Wing v. Berryhill

          REPORT AND RECOMMENDED DECISION^[1]

          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 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.

         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 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).

         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 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

         The plaintiff challenges the ALJ's finding that he had no severe postpolio impairment as of his date last insured, asserting that:

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. at 7-8.^[2]

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.

         These 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.

         First, 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 claim.”).

         The ALJ 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 16-21.

         As 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.

         In 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 ...