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Dishman v. Colvin

United States District Court, D. Maine

December 29, 2016

NANCY DISHMAN, 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 Supplemental Security Income (“SSI”) appeal raises the questions of whether the administrative law judge properly evaluated the opinion of a treating physician and whether the Appeals Council properly decided not to consider evidence submitted by the plaintiff after her hearing before the administrative law judge. I recommend that the court vacate the commissioner's decision and remand this case for further proceedings consistent herewith.

         In 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 anxiety and affective disorders, fibromyalgia, obesity, right shoulder degenerative joint disease, and personality 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 2-3, Record at 16; that she had the residual functional capacity (“RFC”) to perform light work, except that she would require a sit/stand-at-will option, could frequently climb ramps and stairs, balance and kneel, but only occasionally climb ladders, ropes, and scaffolds, or stoop, crouch or crawl, was limited to occasional overhead reaching with her right upper extremity, could understand, remember and carry out simple instructions, could make simple work-related decisions, could response appropriately to co-workers and supervisors but only occasionally to situations involving the public, and could adapt to changes in an ordinary work setting, Finding 4, id. at 18; that she had no past relevant work, Finding 5, id. at 22; that, considering her age (44 years old on the date her application was filed, January 19, 2012), education (at least high school), and RFC, there were jobs existing in significant numbers in the national economy that she could perform, Findings 6-9, id. at 22-23; and that she, therefore, had not been disabled from January 19, 2012, through the date of the decision, May 29, 2014, Finding 10, id. at 24. The Appeals Council reviewed the decision, id. at 1-3, revised the plaintiff's RFC to the sedentary level, and otherwise upheld the administrative law judge's decision, id. at 4-6, making its 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).

         The 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).

         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. § 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

         The plaintiff's “itemized statement” is presented as a continuous narrative, with no itemized specification of the issues that she wishes to present to the court. Plaintiff's Itemized Statement of Errors (“Itemized Statement”) (ECF No. 13) at 5-9. Accordingly, and without objection from plaintiff's counsel at oral argument, I address the issues as identified by the defendant in her response. Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 17).

         A. Dr. Kahl's Opinion

         The plaintiff contends that the administrative law judge “fail[ed] to evaluate the opinion of the psychologist, Dr. Kahl.” Itemized Statement at 5. She asserts that the limitation stated by Dr. Kahl, a consulting examiner, “in addition to the reasons given in the Meuse affidavit, ” which was submitted after the hearing, would preclude the document preparer job, id., one of two jobs that the administrative law judge found to be available to the plaintiff, given his RFC. Record at 23.

         The fact that the plaintiff does not challenge the administrative law judge's finding that the job of table worker would be available to her, id., means that the court need go no further with this argument. This court has previously held that the existence of a single suitable job in sufficient numbers in the national economy that fits the plaintiff's RFC is sufficient to withstand appeal. See, e.g., Robinson v. Astrue, Civil No. 09-629-B-W, 2010 WL 4365755, at *4 (D. Me. Oct. 27, 2010).

         In addition, the administrative law judge did not fail to evaluate Dr. Kahl's opinion. He recited Dr. Kahl's findings. Record at 21. He reports the mention of Dr. Kahl's report by Dr. Hymoff, the medical expert who testified at the hearing, including his testimony that “no records gave him any idea of the level of functioning.” Id. at 22. When the administrative law judge expressly “adopt[ed] the testimony of Dr. Hymoff, ” id., he necessarily also adopted Dr. Hymoff's statement that Dr. Kahl's report did not give the reader “any idea of the level of functioning.” Id. The administrative law judge did not “ignore” Dr. Kahl's report. Itemized Statement at 5.

         The plaintiff makes much, id., of Dr. Kahl's statement that her “ability to understand, remember, and carry out one or two-step job instructions should be inspected [sic] to be reasonably satisfactory from a psychological and cognitive perspective[, ]” Record at 699, and the fact that the administrative law judge does not mention it specifically. However, in this district, an administrative law judge is not required to discuss every item of evidence in the record. Peak v. Colvin, No. 2:15-cv-67-JHR, 2015 WL 7681256, at *4 (D. Me. Nov. 24, 2015). That rule should be particularly apt where, as here, the omitted statement would not affect the outcome of the claim.

         The plaintiff is not entitled to remand on the basis of this issue.

         B. ...


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