United States District Court, D. Maine
REPORT AND RECOMMENDED
H. Rich III United States Magistrate Judge.
Social Security Disability (“SSD”) appeal raises
the question of whether the administrative law judge
(“ALJ”) supportably found that the plaintiff had
no severe impairment from August 1, 1983, his alleged onset
date of disability, through December 31, 1990, his date last
insured for SSD benefits. The plaintiff seeks remand on the
basis that the ALJ gave undue weight to the opinions of three
non-treating, nonexamining medical experts and wrongly
rejected the opinion of his treating physician. See
Plaintiff's Itemized Statement of Errors
(“Statement of Errors”) (ECF No. 15) at 3-12. I
find no reversible error and, accordingly, recommend that the
court affirm the commissioner's decision.
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 December 31, 1990, Finding 1, Record at 14; that,
through his date last insured, he had a medically
determinable impairment of postpolio syndrome/poliomyelitis
affecting his left lower extremity, Finding 3, id.;
that, through his date last insured, he did not have an
impairment or combination of impairments that significantly
limited his ability to perform basic work-related activities
for 12 consecutive months and, therefore, did not have a
severe medically determinable impairment or combination of
impairments, Finding 4, id.; and that he, therefore,
had not been disabled at any time from August 1, 1983, his
alleged onset date of disability, through December 31, 1990,
his date last insured, Finding 5, id. at 21. 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).
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).
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).
plaintiff challenges the ALJ's finding that he had no
severe postpolio impairment as of his date last insured,
1. The ALJ erroneously gave great weight to the opinions of
three agency nonexamining consultants, Richard T. Chamberlin,
M.D., Leslie Abramson, M.D., and Peter B. Webber, M.D., that
there was insufficient evidence to establish
disability during the period from August 1, 1983, to
December 31, 1990, when the burden of establishing the
severity of an impairment is de minimis.
See Statement of Errors at 3-5.
2. Dr. Webber's written answers to interrogatories dated
September 29, 2014, and testimony at the plaintiff's
February 24, 2015, hearing were rendered invalid by his
reliance on the false premise that the plaintiff had a
congenital leg deformity rather than polio/postpolio
syndrome. See id. at 5-6; Record at 65-66, 585-90.
Dr. Webber did not see photographic evidence that the ALJ
wrongly refused to admit and was not informed that the
plaintiff's treating physician, Nathan Raby, D.O., later
clarified that his characterization of the plaintiff's
leg condition as “congenital” was incorrect.
See Statement of Errors at 6-7. Compounding these
errors, the ALJ failed to call Dr. Webber to testify at a
supplemental hearing held on June 24, 2015. See id.
3. Drs. Chamberlin and Abramson also were unaware that Dr.
Raby had clarified the origin of the plaintiff's left
leg-length discrepancy as polio, rather than a congenital
condition, that Dr. Raby had assessed significant functional
limitations resulting from the plaintiff's
polio/postpolio syndrome prior to his date last insured, and
that there was photographic proof that the deformity was not
congenital and existed prior to the plaintiff's date last
insured. See id. at 10-11.
4. The ALJ wrongly gave little weight to Dr. Raby's
retrospective opinion that the plaintiff had serious
functional limitations prior to his date last insured,
several of which Dr. Raby attributed in whole or part to the
plaintiff's postpolio syndrome impairment. See
id. at 4, 8-10, 12.
points of error, as well as others raised by the
plaintiff's counsel for the first time at oral argument,
fall short of warranting remand for the reasons that follow.
the plaintiff is correct that, in determining that he had no
severe postpolio impairment as of his date last insured, the
ALJ relied in part on the opinions of Drs. Webber,
Chamberlin, and Abramson that he had failed to demonstrate
that he was disabled as of that date. See
Record at 15, 17, 19-20, 130-31, 134, 152-53, 585-90. None of
those consultants expressed an opinion as to whether the
plaintiff had established the existence of a severe
postpolio impairment as of then. See id. at 130-31,
134, 152-53, 585-90. However, the plaintiff fails to
demonstrate that a finding that the impairment was severe
would have made any difference. See Ward v. Commissioner
of Soc. Sec., 211 F.3d 652, 656 (1st Cir. 2000)
(“[A] remand is not essential if it will amount to no
more than an empty exercise.”); Bolduc v.
Astrue, Civil No. 09-220-B-W, 2010 WL 276280, at *4 n.3
(D. Me. Jan. 19, 2010) (“[A]n error at Step 2 is
uniformly considered harmless, and thus not to require
remand, unless the plaintiff can demonstrate how the error
would necessarily change the outcome of the plaintiff's
relied not only on the Webber, Chamberlin, and Abramson
opinions but also on his analysis of other evidence of record
shedding light on the plaintiff's functional ability
during the period at issue, including statements by
individuals who knew him at that time. See Record at
noted above, the plaintiff challenges the ALJ's weighing
of the expert opinion evidence; however, he does not succeed
for the reasons discussed below. He articulates no challenge
to the ALJ's reliance on other record evidence tending to
show that he was not disabled as of the relevant period.
See Statement of Errors at 3-12. That latter
category of evidence bolsters and is consistent with the
expert findings on which the ALJ relied.
accordance with Social Security Ruling 03-01p (“SSR
03-01p”), bearing on postpolio sequelae, the ALJ
considered not only statements made by the plaintiff to
treating providers but also the statements of his friends
J.C.F. and J.P., son J.M.W., ex-wife K.B., and ex-girlfriend
T.S. See Record at 16-18, 384-89; SSR 03-01p,
reprinted in West's Social Security Reporting
Service Rulings 1983-1991 (Supp. 2016), at 276
(“Evidence from employers and other third party sources
may be valuable in documenting a loss of a previous level of
functioning and should be sought when there is a discrepancy
or a question of credibility in the evidence of record and a
fully favorable determination or decision cannot be made
based on the available evidence.”). He found:
[T]he various third-party witness statements in evidence do
not support a finding of disability during the relevant
period. For example, the statements [of] [J.C.F., J. M.W.,
and K.B.] support the [plaintiff's] testimony regarding
his diagnosis of polio and its physical effects on his body.
However, [J.C.F.'s and K.B.'s] statements do not
establish a level of disability during the relevant period.
In fact, [J.C.F.] based his statement on his observations of
the [plaintiff], during his early teens, while he and the
[plaintiff] were swimming in a pond.
Moreover, statements from [J.M.W.] noted a level of activity
that is generally inconsistent with a finding of disability.
For example, he indicated that the [plaintiff], albeit with
his assistance, was capable of harvesting firewood, putting a
road in, and building a house. The undersigned notes that
this level of activity is generally consistent with his more
recent activity such as falling off a cliff with his
snowmobile, rototilling his ...