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Day v. Berryhill

United States District Court, D. Maine

November 2, 2017

KENYETTA DAY, 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 Supplemental Security Income (“SSI”) appeal raises the question of whether the administrative law judge (“ALJ”) supportably found that the plaintiff had no severe impairment. The plaintiff seeks remand on the basis that the ALJ erred in several respects in deeming her lumbar degenerative disc disease (“DDD”) and left shoulder impairments nonsevere, including by giving undue weight to the testimony at hearing of medical expert Peter B. Webber, M.D., and to a report of examination by physician's assistant (“PA”) Lisa DeWolfe, PA-C. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 15) at 3-14. 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. § 416.920; Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the ALJ found, in relevant part, that the plaintiff had medically determinable impairments of lumbar DDD, left shoulder arthritis with tendon tears, obstructive sleep apnea, borderline obesity, and migraines/headaches, Finding 2, Record at 22; that she had no impairment or combination of impairments that significantly limited or was expected to significantly limit her ability to perform basic work-related activities for 12 months and, therefore, did not have a severe impairment or combination of impairments, Finding 3, id.; and that she, therefore, had not been disabled since February 19, 2013, the date of her SSI application, Finding 4, id. at 30. The Appeals Council declined to review the decision, id. at 1-4, making the decision the final determination of the commissioner, 20 C.F.R. § 416.1481; Dupuis v. Sec'y 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. § 1383(c)(3); Manso-Pizarro v. Sec'y 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. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

         The ALJ reached 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. Sec'y 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 Nonsevere Back Impairment

         1. Background

         The ALJ found that the plaintiff's medically determinable impairments could reasonably be expected to produce her alleged symptoms “except for the low back and lower extremity symptoms she attributes to her lumbar DDD.” Record at 23 (emphasis in original). He explained that she had had “minimal findings upon imaging studies” and “inconsistent and often benign findings upon physical examination” and that there was “no substantial evidence that she ha[d] any nerve impingement that could account for her subjective complaints.” Id.

He elaborated:
There is insufficient evidence to establish that the [plaintiff's] DDD is causing her subjective low back and lower extremity complaints, or any other symptom or limitation. The undersigned therefore finds that the [plaintiff's] DDD . . . is non-severe. Moreover, the [plaintiff] has not been diagnosed with any other medically determinable impairment to account for her low back and lower extremities symptoms, and symptoms alone cannot establish the existence of such an impairment. For these reasons, the undersigned has not considered the [plaintiff's] subjective low back and lower extremity pain and limitations in making a determination regarding the severity of [her] medically determinable impairments.

Id. at 23 (citation omitted). He noted:

At the hearing, Dr. Webber testified about the lack of consensus as to whether or not the [plaintiff's] imaging studies have demonstrated nerve root impingement. He concluded that there was a “lack of demonstrative evidence” of neural involvement based upon the objective medical evidence, including objective testing and clinical presentation. Dr. Webber further testified that had there been nerve impingement at ¶ 1 “to a point of serious degree, ” it would have “shown up” on the nerve conduction studies.
Dr. Webber testified, the etiology of [the plaintiff's] symptoms is unknown, and symptoms alone cannot establish the existence of a medically determinable impairment.

Id. at 24-25 (citation omitted) (emphasis in original).

         Turning to the expert opinion evidence of record bearing on the plaintiff's DDD, the ALJ explained that he had given “the greatest weight” to Dr. Webber's testimony, “little weight” to the opinions of agency nonexamining consultants Richard T. Chamberlin, M.D., and Marcia Lipski, M.D., except that their findings of a nonsevere DDD condition were “consistent with the medical evidence of record, and Dr. Webber's conclusions[, ]” and “very little weight” to the opinions of the plaintiff's primary care physician, Marie Albert, D.O. Id. at 28-29 (citations omitted). He stated that, to the extent that Drs. Chamberlin and Lipski had assessed functional restrictions relating to the plaintiff's lumbar DDD, they were inconsistent with their determinations that the condition was nonsevere. See id. at 28-29.

With respect to the Webber testimony, the ALJ explained, in relevant part:
Dr. Webber is thoroughly familiar with the Social Security Administration disability standards. Unlike the other medical professionals who rendered opinions in this matter, Dr. Webber was able to review all of the medical evidence of record, and his opinions are consistent with the evidence of record as a whole. Moreover, he was able to observe the [plaintiff] at the hearing and ask her questions. Dr. Webber provided detailed and thoughtful opinions and analysis, and he cited to specific records in describing the bases of his conclusions. As described above, Dr. Webber determined that the etiology of the [plaintiff's] low back and lower extremity symptoms is unknown, which is soundly based upon the fact that there has been disagreement among providers as to whether the [plaintiff] has any nerve root impingement, the [plaintiff's] negative EMG [electromyogram] study, and the absence of consistently positive SLR [straight leg raise] tests over time. Dr. Webber noted the wide discrepancy between the objective evidence and the [plaintiff's] subjective symptoms, which further supports his finding that there is no diagnosis of a medically determinable impairment that would account for these symptoms.

Id. at 28. With respect to the Albert opinion, the ALJ explained:

As Dr. Webber noted at the hearing, Dr. Albert's opinions regarding the [plaintiff's] alleged low back pain are based upon the [plaintiff's] subjective complaints. Indeed, the only “clinical findings and objective signs” she cites as bases for her opinions are that the [plaintiff] “moves slowly” and “uses a cane.” More critically, she does not offer a diagnosis of a medically determinable impairment that would account for the [plaintiff's] symptoms, and instead has provided only a “diagnosis” of “chronic low back pain”; and symptoms alone cannot establish the existence of a medically determinable impairment. Moreover, even if Dr. Albert had identified such an impairment, her [opinion that the plaintiff had a] less than sedentary work capacity is ...

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