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Gerry v. Berryhill

United States District Court, D. Maine

July 7, 2017

SUSAN E. GERRY, 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”) and Supplemental Security Income (“SSI”) appeal raises the question of whether the administrative law judge (“ALJ”) supportably found the plaintiff capable of performing work existing in significant numbers in the national economy during an alleged closed period of disability beginning on September 6, 2012, and ending on May 1, 2014. The plaintiff seeks remand on the bases that the ALJ erred in failing to find her carpal tunnel syndrome (“CTS”) severe and in determining her residual functional capacity (“RFC”) based on an impermissible layperson's analysis of the raw medical evidence. See Statement of Specific Errors (“Statement of Errors”) (ECF No. 15) at 1-9. I agree and, accordingly, recommend that the court vacate the commissioner's decision and remand this case for further proceedings consistent herewith.

         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 ALJ found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act through December 31, 2013, Finding 1, Record at 14; that, during her alleged closed period of disability, she had the severe impairments of obesity, diabetes mellitus, and chronic obstructive pulmonary disease (“COPD”), Finding 3, id. at 15; that, during that period, she had the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that she could stand and walk for about four hours in a normal eight-hour day and, due to bilateral peripheral neuropathy in the feet, obesity, and pain in the feet, could sit for about six hours in an eight-hour day, that she had an unlimited ability to push and pull, other than as shown for lifting and carrying at the light exertional level, that she had to avoid climbing ropes, ladders, and scaffolding due to neuropathy, COPD, side effects of medications, obesity, and complaints of pain in the bilateral upper extremities, and that she had to avoid concentrated exposure to extreme cold and extreme heat and avoid fumes, dust, odors, gases, poor ventilation, and even moderate exposure to cigarette smoke, Finding 5, id. at 17; that, during that period, considering her age (48 years old, defined as a younger individual, on her alleged disability onset date, September 6, 2012), 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 21; and that she, therefore, had not been disabled during her alleged closed period of disability from September 6, 2012, through May 1, 2014, Finding 11, id. at 22.[3] 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 ALJ 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).

         The statement of errors also implicates Steps 2 and 4 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).

         At Step 4, the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f); Bowen, 482 U.S. at 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), 416.920(f); Social Security Ruling 82-62 (“SSR 82-62”), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.

         I. Discussion

         A. Failure To Find a Severe Impairment of CTS

         The plaintiff first argues that the ALJ erred in failing to find her CTS a severe impairment at Step 2. See Statement of Errors at 1-5. In the circumstances of this case, I agree.

         As the plaintiff notes, see Id. at 4, the ALJ did not even discuss her CTS at Step 2, see Record at 15-17. He addressed it at Step 4, see id. at 18-21, but, for the reasons that follow, that discussion fails to supply substantial evidence in support of his implicit Step 2 finding of nonseverity.

         At Step 4, the ALJ noted that the plaintiff had testified that she had amended her alleged onset date of disability to September 6, 2012, because that was the date on which she first reported to her doctor that she had hand pain and that her hands “felt like lead[.]” Id. at 18 (quoting Record at 35). The ALJ noted that the plaintiff's doctor ordered testing revealing that the plaintiff had CTS in both hands, worse on the right side, and that she underwent CTS release surgery on her right hand in September 2013. See id. at 18. He noted that, (i) following surgery, her hand initially felt better but began to hurt again, (ii) she took Vicodin for pain and several other medications for her other conditions with no side effects, and (iii) she testified that her hands were her biggest physical problem during the closed period, her right hand felt “fine” after the surgery and with medication, but the medication was no longer helping as much and she was developing more pain and numbness in that hand. See id. at 18-19 (quoting Record at 38).

         He recounted her additional allegations regarding the severity of her hand pain and its functional effects as follows:

When asked about her pain levels during the alleged closed period of disability, the [plaintiff] stated that she felt stabbing pain in her fingers “like lightning strikes” and she had tingling in her right hand. She rated her right hand pain as a “7” on a scale from “0” to “10, ” but it was “off and on . . . not long, maybe two minutes.” Her doctor prescribed Hydrocodone for both her back and hand pain. She also used cold packs for her hand, which helped, and did gentle exercises for her hand and wrist. . . . She never underwent left carpal tunnel release, because she did not feel the surgery on her right hand was as helpful as she expected; and now she just “suffers with the pain.” She has difficulty with zippers and can button a shirt, but it takes “a few minutes.” She can tie her own shoes and work snaps with both hands.
[The plaintiff] went to work in the summer of 2012 assembling smoke detectors, but the job only lasted about three weeks. It was a temporary position and they told her that her “name was on the list” and they let her go. A couple of months later, she began having the pain in her hands and w[ent] to her doctor, as she previously testified. She struggled washing dishes, sweeping floors and vacuuming was impossible. After her surgery a year later, she felt much better, but as she stated previously, the pain returned; and she does not feel she could do her current work ...

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