United States District Court, D. Maine
H. Rich III United States Magistrate Judge.
Supplemental Security Income (“SSI”) appeal, the
plaintiff contends that the administrative law judge wrongly
concluded that none of her impairments were severe. I agree,
vacate the commissioner's decision, and remand this case
for further action.
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 degenerative
disc disease, thyroid disorder, migraine headaches, obesity,
and affective, anxiety-related and attention deficit
hyperactivity (“ADHD”) disorders, Finding 2,
Record at 13, medically determinable impairments that,
considered separately or in combination, did not
significantly limit, or were not expected to significantly
limit, the plaintiff's ability to perform basic
work-related activities for 12 consecutive months, Finding 3,
id.; and that she, therefore, had not been disabled,
as that term is defined in the Social Security act, from
December 9, 2011, the date of her application for benefits,
through the date of the decision, February 27, 2014, Finding
4, id. at 18. 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).
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).
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).
plaintiff begins with the assertion that the administrative
law judge's decision that none of the plaintiff's
impairments were severe is not supported by substantial
evidence, and, in the case of her mental impairments,
“is directly contradicted by all of the medical
opinions of record.” Plaintiff's Itemized Statement
of Errors (“Itemized Statement”) (ECF No. 13) at
4. She addressed only the mental impairments in her statement
of errors, and, therefore, only those impairments are before
this court. Local Rule 16.3(a)(2)(A) (requiring itemization
of specific errors upon which plaintiff seeks remand).
administrative law judge found that the plaintiff has no
limitations in the activities of daily living, no limitations
in social functioning, and no limitations in concentration,
persistence, or pace. Record at 16. She found no episodes of
decompensation of extended duration. Id. at 17.
These are the four functional areas to be evaluated in
assessing the severity of mental impairments. 20 C.F.R.
§ 416.920a(c)(3). She gave little weight to the opinions
of two state-agency psychologists, Thomas Knox, Ph.D., and
David Houston, Ph.D., each of whom found that the plaintiff
had moderate limitations in concentration and persistence,
because those findings were “inconsistent with other
significant evidence of record[, ]” which she
specified. Record at 17. She also gave little weight to the
assessment of Keith Young, LCPC (a treating source, but not
an acceptable medical source under Social Security
regulations, 20 C.F.R. § 416.913(a)) because he did not
perform any testing, did not describe any clinical findings
to support his assessment, stated that he was relying on the
plaintiff's report of symptoms and of how she would react
to work responsibilities and pressures, and made observations
inconsistent with his assessment. Record at 17-18.
difficulty with the plaintiff's submission was her
failure, at the outset, to specify the mental impairment or
impairments that the administrative law judge should have
found to be severe. See Coutu v. Colvin, No.
1:13-cv-00317-JAW, 2014 WL 5454527, at *2 (D. Me. Oct. 27,
2014) (where claimant does not identify specific impairment
that he contends should have been found severe at Step 2,
court cannot determine whether applicable legal standard
requires remand). However, because the plaintiff relies,
Itemized Statement at 4, on the reports of Dr. Knox and Dr.
Houston, the state-agency reviewer-psychologists, who both
found that the plaintiff's anxiety disorder was severe,
Record at 54, 67, I consider that impairment. The plaintiff
also refers to the “therapist treating Ms. Priest,
” Itemized Statement at 5, apparently Young, who
diagnosed a major depressive disorder, post-traumatic
distress disorder (“PTSD”), and ADHD. Record at
1284. Each of these diagnoses is distinct from the general
diagnosis of an anxiety disorder, to which the plaintiff
eventually refers. Id. at 7. I limit my analysis to
the anxiety disorder.
plaintiff asserts, Itemized Statement at 5, that the
administrative law judge was required to adopt the conclusion
of the state-agency psychologists that her anxiety disorder
was severe because there is no contradictory opinion in the
record. There is contradictory medical evidence in the
record, as the defendant recounts, Defendant's Opposition
to Plaintiff's Statement of Errors
(“Opposition”) (ECF No. 15) at 10-14. While they
are not opinions, reports of normal mental status upon
examination, some of them after the dates of the reports of
the state-agency psychologists, e.g., Record at 730,
889, 891, 893, 895, 900, 902, 1045-46, 1058, 1073, 1227,
1232, are cited by the administrative law judge and are not
the type of raw medical data that a layperson is prohibited
to evaluate. See Morey v. Colvin, C.A. No.
14-433M, 2015 WL 9855873, at *13-*14 (D.R.I. Oct. 5, 2015)
(administrative law judge may rely on normal mental status
examinations without expert interpretation). The
administrative law judge sets out much of this data in her
opinion. Id. at 16-18.
first case cited by the plaintiff as authority is
distinguishable. In Rivera-Figueroa v. Secretary of
Health & Human Servs., 858 F.2d 48 (1st Cir. 1988),
the issue was the plaintiff's physical residual
functional capacity (“RFC”), a concept that only
becomes relevant at Steps 4 and 5 of the sequential
evaluation process. The court found that the administrative
law judge could not assess RFC without an expert opinion on
the point, under the circumstances of that case, and that his
reliance on “the grid, ” a table directing
outcomes at certain exertional levels and ages when a
claimant's impairments impose no significant limitations
on the ability to perform work-related functions, was
improper “in view of claimant's history of
treatment for a significant mental disorder.”
Id. at 52. None of the circumstances found
determinative in that case are present here.
v. Colvin, No. 1:12-cv-194-JAW, 2013 1345519 (D. Me.
Mar. 14, 2013), is a different matter. In that case, the
administrative law judge made a finding of nonseverity at
Step 2 in a case with seven expert opinions on the issue in
the record, after rejecting the opinion of a treating source,
which was the only opinion issued after the plaintiff had
been hospitalized for a suicide attempt and received
post-hospitalization mental health treatment. Id. at
*4. I concluded that, under the circumstances of that case,
“it cannot fairly be said that the record makes it
clear to a layperson as a matter of common sense that,
following the plaintiff's suicide attempt, she was
restored to her baseline state as reflected in . . . a GAF
score of 70, indicative of mild symptoms.” Id.
case at hand, a treating professional and both state-agency
psychologists opined that the plaintiff suffered from a
severe mental impairment, and there is no professional
opinion to the contrary in the record. Given the de
minimis standard of proof applicable at Step 2, it was
error for the administrative law judge to conclude that the
plaintiff's diagnosed mental impairment or impairments
would have no more than a minimal effect on her ability to
perform work, even if there was some evidence in the record
that could be interpreted to contradict the uniform
professional opinions to the contrary.
mindful that, even given the administrative law judge's
error in finding the plaintiff's anxiety disorder
non-severe at Step 2, the plaintiff must still show that, had
the administrative law judge not made the error, the outcome
of her claim would have been different. 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). At oral
argument, the plaintiff's attorney contended that the
outcome would have been different because Young's opinion
was that the plaintiff could not maintain regular attendance
and be punctual at any job, could not complete a normal
workday and workweek, and could not perform at a consistent
pace. Record at 1286. Once the existence of an impairment has
been established, the opinion of an