Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brooks v. Berryhill

United States District Court, D. Maine

September 17, 2017

MANDY ELLINGWOOD BROOKS, 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”) 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 through her date last insured for SSD benefits, December 31, 2011. The plaintiff seeks remand on the bases that the ALJ failed to resolve evidentiary conflicts generated by the testimony of medical expert Leonard M. Rubin, M.D., ignored the opinion of agency examining consultant Ian F. M. Buchan, PA-C, and failed to explain how he considered her obesity, back pain, and depression in combination. See Itemized Statement of Errors Pursuant to Local Rule 16.3 Submitted by Plaintiff (“Statement of Errors”) (ECF No. 14) at 1-9. 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, 2011, Finding 1, Record at 12; that, through her date last insured, she had a severe impairment of obesity, Finding 3, id.; that, through her date last insured, she had no impairment or combination of impairments that met or medically equaled the severity of any impairment listed in Appendix 1 to Subpart P, 20 C.F.R. § 404 (the “Listings”), Finding 4, id. at 13; that, through her date last insured, she had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b), except that she could stand and/or walk for at least two hours in an eight-hour workday, sit, with normal breaks, for six hours in an eight-hour workday, never climb ladders, ropes, or scaffolds or kneel, crouch, or crawl, occasionally climb ramps and stairs, balance, and stoop, had to avoid hazardous machinery and unprotected heights, could carry out short, simple instructions and maintain concentration, persistence, and pace over two-hour blocks of time during a normal workday/week, could occasionally interact with supervisors, and could adapt to changes in the workplace, Finding 5, id. at 14; that, through her date last insured, considering her age (33 years old, defined as a younger individual, on her date last insured), 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 15-16; and that she, therefore, had not been disabled at any time from November 23, 2011, her alleged onset date of disability, through December 31, 2011, her date last insured, Finding 11, id. at 17. 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 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); 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 Step 3 of the sequential evaluation process, at which step a claimant bears the burden of proving that her impairment or combination of impairments meets or equals a listing. 20 C.F.R. § 404.1520(d); Dudley v. Secretary of Health & Human Servs., 816 F.2d 792, 793 (1st Cir. 1987). To meet a listing, the claimant's impairment(s) must satisfy all criteria of that listing, including required objective medical findings. 20 C.F.R. § 404.1525(c)(3). To equal a listing, the claimant's impairment(s) must be “at least equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R. § 404.1526(a).

         I. Discussion

         A. Asserted Failure To Resolve Evidentiary Conflicts

         At hearing, Dr. Rubin testified that the plaintiff had medically determinable physical impairments of morbid obesity, degenerative disc disease (“DDD”) of the lumbar spine, obstructive sleep apnea, irritable bowel syndrome (“IBS”), and probably Celiac disease. See Record at 69-70. The ALJ inquired whether Dr. Rubin thought the plaintiff's DDD was severe. He testified:

There is some conflicting evidence about that, Your Honor. In Exhibit 17-F [the report of agency examining consultant Russell Shipman, D.O.] ¶ 2006[2] there was a reference to weakness of the left lower extremity and migratory, and has since decreased in both lower extremities. And in November of 2011 in Exhibit 27-F [the report of an examination by William S. Sutherland, M.D.] he specifically said there's no spinal stenosis, or a specific [r]adiculopathy, or sciatica, so I'm not sure who to believe, although, of course, the two comments in the two exams are separated by five years, so things might have changed in that period of time.

Id. at 70, 728-33, 1098-99. The ALJ then asked, “So that would be a non-severe impairment[] as of at least up to 12/31/11?” Id. at 70. Dr. Rubin replied, “Correct.” Id.

         The ALJ inquired whether any of the plaintiff's impairments met the criteria of the Listings during the period from November 23, 2011, through December 31, 2011. See id. at 72-73. Dr. Rubin testified that Listing 1.04(A) was not met, citing Exhibit 29-F, Dr. Sutherland's report interpreting lumbar spine imaging performed on November 23, 2011. See id. at 73, 1108; Listing 1.04(A).[3] However, he testified that Listing 1.04(A) was equaled on or before December 31, 2011. See id. at 73-74. He explained:

You see in 2006, Your Honor, . . . she seems to meet the listing according to the Exhibit 7-F, but then Dr. Sutherland's note in 27-F is, I believe, dated 11/23/11, and he calls attention to the fact that there is no spinal stenosis, et cetera, et cetera, which I already testified to, so it's hard for me to judge that issue when Your Honor will have to make that decision.

Id. at 74. The following colloquy between the ALJ and Dr. Rubin ensued:

Q. Well, if Dr. Sutherland's note that you just cited is correct, would she equal [L]isting 12.04?[4]
A. I don't believe so, Your Honor.
Q. Okay. Well, Dr. Sutherland is her treating doctor. He's seen her a lot more than once.
A. You're right.
Q. And I will accept - I will rely on Dr. Sutherland's note of that time, and I will find that she does not equal 1.04, and I will ask you to continue with the physical ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.