United States District Court, D. Maine
TAMMY L. SALISBURY, Plaintiff
NANCY A. BERRYHILL, ACTING COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant
REPORT AND RECOMMENDED DECISION
C. Nivison U.S. Magistrate Judge
action, Plaintiff Tammy L. Salisbury seeks disability
insurance benefits under Title II of the Social Security Act.
Defendant, the Social Security Administration Acting
Commissioner, found that Plaintiff has a severe impairment,
but retains the functional capacity to perform substantial
gainful activity, including her past relevant work.
Defendant, therefore, denied Plaintiff's request for
disability benefits. Plaintiff filed this action for judicial
review of Defendant's final administrative decision
pursuant to 42 U.S.C. § 405(g).
a review of the record, and after consideration of the
parties' arguments, I recommend the Court affirm the
Commissioner's final decision is the September 17, 2015,
decision of the Administrative Law Judge (ALJ) (ECF No.
9-2). The ALJ's decision tracks the familiar
five-step sequential evaluation process for analyzing social
security disability claims, 20 C.F.R. § 404.1520.
found that Plaintiff has a severe, but non-listing-level
impairment: sleep disorder. (Decision ¶¶ 3 - 4.)
The ALJ determined that Plaintiff has the residual functional
capacity (RFC) for the full-range of exertional activity, but
must avoid heights, hazardous machinery, motor vehicle
operation, and sharp instruments. (Id. ¶ 5.)
The ALJ further found that with her RFC, Plaintiff has the
capacity to perform past relevant work and other substantial
gainful activity. (Id. ¶ 6.) The ALJ,
therefore, concluded that Plaintiff was not disabled from
January 12, 2012, through the date of decision, September 17,
2015. (Id. ¶ 7.)
Statement of Errors
asserts that the ALJ's step 2 characterization of
Plaintiff's condition as a sleep disorder is erroneous.
Citing the findings of several treating neurologists,
Plaintiff contends the proper diagnosis is narcolepsy.
(Statement of Errors at 1 - 4.) Plaintiff argues the step 2
error led to error at step 3 because the proper listing for
evaluation of narcolepsy is Listing 11.02 (epilepsy), not
Listing 3.10 (sleep related breathing disorders).
(Id. at 3.) Plaintiff maintains her condition is
equivalent to a condition that would meet Listing 11.02.
(Id. at 4 - 6.)
also challenges the ALJ's RFC finding, and argues the ALJ
improperly relied on the state agency non-examining expert
who diagnosed sleep disorder (Susan Moner, M.D.), improperly
weighed the findings of a treating source (James Stevenson,
M.D.), and improperly assessed Plaintiff's credibility
regarding her report of her subjective symptoms.
(Id. at 8 - 18.)
Standard of Review
must affirm the administrative decision provided that the ALJ
applied the correct legal standards and provided that the
decision is supported by substantial evidence, even if the
record contains evidence capable of supporting an alternative
outcome. Manso-Pizarro v. Sec'y of HHS, 76 F.3d
15, 16 (1st Cir. 1996) (per curiam); Rodriguez Pagan v.
Sec'y of HHS, 819 F.2d 1, 3 (1st Cir. 1987).
Substantial evidence is evidence that a reasonable mind might
accept as adequate to support a finding. Richardson v.
Perales, 402 U.S. 389, 401 (1971); Rodriguez v.
Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981).
“The ALJ's findings of fact are conclusive when
supported by substantial evidence, but they are not
conclusive when derived by ignoring evidence, misapplying the
law, or judging matters entrusted to experts.”
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).
Narcolepsy at step 2
2, the ALJ found that Plaintiff has a sleep disorder that
causes more than a slight restriction in her ability to
perform basic work-related activities. (Decision ¶ 3.)
In his discussion of Plaintiff's RFC, the ALJ noted
“a history of narcolepsy dating back to age 13, ”
but also observed that “the record fails to show that
her condition worsened on her alleged onset date.” (R.
17.) According to Plaintiff, although she managed her
condition with medication for years, the medication became
ineffective and her symptoms became unmanageable for
employment purposes because she “came down with
insomnia.” (R. 45 - 46.) “The medication that
worked before … was no longer working because [she]
was falling asleep without knowing it on the
medication.” (R. 47.) Plaintiff received a series of
neurological evaluations in 2010 and 2011, following her
report of symptoms such as blackout episodes, loss of time,
and resulting loss of employment. (Ex. 3F, R. 268.)
September 8, 2011, Maine Disability Determination Services
consulting physician Robert Hayes, D.O., reported:
“Although the claimant reports long history of
narcolepsy, this diagnosis is not confirmed by consulting
neurologists' records.” (Ex. 1A, R. 61.) He then
provided an RFC assessment for sleep disorder, which
assessment was somewhat more restrictive than the RFC
assessed by the ALJ. On November 25, 2013, Maine Disability
Determination Services consulting physician Susan Moner,
M.D., found ...