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Tozier v. Berryhill

United States District Court, D. Maine

August 4, 2017

AINSLEY TOZIER, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          REPORT AND RECOMMENDED DECISION [1]

          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 past relevant work as a hairdresser, server, kitchen helper, sales associate, and stock clerk and, in the alternative, performing other work existing in significant numbers in the national economy. The plaintiff seeks remand on the basis that, in assessing her residual functional capacity (“RFC”), the ALJ erroneously omitted any limitations attributable to fibromyalgia or carpal tunnel syndrome (“CTS”). See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 11) at 4-13. 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, 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 June 30, 2016, Finding 1, Record at 11; that she had a severe impairment of degenerative disc disease of the lumbar spine, Finding 3, id. at 12; that she retained the RFC to perform medium work as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c) except that she could frequently stoop and climb stairs, ramps, ropes, ladders, and scaffolds, Finding 5, id. at 16; that she was capable of performing past relevant work as a hairdresser, server, kitchen helper, sales associate, and stock clerk, which did not require the performance of work-related activities precluded by her RFC, Finding 6, id. at 19-20; in the alternative, considering her age (36 years old, defined as a younger individual, on her amended alleged disability onset date, September 30, 2013), [2] 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, id. at 20-21; and that she, therefore, was not disabled from September 30, 2013, through the date of the decision, October 21, 2015, Finding 7, id. at 22. 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 4 and, in the alternative, Step 5 of the sequential evaluation process. 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 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), 416.920(f); Social Security Ruling 82-62 (“SSR 82-62”), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.

         At Step 5 of the sequential evaluation process, 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, 482 U.S. at 146 n.5; 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 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 argues that the ALJ's RFC determination is the product of multiple errors: (i) findings that she had no medically determinable impairment of fibromyalgia or severe impairment of CTS, (ii) the improper rejection of the physical RFC opinion of treating physician John Garofalo, M.D., primarily because he included limitations stemming from those impairments, (iii) the erroneous rejection of a vocational assessment by treating rehabilitation psychologist Richard Thomas, Ph.D., and (iv) misplaced reliance on the opinions of agency nonexamining consultants Donald Trumbull, M.D., and Richard T. Chamberlin, M.D. See Statement of Errors at 4-13. For the reasons that follow, I find no error meriting remand.

         A. Finding of No Medically Determinable Fibromyalgia Impairment

         “No symptom or combination of symptoms can be the basis for a finding of disability, no matter how genuine the individual's complaints may appear to be, unless there are medical signs and laboratory findings demonstrating the existence of a medically determinable physical or mental impairment(s) that could reasonably be expected to produce the symptoms.” Social Security Ruling 96-7p, reprinted in West's Social Security Reporting Service, Rulings 1983-1991 (Supp. 2016) (“SSR 96-7p”), at 133; see also 20 C.F.R. §§ 404.1508, 416.908.

         “It is the plaintiff's burden to produce sufficient evidence to allow the commissioner to reach a conclusion at Step 2; the absence of evidence provides support for a conclusion adverse to the plaintiff at this point in the sequential evaluation process.” Coffin v. Astrue, Civil No. 09-487-P-S, 2010 WL 3952865, at *2 (D. Me. Oct. 6, 2010) (rec. dec., aff'd Oct. 27, 2010).

         Social Security Ruling 12-2p (“SSR 12-2p”), which pertains to fibromyalgia, provides, in relevant part:

Generally, a person can establish that he or she has an MDI [medically determinable impairment] of FM [fibromyalgia] by providing evidence from an acceptable medical source. A licensed physician (a medical or osteopathic doctor) is the only acceptable medical source who can provide such evidence. We cannot rely upon the physician's diagnosis alone.
***
. . . We will find that a person has an MDI of FM if the physician diagnosed FM and provides the evidence we describe in section II.A. [setting forth the 1990 American College of Rheumatology (“ACR”) Criteria for the Classification of Fibromyalgia] or section II.B. [setting forth the 2010 ACR Preliminary Diagnostic Criteria], and the physician's diagnosis is not inconsistent with the other evidence in the person's case record.

SSR 12-2p, reprinted in West's Social Security Reporting Service Rulings 1983-1991 (Supp. 2016), at 461-62 (footnote omitted).

         The 1990 criteria require a showing of (i) “[a] history of widespread pain . . . that has persisted (or that persisted) for at least 3 months[, ]” (ii) “[a]t least 11 positive tender points on physical examination” that “must be found bilaterally (on the left and right sides of the body) and both above and below the waist” in 18 specified tender point sites, and (iii) “[e]vidence that other disorders that could cause the symptoms or signs were excluded.” Id. at 462-63. The 2010 criteria require a showing of (i) “[a] history of widespread pain[, ]” (ii) “[r]epeated manifestations of six or more FM symptoms, signs, or co-occurring conditions, especially manifestations of fatigue, cognitive or memory problems (‘fibro fog'), waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome[, ]” and (iii) “[e]vidence that other disorders that could cause these repeated manifestations of symptoms, signs, or co-occurring conditions were excluded[.]” Id. at 463 (footnotes omitted).

         The ALJ found no medically determinable fibromyalgia impairment, explaining:

The record contains several references to the diagnosis of fibromyalgia. However, the extensive medical record contains no evidence showing that the [plaintiff] exhibits the symptoms associated with this impairment. Specifically, the record does not confirm that [she] has the requisite number and location of tender trigger point findings and there is no evidence that medical doctors have excluded other impairments as required in [SSR] 12-2p. Tender bilateral elbows, medial knees, trochanters scapulae and sternum were noted on examination performed in October of 2012, eleven months prior to the amended alleged onset date. However, that limited description does not satisfy the requirements described in [SSR] 12-2p. Treatment notes covering the period since the alleged onset date do not describe findings consistent with the requirements of [SSR] 12-2p. Thus, this diagnosis does not comport with the requirements set forth in either ...

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