Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Davenport v. Berryhill

United States District Court, D. Maine

June 25, 2017

SHANNON DAVENPORT, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant

          REPORT AND RECOMMENDED DECISION [2]

          John H. Rich III United States Magistrate Judge

         This Child's Disability Benefits ("CDB"), 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 basis that the administrative law judge ("ALJ") erred in relying on the Medical-Vocational Guidelines at 20 C.F.R. Part 404, Subpart P, Appendix 2 ("the Grid") in finding her not disabled at Step 5. See Plaintiffs Itemized Statement of Errors ("Statement of Errors") (ECF No. 13) at 4.[3] I conclude that the ALJ correctly relied on the Grid in reaching her Step 5 determination. Accordingly, I 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 June 30, 2012, Finding 1, Record at 14; that she had severe impairments of mild grade II L5-S1 spondylolisthesis with foraminal stenosis and bilateral L5 spondylosis, chronic pain, depression not otherwise specified (“NOS”), borderline intellectual functioning, rule-out cognitive disorder, and morbid obesity, 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), except that she could lift and carry 10 pounds frequently and 20 pounds occasionally, sit for six hours in an eight-hour workday, stand or walk for two hours in an eight-hour workday, kneel, crouch, and climb stairs occasionally, was unable to climb ladders, ropes, or scaffolds and needed to avoid vibration, and was limited to simple jobs with simple instructions, limited changes, and rare public interaction, Finding 5, id. at 17; that, considering her age (20 years old, defined as a younger individual, on her alleged disability onset date, October 31, 2010), education (at least 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 24; and that she, therefore, had not been disabled from October 31, 2010, through the date of the decision, May 15, 2015, Finding 11, id. at 25. 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

         The plaintiff challenges the ALJ's reliance on the Grid on three alternative bases: that she (i) failed to demonstrate that its use was appropriate with respect to the RFC found, (ii) its application was inappropriate as a matter of law given the plaintiff's IQ scores, and (iii) her RFC determination failed to capture the magnitude of the plaintiff's mental impairments. See Statement of Errors at 4-11. For the reasons that follow, I find no reversible error.

         A. Application of Grid to RFC Found by ALJ

         In Ortiz v. Secretary of Health & Human Servs., 890 F.2d 520 (1st Cir. 1989), the First Circuit stated:

In cases where a nonexertional impairment significantly affects claimant's ability to perform the full range of jobs he is otherwise exertionally capable of performing, the Secretary must carry his burden of proving the availability of jobs in the national economy by other means, typically through the use of a vocational expert. On the other hand, should a nonexertional limitation be found to impose no significant restriction on the range of work a claimant is exertionally able to perform, reliance on the Grid remains appropriate.

Id. at 524 (citations and internal quotation marks omitted). This quote appropriately frames the first issue before the court.

         Pursuant to Social Security Ruling 83-10 (“SSR 83-10”), a nonexertional impairment is any impairment that “does not directly affect the ability to sit, stand, walk, lift, carry, push or pull.” SSR 83-10, reprinted in West's Social Security Reporting Service Rulings 1983-1991, at 30. “This includes impairments that “affect the mind, ” id., such as the plaintiff's cognitive impairment.

         “[A]though a nonexertional impairment can have a negligible effect, ordinarily the ALJ must back such a finding of negligible effect with the evidence to substantiate it, unless the matter is self-evident.” Seavey v. Barnhart, 276 F.3d 1, 7 (1st Cir. 2001) (citation and internal quotation marks omitted).

         The administrative law judge stated, “If the claimant has solely non-exertional limitations, Section 204.00 in the [Grid] provides a framework for decision-making (SSR 85-15).” Record at 24, 48. She found that the plaintiff's “additional limitations have little or no effect on the occupational base of unskilled light work.” Id. at 48.

         The plaintiff argues that the administrative law judge failed to meet the commissioner's burden of proof at Step 5 by either providing examples of specific jobs existing in significant numbers that she could perform or substantiating her conclusion, through citation to vocational expert testimony and/or legal authority, that the plaintiff's nonexertional impairments had only a negligible effect on the full range of light work. See Statement of Errors at 5.

         Nonetheless, as the commissioner notes, see Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 17) at 4, the administrative law judge did cite Social Security Ruling 85-15 (“SSR 85-15”), see Record at 24, 48. As the commissioner points out, see Opposition at 4, SSR 85-15 provides that the ability to perform unskilled work includes the abilities to understand, carry out, and remember simple instructions; respond appropriately to supervision, coworkers, and usual work situations; and deal with changes in a routine work setting. See SSR 85-15, reprinted in West's Social Security Reporting Service Rulings 1983-1991, at 347. That, in turn, supports the conclusion that a limitation to a job with simple instructions and rare public interaction does not significantly impair a claimant's ability to perform unskilled work.

         Moreover, as the commissioner points out, see Opposition at 4, in Garcia-Martinez v. Barnhart, 111 Fed.Appx. 22 (1st Cir. 2004), the First Circuit rejected a challenge to reliance on the Grid in circumstances in which a claimant had been found limited to work of a routine, repetitive nature that did not involve undue pressure or interactions with the public, see Garcia-Martinez, 111 Fed.Appx. at 23. The First Circuit cited SSR 85-15 and Ortiz v. Secretary of Health & Human Servs., 890 F.2d 520 (1st Cir. 1989), for the proposition that the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.