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Rackliff v. Berryhill

United States District Court, D. Maine

May 22, 2017

LAURIE ANN RACKLIFF, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant

          MEMORANDUM DECISION [2]

          John H. Rich III United States Magistrate Judge

         This Supplemental Security Income (“SSI”) appeal raises the question of whether the administrative law judge supportably found that the plaintiff had no severe physical impairment. The plaintiff seeks remand on the bases that the administrative law judge erred in failing to find her migraines/headaches and occipital neuralgia severe and in failing to fully and fairly develop the record. See Plaintiff's Statement of Errors in Support of a Social Security Appeal (“Statement of Errors”) (ECF No. 18) at 1, 9-13.[3] I conclude that, in the circumstances presented, the administrative law judge had no duty to develop the record further and that, even assuming arguendo that she erred in finding no severe migraine/neuralgia impairment, remand would amount to an empty exercise. Hence, I affirm the commissioner's decision.

         Pursuant to 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 had a medically determinable impairment of headaches, Finding 2, Record at 14; that she did not have an impairment or combination of impairments that significantly limited, or was expected to significantly limit, her ability to perform basic work-related activities for 12 consecutive months and, therefore, did not have a severe impairment or combination of impairments, Finding 3, id.; and that she, therefore, had not been disabled from May 23, 2012, her amended alleged onset date of disability, through the date of the decision, November 18, 2014, Finding 4, id. at 28-29. The Appeals Council declined to review the decision, id. at 1-4, 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).

         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 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 Error

         The plaintiff first argues that the administrative law judge erred in failing to find any severe physical impairment, complaining that she misconstrued the raw medical evidence and erroneously rejected the opinions of two agency nonexamining physicians, Benjamin Weinberg, M.D., and Donald Trumbull, M.D., that she had severe headaches and degenerative disc disease. See Statement of Errors at 9-12; Record at 87-91, 105-08.

         The commissioner rejoins that the administrative law judge made a permissible, commonsense judgment that the plaintiff had no severe impairment and, even if she did not, remand would amount to an empty exercise because adoption of the opinion of either Dr. Weinberg or Dr. Trumbull would dictate a conclusion that the plaintiff was not disabled. See Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 23) at 2-13 (citing, inter alia, Ward v. Commissioner of Soc. Sec., 211 F.3d 652, 656 (1st Cir. 2000)).

         In Ward, the First Circuit held that remand is not necessary if correction of the error at issue will amount to no more than an empty exercise because there is an independent ground, based on a fully developed record, on which affirmance “must be entered as a matter of law.” Ward, 211 F.3d at 656. See also, e.g., Day v. Astrue, No. 1:12-cv-141-DBH, 2012 WL 6913439, at *10 (D. Me. Dec. 30, 2012) (rec. dec., aff'd Jan. 18, 2013) (“Pursuant to the rule of SEC v. Chenery Corp., 332 U.S. 194 (1947), a reviewing court cannot affirm an agency's decision on the basis of a post hoc rationalization but must affirm, if at all, on the basis of a rationale actually articulated by the agency decision-maker. An exception to the Chenery rule exists when a remand will amount to no more than an empty exercise because, for example, application of the correct legal standard could lead to only one conclusion.”) (citations and internal punctuation omitted).

         For the reasons discussed below, I am unpersuaded that further development of the record is necessary. On this fully developed record, the adoption of even the more restrictive (that is, the more plaintiff-friendly) opinion of Dr. Weinberg would direct a conclusion of non-disability in this case, rendering remand an empty exercise.

         In an opinion dated September 14, 2012, Dr. Weinberg determined that, for the period from October 30, 2000, through September 10, 2008, there was insufficient medical evidence to evaluate the plaintiff for a medically determinable impairment, and, for the period from September 11, 2008, through September 14, 2012, the plaintiff was limited by severe migraine headaches and degenerative disc disease to the performance of light work with the following additional postural limitations: she could climb ramps/stairs occasionally, never climb ladders/ropes/scaffolds, and could balance, stoop, kneel, crouch, and crawl occasionally. See Record at 87-91.[4]

         Moreover, in an opinion dated April 8, 2013, Dr. Trumbull determined that, as of that time, the plaintiff was limited by severe migraine headaches and degenerative disc disease to the performance of light work with the following additional postural limitations: she could frequently climb ramps, stairs, ladders, ropes, and scaffolds and could frequently stoop, kneel, crouch, and crawl. See id. at 105-08. He determined that she had no limitations in her ability to balance. See id. at 108. He explained that, at that time, the plaintiff's migraines were controlled, and she had only minimal to mild degenerative disc disease of the cervical spine and focal/stable/non-acute degenerative joint disease of the lumbar spine without established neural impingement. See id.

         As the commissioner points out, see Opposition at 11-13, in some circumstances an administrative law judge permissibly may rely on the so-called “Grid, ” Appendix 2 to Subpart P, 20 C.F.R. § 404, to determine that a claimant is not disabled.

         Use of the Grid is appropriate when a rule accurately describes an individual's capabilities and vocational profile. See, e.g., Heckler v. Campbell, 461 U.S. 458, 462 & n.5 (1983). When a claimant's impairments involve only limitations related to the exertional requirements of work, the Grid provides a “streamlined” method by which the commissioner can meet her burden of showing that there is other work a claimant can perform. See, e.g., Heggarty v. Sullivan, 947 F.2d 990, 995 (1st Cir. 1991). However, in cases in which a claimant suffers from nonexertional as well as exertional impairments, the Grid may not accurately reflect the availability of other work he or she can do. See, e.g., Id. at 996; Ortiz v. Secretary of Health & Human Servs., 890 F.2d 520, 524 (1st Cir. 1989).

         Whether the commissioner may rely on the Grid in these circumstances depends on whether a nonexertional impairment “significantly affects [a] claimant's ability to perform the full range of jobs” at the appropriate exertional level. Id. (citation and internal quotation marks omitted). If a nonexertional impairment is significant, the commissioner generally may not rely on the Grid to meet her Step 5 burden but must employ other means, typically use of a vocational expert. See, e.g., id.

         Even in cases in which a nonexertional impairment is determined to be significant, however, the commissioner may yet rely exclusively upon the Grid if “a non-strength impairment . . . has the effect only of reducing that occupational base marginally[.]” Id. “[A]though a nonexertional impairment can have a negligible effect, ordinarily the ALJ [administrative law judge] must back such a finding of negligible effect with the evidence to substantiate it, unless ...


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