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Dubord v. Colvin

United States District Court, D. Maine

December 20, 2016

BARRY N. DUBORD, JR., Plaintiff
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant


          John H. Rich III United States Magistrate Judge.

         This 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.

         In 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).

         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 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.

         The 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 Ruling 85-28).

         I. Discussion

         A. Step 2 Issue

         The 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.

         “[I]n 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.”).

         In 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.

         The 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.[2] 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.

         The 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.[3] 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).

         The 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 ‚Äúnecessarily ...

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