United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
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
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).
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 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).
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).
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. For the reasons
discussed seriatim, I find no error.
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.
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).
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. §
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).
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.
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 ...