United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
H. RICH III UNITED STATES MAGISTRATE JUDGE
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.
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).
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 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).
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).
Asserted Failure To Resolve Evidentiary Conflicts
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
There is some conflicting evidence about that, Your Honor. In
Exhibit 17-F [the report of agency examining consultant
Russell Shipman, D.O.] ¶ 2006 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.
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). 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?
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