United States District Court, D. Maine
CATO F. HUSTUS, Plaintiff
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant
REPORT AND RECOMMENDED
H. Rich III United States Magistrate Judge.
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 meat processor. The
plaintiff seeks remand on the bases that the ALJ erred in
finding no severe physical impairment and making a flawed
determination of his mental residual functional capacity
(“RFC”), predicated in part on an erroneous
credibility finding. See Itemized Statement of
Specific Errors (“Statement of Errors”) (ECF No.
12) at 10-18. I find no reversible error and, accordingly,
recommend that the court affirm the commissioner's
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 December 31, 2011, Finding 1, Record at
11; that he had severe impairments of attention deficit
hyperactivity disorder and mood disorder, Finding 3,
id.; that he had the RFC to perform a full range of
work at all exertional levels, but with the following
nonexertional limitations: he could perform simple, routine
tasks with normal work breaks over a normal workday and could
have no interaction with the general public, Finding 5,
id. at 14; that he was capable of performing past
relevant work as a meat processor, Finding 6, id. at
17; and that he, therefore, had not been disabled from August
1, 2006, his alleged onset date of disability, through the
date of the decision, December 29, 2015, Finding 7,
id. at 18. 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.
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).
reached Step 4 of the sequential evaluation process, at which
stage 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.
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).
Finding of No Severe Physical Impairment
plaintiff first argues that the ALJ erred in failing to find
any of his physical impairments severe at Step 2.
See Statement of Errors at 10-12. He focuses on the
lack of any severe finding of diverticulitis but also argues,
in passing, that his back, knee, and hip impairments,
although admittedly not in themselves disabling, should also
have been found severe. See id. I find no error.
found that “[t]he medical record show[ed] evidence of
diverticulitis[, ]” noting that the plaintiff had
undergone a colostomy in March 2015 and a colostomy reversal
in May 2015, at which time he had a normal colonoscopy.
Record at 11. She noted, “Although there is evidence of
diarrhea, doctors simply encouraged the [plaintiff] to
‘eat more vegetables regularly and use yogurt to help
re-establish normal bowel flora.'” Id.
(quoting id. at 557) (corrections by ALJ) (progress
note dated October 1, 2015).
determined that, although the plaintiff had alleged an
inability to engage in substantial gainful activity due to
his diverticulitis and colostomy as well as joint
dysfunction, “he ha[d] failed to submit persuasive
medical records relative to these impairments.”
Id. She explained:
The regulations at 20 C.F.R. §§ 404.1528 and
416.928 provide that a statement of symptoms alone is not
sufficient to establish that there is a physical or mental
impairment. The statement of symptoms must be accompanied by
signs and laboratory findings. Although the [plaintiff] has
made statements regarding these conditions, the record does
not contain medical information with evidence of signs or
laboratory studies establishing a medically determinable
impairment that would have interfered with his ability to
perform basic work activities at any time.
also gave great weight to a July 7, 2014, opinion of agency
examining consultant Robert Charkowick, D.O., that the
plaintiff had “‘no restrictions to do
work-related activities such as sitting, standing, walking,
lifting, carrying, bending, handling objects, hearing,
speaking, or traveling.'” Id. at 12
(quoting id. at 512).
concluded that the plaintiff's physical impairments were
not only unsupported by signs, symptoms, or laboratory
findings but also failed to meet the commissioner's
duration requirement and had not been shown to significantly
limit the plaintiff's ability to perform basic work
activities. See id.
plaintiff contends that, in deeming his diverticulitis
nonsevere, the ALJ ignored more recent evidence, in the form
of a November 10, 2015, progress note and his testimony at
his November 30, 2015, hearing, indicating that the dietary
changes he had been instructed to make had not helped to
alleviate his continuing abdominal pain and digestive issues,
“and that the assessment of his continued problems
remained inconclusive.” Statement of Errors at 10;
see also Record at 50-52, 554-56. He adds that any
reliance on Dr. Charkowick's opinion was misplaced
because his diverticulitis postdated Dr. Charkowick's
examination, which, in any event, was too cursory to stand as
substantial evidence that he had no severe physical
impairment. See Statement of Errors at 11.
argument, counsel for the commissioner conceded that the ALJ
could not rely on the Charkowick opinion for the proposition
that the plaintiff's diverticulitis was nonsevere because
the opinion predated the plaintiff's development of that
condition. However, she contended that the plaintiff had
failed to establish that any ongoing difficulties caused
work-related functional limitations or met the so-called
duration requirement or, assuming error, that it was harmful.
See also Defendant's Opposition to
Plaintiff's Statement of Errors
(“Opposition”) (ECF No. 16) at 5-6; 20 C.F.R.
§§ 404.1509, 416.909 (“Unless your impairment
is expected to result in death, it must have lasted or be
expected to last for a continuous period of at least 12
months. We call this the duration requirement.”).
plaintiff's counsel rejoined that, while there was no
evidence of specific functional limitations, there was
sufficient evidence in the form of the plaintiff's
hearing testimony and the November 10, 2015, progress note
that his condition was severe - that is, still causing
problems for which no effective treatment had then been
commissioner has the better argument. On this record, the ALJ
reasonably concluded that the plaintiff had failed to prove
that his diverticulitis impairment imposed work-related
limitations or had lasted, or was expected to last, the
requisite 12 months.
plaintiff developed gastrointestinal issues/diverticulitis in
February 2015. See Record at 50-52. As of the date
of his hearing, November 30, 2015, he was still undergoing
diagnostic testing to determine why he continued to suffer
from diarrhea following the reversal of his colostomy in May
2015. See id. at 50-51, 554-56. He was noted to have
reported on November 10, 2015, that he had five to eight
loose stools a day and occasional abdominal pain. See
id. at 554. He also testified at hearing that he
“sometimes” needed to be close to a restroom
because his digestive system remained unpredictable.
Id. at 51. However, it is not clear what
work-related restrictions, if any, these symptoms imposed,
and whether his impairment was expected to last for a
continuous period of at least 12 months.
event, as the commissioner argues, see Opposition at
5, even assuming error, the plaintiff offers nothing but
vague speculation that his “need for frequent bathroom
breaks due to diverticulitis might reasonably have been
expected to preclude his ability to perform his past relevant
work or other work in the national economy[, ]”
Statement of Errors at 11. Remand is unwarranted in these
circumstances. See, e.g., Courtney v. Colvin, Civil
No. 2:13-cv-72-DBH, 2014 WL 320234, at *4 (D. Me. Jan. 29,
2014) (“[T]he plaintiff fails to identify the specific
limitations imposed by these impairments, whether or not
severe, that would have necessarily affected the outcome of
her application for benefits, a basic requirement at this
level of review.”).
Hip, Back, and Knee Pain
acknowledged that the plaintiff had complained of hip and