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Brigham v. Colvin

United States District Court, D. Maine

September 19, 2016

CHRISTOPHER BRIGHAM, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

          MEMORANDUM DECISION [1]

          John H. Rich III, United States Magistrate Judge.

         This Social Security Disability (“SSD”) and Supplemental Security Income (“SSI”) appeal raises the questions of whether the administrative law judge wrongly ignored a finding of the state Department of Health and Human Services and whether the residual functional capacity (“RFC”) assigned to the plaintiff was fatally flawed. I 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 that the plaintiff suffered from chronic obstructive pulmonary disorder (“COPD”), history of head trauma, right shoulder injury, and degenerative disc disease, 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 3-4, Record at 13-14; that he had the RFC to perform light work, except that he had limited push and pull with the right upper extremity, could occasionally climb ramps and stairs but never climb ladders, ropes, or scaffolds, could occasionally stoop, kneel, and crouch but never crawl, could occasionally reach overhead and to the front and/or sides with the right upper extremity, could not constantly reach on the right side, should avoid concentrated exposure to cold, humidity, and heat, and should avoid even moderate exposure to fumes, odors, dust, gasses, and poor ventilation as well as hazards, Finding 5, id. at 15; that he was unable to perform any past relevant work, Finding 6, id. 19; that, considering his age (44 years old on his alleged disability onset date, August 31, 2011, at least high school education, work experience, and RFC, there were jobs existing in significant numbers in the national economy that he could perform, Findings 7-10, id. at 20; and that he, therefore, had not been disabled from his alleged disability onset date through the date of the decision, March 28, 2014, Finding 11, id. at 21. 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, 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. §§ 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 his 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).

         I. Discussion

         A. DHHS Disability Finding

         The plaintiff faults the administrative law judge for failing to mention a disability finding of the Maine Department of Health and Human Services which he says “was e-filed prior to the decision and was duly included in the record.” Plaintiff's Itemized Statement of Errors (“Itemized Statement”) (ECF No. 13) at 5.

         Evidence to be considered by the administrative law judge must be submitted no later than five business days before the date of the hearing. 20 C.F.R. § 405.331(a). The plaintiff was informed of this requirement in the notice of hearing that was sent to him. Record at 153. The hearing in this case was held on February 6, 2014. Record at 36. The document in question is dated February 26, 2014, id. at 35, and is stamped “Mar 4 2014” at the top of the first page. Id. at 27. Either date is after the hearing. The plaintiff's attorney at the hearing did not request leave to submit any additional evidence. Record at 39, 53, 59.

         The fact that this document was added to the administrative record on March 26, 2014, was established when I granted (ECF No. 20) the plaintiff's motion to correct the record (ECF No. 18 and ECF No. 18-1), without objection by the defendant (ECF No. 19). The administrative law judge's opinion is dated March 28, 2014. Record at 21.

         There is no indication in the record that the submission of this document on March 26, 2014, was accompanied by any attempt to demonstrate that the requirements of 20 C.F.R. § 405.331(c) for submission of additional evidence after the hearing and before the hearing decision was issued. An applicant for benefits who wishes to submit additional evidence during this period of time must meet the following requirements:

[T]he administrative law judge will accept the evidence if you show that there is a reasonable possibility that the evidence, alone or when considered with the other evidence of record, would affect the outcome of your claim, and:
(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from submitting the ...

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