, 2012)(administrative law judge on remand with
same medical record may not change severe finding to not
severe without explanation for doing so).
court has addressed similar reversals in the past. In those
cases, I noted that reconsideration of the finding at Step 2
that a claimant’s impairment is severe is foreclosed
when the remand order does not specifically direct the
administrative law judge to undertake that task. Day v.
Astrue, No. 1:12-cv-141-DBH, 2012 WL 6913439, at *5 (D.
Me. Dec. 30, 2012); Maddocks v. Astrue, No.
1:11-cv-461-NT, 2012 WL 5255197, at *3 (D. Me. Sept. 30,
2012) (in the absence of “persuasive evidence that the
administrative law judge labored under a basic misconception
of the evidence, it would be inappropriate to disturb prior
administrative findings that have never been
challenged”). Nothing in my earlier decision
recommending that the first decision be vacated may
reasonably be construed to direct the administrative law
judge to revisit the Step 2 finding.Report and Recommended
Decision, Staples v. Astrue, Civil No. 09-440-P-S
(ECF No. 18). Record at 705-18. See also Drummond v.
Commissioner of Soc. Sec., 126 F.3d 837, 842
(6th Cir. 1997) (administrative law judge may not
on remand change finding of severe to not severe absent
evidence of improvement in claimant’s condition).
court’s opinion in 2010 that vacated the decision of
the first administrative law judge at Step 5 did not permit
the second administrative law judge to reject the Step 2
finding of severity by the first administrative law judge.
Because that error unfairly deprived the plaintiff of a
finding in his favor at Step 2, where the burden of proof is
de minimis, the plaintiff is entitled to yet another
benefit of the parties on remand, and in the hope of
minimizing the time and effort to be spent in yet another
consideration by the commissioner, I will briefly address the
plaintiff’s arguments concerning ...