United States District Court, D. Maine
BARRY N. DUBORD, JR., Plaintiff
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant
H. Rich III United States Magistrate Judge.
Social Security Disability (“SSD”) and
Supplemental Security Income (“SSI”) appeal
questions the administrative law judge's failure to find
that the plaintiff's post-traumatic stress disorder
(“PTSD”) was a severe impairment, her treatment
of the opinion of a treating medical source, her evaluation
of credibility, and her alleged interpretation of raw medical
data. I affirm the commissioner's decision.
accordance with 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, 2013, Finding 1, Record at
13; that he suffered from degenerative disc disease of the
lumbar spine, depression, and an anxiety disorder,
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 13-14; that he had the residual
functional capacity (“RFC”) to perform light
work, except that he could understand, remember, and carry
out simple, repetitive instructions, would need to avoid work
with the general public but could interact appropriately with
coworkers and supervisors, and could adapt to routine changes
in the work setting, Finding 5, id. at 16; that, he
could perform his past relevant work as a newspaper deliverer
and inserting machine operator, Finding 6, id. at
21; and that he, therefore, had not been disabled from
January 1, 2009, his alleged disability onset date, through
the date of the decision, August 28, 2014, 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, 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. §§ 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).
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), 416.920(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),
416.920(f); Social Security Ruling 82-62 (“SSR
82-62”), reprinted in West's Social Security
Reporting Service Rulings 1975-1982, at 813.
plaintiff's statement of errors also implicates 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
plaintiff contends that the administrative law judge should
have found that his PTSD was a severe impairment at Step 2.
Itemized Statement of Errors Pursuant to Local Rule 16.3
Submitted by Plaintiff (“Itemized Statement”)
(ECF No. 8) at 2-3. He asserts that the decision mentions
neither his PTSD nor the opinion of Aaron Blanchette, Psy.D.,
diagnosing his PTSD. He argues that this omission is not a
harmless error because “PTSD is central to
Plaintiff's limitations as set forth by a treating
source, and wrongfully rejected by the Decision.”
Id. at 3.
this district, assuming that an error has been made at Step 2
in failing to find a particular impairment to be severe, that
error is uniformly considered harmless, unless the plaintiff
can demonstrate how the error would necessarily change the
outcome of the plaintiff's claim.” Bernier v.
Colvin, No. 2:14-cv-178-JHR, 2015 WL 1780148, at *4 (D.
Me. Apr. 17, 2015) (quoting LaBonte v. Astrue, Civil
No. 09-358-P-S, 2010 WL 2024895, at *3 (D. Me. May 18,
2010)). The plaintiff's contention does not meet this
standard; neither a “wrongful” rejection of an
examining medical professional's report nor a failure to
adopt limitations found by that medical professional to
exist, to the extent that these are separate shortcomings,
standing alone, necessarily means that, absent such an error,
the outcome of the application would change in the
applicant's favor. He does not identify any specific
limitation resulting from PTSD in Dr. Blanchette's file
that would require a finding that the plaintiff was unable to
work before the date last insured or as of the date of his
application for SSI. See Beaulieu v. Colvin, No.
1:14-cv-335-DBH, 2015 WL 4276242, at *2 (D. Me. July 14,
2015) (“Because the plaintiff has cited no medical
evidence of work-related limitations due specifically to [the
alleged impairment at issue], he cannot establish that the
administrative law judge's failure to discuss [that
impairment] is anything other than harmless error.”).
addition, the administrative law judge did not in fact
“reject” Dr. Blanchette's opinions. Rather,
she noted that Dr. Blanchette found the plaintiff's
intellectual functioning to be in the low average range,
Record at 15 & 19, a limitation that is included in the
RFC that she assigned to the plaintiff. Id. at 16.
The fact that she did not assign a specific weight to Dr.
Blanchette's opinions does not necessarily mean that she
rejected them. Dr. Blanchette did diagnose chronic PTSD,
id. at 713, but his discussion of this diagnosis
suggests work-related limitations only of hypervigilance in
public, increased irritability or outbursts of anger, and
difficulty with concentration. Id. at 714. Dr.
Blanchette describes PTSD as an anxiety disorder.
Id. at 713.
administrative law judge found that the plaintiff suffered
from an anxiety disorder, id. at 13, and Dr.
Blanchette mentions no anxiety disorder other than PTSD.
Id. at 708-15. Therefore, it is reasonable to infer
that Dr. Blanchette's diagnosis was adopted by the
administrative law judge, not rejected. Further, the
plaintiff's limitations that Dr. Blanchette associated
with PTSD are accounted for in the RFP assigned to him by the
administrative law judge, which limits him to simple,
repetitive instructions, directs that he avoid work with the
general public, and limits required adaptation to routine
changes in the work setting. Id. at 16.
administrative law judge does not include in her RFC any
limitation due to “outburst of anger, ” even if
that alternative to increased irritability listed in Dr.
Blanchette's report were found to affect the plaintiff,
but the plaintiff has made no attempt to show that a
restriction to work that does not involve contact with the
public would not sufficiently address such a
symptom. See generally Barber v. Astrue,
No. 09-CV-226-TLW, 2010 WL 3369145, at *5 (N.D. Okla. Aug.
20, 2010) (outbursts of anger not necessarily disabling;
condition is responsive to control through counseling,
medication, and self-discipline).
plaintiff is not entitled to remand based on his Step 2
argument. Pagan v. Colvin, C.A. No. 13-CV-30027-MAP,
2014 WL 1281457, at *6 (D. Mass. Mar. 26, 2014) (noting that
administrative law judge's examination of plaintiff's
anxiety “necessarily ...