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Chapman v. Colvin

United States District Court, D. Maine

December 26, 2016

LEE CHAPMAN, 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”) and Supplemental Security Income (“SSI”) appeal raises the question of whether the administrative law judge supportably found the plaintiff capable of performing work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that the administrative law judge (i) ignored a Maine Department of Health and Human Services (“DHHS”) disability determination and (ii) improperly rejected an opinion of treating physician Charles Kriegel, D.O. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 11) at 4-9.[2] I find no reversible error and, accordingly, recommend that the court 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 met the insured status requirements of the Social Security Act through December 31, 2014, Finding 1, Record at 15; that she had severe impairments of fibromyalgia, arthritis, and chronic pain, Finding 3, id.; that she had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), could lift/carry 10 pounds frequently and 20 pounds occasionally, sit for four hours and stand/walk for four hours out of an eight-hour workday, would require a sit/stand option every hour for a few minutes at a time, could occasionally kneel, crawl, crouch, and stoop, could not balance, was restricted from vibrations and hazards such as machinery and heights, and was limited to simple jobs with simple instructions and limited changes, Finding 5, id. at 16; that, considering her age (43 years old, defined as a younger individual, on her alleged disability onset date, September 29, 2012), education (high school), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that she could perform, Findings 7-10, id. at 20; and that she, therefore, had not been disabled from September 29, 2012, through the date of the decision, December 12, 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 her 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. Failure To Address DHHS Finding

         The plaintiff first seeks remand on the basis that the administrative law judge ignored a DHHS disability determination that she contends was particularly probative because DHHS used the same five-step sequential evaluation process employed by the commissioner. See Statement of Errors at 4-6. In that determination, dated July 20, 2011, DHHS reversed a March 25, 2011, denial of the Plaintiff's application for SSI-related MaineCare benefits premised on the fact that she had been determined to be capable of at least light work. See Record at 399. The plaintiff had submitted new evidence to DHHS in the form of an April 6, 2011, statement of Dr. Kriegel. See id. at 400. The statement does not appear of record; however, DHHS summarized it as stating:

I have been this patient's physician for 25 years. This patient is under my care for Cardiac arrhythmia, Fibromyalgia, Osteoarthritis and Degenerative disc disease. She cannot work. She is disabled.

Id. at 401 (internal quotation marks and italics omitted). At Step 4, after noting that the plaintiff had argued that she lacked the RFC to do any work and that Dr. Kriegel had indicated she was unable to work, DHHS stated that it had concluded “that she lacks the capacity to even perform sedentary work on a sustained basis.” Id. at 404. At Step 5, it stated that, given that conclusion, it determined that the plaintiff “cannot work, and therefore meets the disability criteria for SSI-related MaineCare benefits.” Id.

         The administrative law judge made no mention of the DHHS determination, see id. at 15-21, an omission that the plaintiff contends transgressed Social Security Ruling 06-03p (“SSR 06-03p”), see Statement of Errors at 4-6.

         SSR 06-03p provides, in relevant part, that, although “the final responsibility for deciding certain issues, such as whether [a claimant is] blind disabled, is reserved to the Commissioner[, ]” adjudicators “are required to evaluate all the evidence in the case record that may have a bearing on our determination or decision of disability, including decisions by other governmental and nongovernmental agencies.” SSR 06-03p, reprinted in West's Social Security Reporting Service Rulings 1983-1991 (Supp. 2016), at 334. “Therefore, evidence of a disability decision by another governmental or nongovernmental agency cannot be ignored and must be considered.” Id. The ruling adds, in relevant part:

Because the ultimate responsibility for determining whether an individual is disabled under Social Security law rests with the Commissioner, we are not bound by disability decisions by other governmental and nongovernmental agencies. In addition, because other agencies may apply different rules and standards than we do for determining whether an individual is disabled, this may limit the relevance of a determination of disability made by another agency. However, the adjudicator should explain the consideration given to these decisions in the notice of decision for hearing cases . . . .

Id.

         The commissioner argues that the administrative law judge complied with SSR 06-03p in that, while she did not discuss the DHHS determination, she referred to it in the List of Exhibits appended to her decision, indicating that she had at least “considered” it, and that she was not required to discuss it. See Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 15) at 3-4. She argues, in the alternative, that even if the administrative law judge did err in failing to consider and/or discuss the determination, the error is harmless in that, (i) despite the superficial similarity of the five-step evaluation process used by DHHS to that of the commissioner, the analysis differed, and (ii) the DHHS determination was issued more than a year prior to the Plaintiff's alleged onset date of disability, rendering it irrelevant to the instant claim. See id. at 4-6.

         At oral argument, the Plaintiff's counsel acknowledged that the presence of the DHHS determination on the List of Exhibits might evidence its consideration. However, he underscored that this did not fulfill SSR 06-03p's further requirement that the administrative law judge explain that consideration.

         The commissioner's counsel countered that, while the mere presence of the DHHS determination on the List of Exhibits was not the most compelling evidence of its consideration, it was adequate evidence. He noted that the commissioner directs that such exhibit lists be prepared in final form in cases involving partially or wholly adverse decisions to comply with “the constitutional due process requirement that a claimant has the right to know upon what basis the ALJ [administrative law judge] is making the decision in his/her case[.]” Social Security Administration, Hearings, Appeals, and Litigation Law Manual (HALLEX) § I-2-1-20. Thus, he reasoned, one can presume that the DHHS determination was considered. He disputed that SSR 06-03p ...


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