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Ryder v. Colvin

United States District Court, D. Maine

December 5, 2016

JEAN RYDER, 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”) appeal raises questions about a missing exhibit, the administrative law judge's conclusions concerning the limitations of the plaintiff's mental impairments, and the evidence supporting the administrative law judge's classification of the plaintiff's past relevant work.[2] I recommend that the court affirm the commissioner's decision.

         In 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 December 31, 2012, Finding 1, Record at 27; that, before that date, she suffered from degenerative disc disease status-post cervical fusion, chronic obstructive pulmonary disease (“COPD”), fibromyalgia, an affective disorder/depression, and an anxiety-related disorder/anxiety not otherwise specified, 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, id. at 28-29; that, before the date last insured, she had the residual functional capacity (“RFC”) to perform light work, except that she could occasionally climb ramps, stairs, ladders, ropes and scaffolds, had to avoid unprotected heights, had to avoid concentrated exposure to temperature extremes, humidity, fumes, odors, dust, gases, and poor ventilation, could understand, remember, and carry out simple to moderately complex instructions and tasks, and could interact with coworkers and supervisors but not the general public, Finding 5, id. at 31; that, before the date last insured, she was capable of performing her past relevant work as a sewing machine operator, id. at 34; and that she, therefore, had not been disabled at any time from January 22, 2010, the alleged date of onset of disability, through the date last insured, 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.

         I. Discussion

         A. Missing Documents

         The plaintiff asserts that the administrative law judge agreed at the hearing to admit “certain records” that were presented by the attorney who represented her at the time. Itemized Statement Statement at 4. The records were described at the time as “six pages of notes from Main[e] General Medical Center, Outpatient Psychiatric Services, and one pharmacy record for a new prescription[.]” Record at 38-39. The administrative law judge stated that he would “allow the admission of those items.” Id. at 39.

         The plaintiff states that these documents are not in the record. Itemized Statement at 4. She faults the administrative law judge for “fail[ing] to describe and discuss these missing records, ” which she speculates are “the very records from Dr. Almazen that the ALJ complained were not in the record.” Id. at 5. She has not submitted these documents to the court. The defendant agrees that the documents are not in the record, Defendant's Opposition to Plaintiff's Itemized Statement of Errors (ECF No. 19) at 2-3, but contends that the plaintiff has not met her burden to show resulting prejudice or impediment to judicial review in order to justify remand.

         This standard comes from Barnes v. Barnhart, 251 F.Supp.2d 973, 974 (D. Me. 2003), which is cited by both parties. Neither of the plaintiff's two arguments meets this standard.

         First, the plaintiff suggests, Itemized Statement at 5, that “it is impossible to tell . . . whether the new records were ever considered” by the state-agency reviewers, of whom the administrative law judge said “the clinical record of evidence includes nothing relevant that shows debilitating symptoms to which State agency consultants did not have access at the reconsideration level.” Record at 33. However, the possibility that the state-agency reviewers did not see the records, without production of the records themselves, is not enough to warrant remand. Without the records, there is no way to determine whether the records were in fact inconsistent with the opinions of the state-agency reviewers. If they were not, the plaintiff would not be entitled to relief. A claimant, who is in the best position to supply new copies of the missing records, may not profit from failing to do so.[3] The plaintiff's first argument fails because the plaintiff has not shown prejudice or unfairness, and, therefore, has not provided a basis for remand. See generally Bard v. Astrue, No. 1:12-cv-22-NT, 2012 WL 5258197, at *2-*3 (D. Me. Sept. 28, 2012).

         The plaintiff's second argument is even more speculative. She suggests that the missing records may be “the very records from Dr. Almazen that the ALJ complained were not in the record.” Itemized Statement at 5. The portion of the administrative law judge's opinion to which this argument refers is the following:

More specifically, after the claimant expressed thoughts of harming herself in May 2011, notes from primary care provider Kathy Brooks-Rock, N.P. at Sebasticook indicate Ms. Ryder was referred to a Dr. Almazon for mental health issues (Exhibit B9F/35). However, there are no treatment notes from this doctor in evidence. Additionally, Ms. Rock's notes go on to show the claimant only saw Dr. Almazon very briefly. In September 2011, the nurse wrote Ms. Ryder “states she is going to stop going to Dr. Almazon as she does not like her-does not feel that they connect although she did put her on Sertraline and it worked[.]”

Record at 32. Nothing is apparent in the plaintiff's submission to tie this statement to the records that the plaintiff's previous attorney apparently submitted at the hearing. “Mere conjecture or speculation that additional evidence might have been obtained in the case is insufficient to warrant a remand.” Bard, 2012 ...


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