Chretien v. Berryhill

          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. The plaintiff seeks remand on the bases that the ALJ erred by failing to find his depression severe at Step 2 of the sequential evaluation process, failing to have this case evaluated by a psychologist or psychiatrist as he asserts was required by 42 U.S.C. § 421(h), and rejecting the uncontradicted expert opinion of examining consultant John L. Newcomb, M.D. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 13) at 2. I find no 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, 2013, Finding 1, Record at 14; that, through his date last insured, he had a severe impairment of cervical spine disorder, Finding 3, id.; that, through his date last insured, he had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R § 404.1567(b), except that he was able to lift and carry 10 pounds frequently and 20 pounds occasionally, sit for six hours in an eight-hour workday, stand for six hours in an eight-hour workday, walk for six hours in an eight-hour workday, kneel, crouch, crawl, and climb ramps and stairs frequently, and stoop and climb ladders, ropes, and scaffolds occasionally, Finding 5, id. at 18; that, through his date last insured, considering his age (46 years old, defined as a younger individual, on his alleged onset date of disability, and 51 years old, defined as an individual closely approaching advanced age, as of his date last insured), education (at least high school), work experience (transferability of job skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that he could perform, Findings 7-10, id. at 24; and that he, therefore, had not been disabled from September 2, 2008, his alleged onset date of disability, through December 31, 2013, his date last insured, Finding 11, id. at 25. 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 his 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 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 asserts that the ALJ's Step 2 determination that he had no severe impairment of depression was the product of two errors: (i) failing to have the case evaluated by a psychologist or psychiatrist as required by 42 U.S.C. § 421(h) and (ii) rejecting the uncontradicted expert opinion of Dr. Newcomb, the evaluating psychiatrist. See Statement of Errors at 2-6.^[2] For the reasons discussed seriatim, I find no error.

         A. Factual Background

The plaintiff did not initially allege that his disability was based on a mental impairment. See, e.g., Record at 62. The commissioner made no arrangements for his examination by an agency mental-health consultant or the review of his case at either the initial or reconsideration stages by an agency nonexamining mental-health consultant. See, e.g., id. at 62-68, 70-77. Following the plaintiff's request for a hearing before an ALJ, his counsel asserted in a June 16, 2015, prehearing brief that he claimed disability based in part on depression, citing progress notes of treating physician James S. Smith, D.O., from 2009, March 2014, and January 2015, as well as Dr. Newcomb's May 26, 2015, report of examination and May 21, 2015, statement of ability to perform mental work-related activities. See id. at 200-202, 680-84. At the plaintiff's November 5, 2015, hearing before the ALJ, he described his treatment for, and symptoms of, depression, including difficulties staying focused, paying attention, and working around other people. See id. at 46-51.

         The ALJ deemed the plaintiff's depression nonsevere, explaining:

The [plaintiff] was diagnosed with, and prescribed medication for[, ] an unspecified depressive disorder in June 2009. Medical records prior to December[] 2013[] document only occasional complaints of depression, disturbances of sleep, decreased energy, difficulty concentrating, feelings of worthlessness, and difficulty tolerating crowds. However, the [plaintiff] was typically described in the record as alert, oriented, pleasant, and rational with an appropriate mood and affect and intact memory, and with no delusions, abnormal speech, or hallucinations. Despite an increased number of reported symptoms, mental status examinations since December 2013[] have also typically been negative for flight of ideas, suicidal or homicidal ideation, psychomotor agitation, obsessions, compulsions, delusions, hallucinations, and loosening of associations. Furthermore, examiners in September 2014[] found the [plaintiff's] attention span and concentration to be normal in September[] 2014, and his memory to be intact, and his attention and concentration to be normal in September[] 2015.

The medical evidence of record fails to demonstrate that the [plaintiff] has ever required psychiatric hospitalization. While he recently began counseling in September 2015, the evidence fails to demonstrate that he has sought or received psychotherapy prior to this, or at any time during the period at issue. The [plaintiff] was being prescribed Paroxetine prior to the date last insured, but the evidence does not demonstrate that he suffered significant adverse side effects from this medication.

Id. at 16-17 (citations omitted).

         In accordance with the commissioner's psychiatric review technique, the ALJ then rated the degree of the plaintiff's limitation in four broad functional areas: activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. See id. at 17-18; 20 C.F.R. § 404.1520a(c).

         He concluded that the plaintiff had mild limitation in activities of daily living, stating that the evidence prior to his date last insured indicated that he was “capable of performing a wide range of activities of daily living including helping with laundry, shopping, sweeping, mopping, vacuuming, checking on his father, and driving an automobile.” Record at 17 (citations omitted). He noted, inter alia, that, since the plaintiff's alleged onset date of disability, he had performed “a variety of odd jobs such as painting ceilings, putting up ceiling fans, construction work, mowing lawns, snow blowing yards, laying floor tile, mixing 80 pound bags of cement, building a chicken house, and doing electrical job[s].” Id. (citations omitted).

         He found that the plaintiff had mild limitation in social functioning, noting that he had been “capable of interacting with family members such as his wife and father” and shopping in stores, apparently had been able to interact with others while doing odd jobs, and did not appear to have significant difficulties interacting with treatment providers. Id.

         He concluded that the plaintiff had mild limitation in concentration, persistence, or pace, noting that he had been able to maintain concentration, persistence, or pace sufficient to perform the cited activities of daily ...