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Leech v. Berryhill

United States District Court, D. Maine

June 28, 2017

EVEDENE E. LEECH, 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 Social Security Disability (“SSD”) appeal raises the question of whether the administrative law judge (“ALJ”) supportably found the plaintiff capable of returning to her past relevant work. The plaintiff seeks remand on the bases that the ALJ erred in (i) failing to find severe impairments of depression and post-traumatic stress disorder (“PTSD”)/anxiety, (ii) relying on vocational expert (“VE”) testimony that mischaracterized the nature of her past relevant work, and (iii) ignoring or improperly assessing the opinions of treating sources Kendra Cornwall, D.O., Barbara Johnson, L.C.S.W., and Jessica Bell, D.O. See Plaintiff's Statement of Errors (“Statement of Errors”) (ECF No. 13) at 3-18. 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; Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the ALJ found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act through June 30, 2014, Finding 1, Record at 19; that, through her date last insured, she had a severe impairment of degenerative disc disease, Finding 3, id.; that, through her date last insured, she had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b), except that she could stand/walk for four out of eight hours in a normal workday, sit for six out of eight hours in a normal workday, occasionally climb ramps, ladders, ropes, scaffolds, and stairs, and occasionally balance, crouch, stoop, kneel, and crawl, Finding 5, id. at 22; that, through her date last insured, she was capable of performing past relevant work as an office worker, which did not require the performance of work-related activities precluded by her RFC, Finding 6, id. at 26; and that she, therefore, had not been disabled from July 23, 2011, her alleged onset date of disability, through June 30, 2014, her date last insured, 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; 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); 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 ALJ 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); 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); Social Security Ruling 82-62 (“SSR 82-62”), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.

         The 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. Failure To Find Severe Mental Impairment

         The ALJ found that the Plaintiff's medically determinable affective and anxiety disorders did not cause more than minimal limitation in her ability to perform basic mental work activities for a consecutive 12-month period and, hence, were nonsevere. See Record at 20.

         He acknowledged that she had an episode of depression and suicidal ideation commencing in December 2013 that led to a four-week partial mental hospitalization, following which she received medication management and counseling treatment through June 2015 from Community Counseling Services, except for a two-month period when she was on a trip. See id. However, he noted that, by February 2014, the Plaintiff's mood had stabilized sufficiently that she no longer was suicidal; by April 2014, she reported an improvement in her depression with the use of Risperdal and Effexor; by July 2014 she was noted to have a normal mood; on August 26, 2014, she was noted to be over her major depressive episode with the assistance of counseling and medication; in September 2014, she continued to deny depression; and, although she had a slight worsening of depression following a physical injury in November 2014, her mental condition overall had improved. See id. He, therefore, concluded that her acute episode of depression and anxiety had not lasted the requisite 12 consecutive months to be considered severe, imposing only mild limitations in activities of daily living, social functioning, and concentration, persistence, or pace, with no episodes of decompensation. See id. at 20-21.

         With respect to opinion evidence, the ALJ gave some weight to an August 30, 2013, opinion of Dr. Bell, who noted, in relevant part, that the plaintiff could perform mental activities such as understanding and memory, sustained concentration, social interaction, and adaptation, and little weight to a February 28, 2014, opinion of agency nonexamining consultant John J. Warren, Ed.D., that there was insufficient evidence to assess mental severity and prospective duration. See id. at 25, 95, 513. The ALJ explained that, while Dr. Warren's opinion was “consistent with the paucity of medical evidence prior to February 2014[, ] additional evidence was submitted after the reconsideration review that allows a determination on [the Plaintiff's] mental health issues.” Id. at 25.

         The plaintiff contends that the ALJ, as a layperson, was unqualified to interpret the raw medical evidence submitted after Dr. Warren's review to arrive at the conclusion that her diagnosed mental impairments were nonsevere - that is, imposed no more than a minimal limitation on her ability to perform basic work activities. See Statement of Errors at 3-4 (citing Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)). She further notes that, in Greene v. Barnhart, No. 03-36-B-W, 2003 WL 22961199 (D. Me. Dec. 15, 2003) (rec. dec., aff'd Jan. 9, 2004), this court held that at an impairment need not remain at a particular level of severity for 12 months to meet the durational requirement. See id. at 4; see also Greene, 2003 WL 22961199, at *4 (“A condition need not be severe or symptomatic day in and day out for twelve straight months to meet the durational requirement.”).

         She contends that the Step 2 error is not harmless because, had the ALJ obtained the assistance of a medical expert, he would have been required to account for the impact of her mental impairments in his RFC assessment, and “[t]he most commonly found limitations resulting from these severe impairments are a restriction to unskilled work and at least moderate limitations in concentration, persistence, and pace.” Statement of Errors at 6-7. She asserts that, had she been deemed limited to unskilled work, and had the ALJ correctly classified her past relevant work as skilled (the subject of a separate point of error addressed below), she would have been found unable to perform her past relevant work. See id. at 7. She adds that, even had the ALJ properly found her mental impairments nonsevere, he should have factored resulting limitations into her RFC. See id. at 7-8 (citing McDonald, 795 F.2d at 1126).

         As the commissioner points out, see Defendant's Opposition to Plaintiff's Itemized Statement of Specific Errors (“Opposition”) (ECF No. 15) at 5-6, this court has rejected the notion that it is per se error for an ALJ to determine that an impairment is nonsevere in the absence of expert medical assistance, see Small v. Colvin, No. 2:14-cv-042-NT, 2015 WL 860856, at *7-*8 (D. Me. Feb. 27, 2015) (ALJ did not err in determining, without benefit of expert assistance, that claimant's arm/hand impairment was nonsevere when caselaw relied on by claimant, including Nguyen, pertained to RFC assessments at Step 4 and ALJ identified substantial evidence in support of his determination that the arm/hand impairment was nonsevere).

         Here, as in Small, the ALJ identified substantial evidence supporting his conclusion, including:

         1. The opinion of the Plaintiff's treating physician, Dr. Bell, that as of August 30, 2013, the plaintiff was “able to perform mental activities, such as understanding and memory, sustained concentration, social interaction and adaptation[, ]” id. at 25, 513;

         2. Progress notes indicating that, while the plaintiff suffered acute symptoms in December 2013 and January 2014 leading to her partial hospitalization, her mental condition improved with medication and counseling as of her date last insured, June 30, 2014, and continued to improve thereafter, see id. at 20; and

          3. Activities of daily living and findings on mental status examinations consistent with a mild level of mental impairment; for example, that the plaintiff could cook, swim for exercise, read, watch television, do puzzles, attend movies, travel, play games on her phone or computer, was noted to be well-groomed or neatly dressed on multiple occasions, had lunch monthly and/or weekly with friends, attended church regularly, had developed a system for managing her ...


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