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Hustus v. Berryhill

United States District Court, D. Maine

October 1, 2017

CATO F. HUSTUS, 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 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 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 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. 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 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.

         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

         A. Finding of No Severe Physical Impairment

         The 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.

         1. Diverticulitis

         The ALJ 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).

         The ALJ 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.

Id.

         The ALJ 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).

         She 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.

         The 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.

         At oral 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.”).

         The 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 found.

         The 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.

         The 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.

         In any 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.”).

         2. Hip, Back, and Knee Pain

         The ALJ acknowledged that the plaintiff had complained of hip and ...


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