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Dubois v. Berryhill

United States District Court, D. Maine

December 3, 2017

RAYMOND A. DUBOIS, JR., 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 work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that the ALJ erred at Step 3 in failing to call a medical expert to determine whether his migraine headaches equaled the criteria of Listing 11.03, Appendix 1 to 20 C.F.R. Part 404, Subpart P (the “Listings”), or to make factual determinations relevant to that issue, and, at Step 4, in reaching physical and mental residual functional capacity (“RFC”) determinations that lack a proper medical foundation. See Plaintiff's Statement of Errors (“Statement of Errors”) (ECF No. 14) at 4-16. 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. Sec'y 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 March 31, 2014, Finding 1, Record at 113; that he had severe impairments of chronic headaches with migraine features, affective disorder, anxiety disorder, obstructive sleep apnea, and somatic dysfunction of the spine, Finding 3, id.; that he had no impairment or combination of impairments that met or medically equaled in severity the criteria of a listed impairment, Finding 4, id. at 114; that he had the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except that he could lift and carry no more than 20 pounds occasionally and 10 pounds frequently, never climb ladders, scaffolding, or ropes, never work around dangerous equipment or unprotected heights, never operate a commercial vehicle, could not be in a loud or very loud hearing environment, needed to avoid work in direct sunlight or with strobe lights, and could have no contact with the public, Finding 5, id. at 116; that, considering his age (41 years old, defined as a younger individual, on his alleged disability onset date), education (limited), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that he could perform, Findings 7-10, id. at 122-23; and that he, therefore, had not been disabled from his alleged onset date of disability, June 1, 2009, through the date of the decision, January 14, 2016, Finding 11, id. at 123-24. 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. §§ 404.981, 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. §§ 405(g), 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 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), 416.920(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. Sec'y of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

         The statement of errors also implicates Step 3 of the sequential evaluation process. At Step 3, the claimant bears the burden of proving that his impairment or combination of impairments meets or equals a listing. 20 C.F.R. §§ 404.1520(d), 416.920(d); Dudley v. Sec'y of Health & Human Servs., 816 F.2d 792, 793 (1st Cir. 1987). To meet a listing, the claimant's impairment(s) must satisfy all criteria of that listing, including required objective medical findings. 20 C.F.R. §§ 404.1525(c)(3), 416.925(c)(3). To equal a listing, the claimant's impairment(s) must be “at least equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R. §§ 404.1526(a), 416.926(a).

         I. Discussion

         A. Asserted Errors in Evaluating Listing 11.03

         1. Failure To Call Medical Expert

         The plaintiff first complains that the ALJ erred in failing to obtain the opinion of a medical expert as to whether his migraine headaches equaled the criteria of Listing 11.03 (minor motor seizures). See Statement of Errors at 4-8. He acknowledges that he bore the burden of proving that his condition equaled a listing but asserts that it was impossible to do so unless the ALJ called a medical expert, given that the agency prohibits reliance on outside medical experts to find that the criteria of a listing are equaled. See id. at 5 (citing 20 C.F.R. § 404.1526; Social Security Administration, Hearings, Appeals, and Litigation Law Manual (HALLEX) §§ I-2-5-32 and I-2-5-34). He argues that, pursuant to HALLEX § I-2-5-34, “[a]n ALJ must obtain a ME [medical expert] opinion when an ALJ considers whether a claimant's impairment(s) medically equal a [l]isting.” Id. (emphasis in original) (footnote omitted).

         The commissioner argues that this is a misreading of the authorities on which the plaintiff relies, see Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 20) at 2-8, and I agree.

         Both 20 C.F.R. § 404.1526, which pertains to SSD cases, and § 416.926, which pertains to SSI cases, state that, in assessing medical equivalence, the commissioner will “consider the opinion given by one or more medical or psychological consultants designated by the Commissioner.” 20 C.F.R. §§ 404.1526(c), 416.926(c). In turn, “[a] medical or psychological consultant designated by the Commissioner includes any medical or psychological consultant employed or engaged to make medical judgments by the Social Security Administration, the Railroad Retirement Board, or a State agency authorized to make disability determinations.” Id. §§ 404.1526(d), 416.926(d).

         The ALJ did so, taking into account the opinions of medical consultants engaged by a state agency to make disability determinations, namely, J.H. Hall, M.D., and Donald Trumbull, M.D. See Record at 121, 184-86, 210-12. Both Dr. Hall, in an opinion dated August 9, 2013, and Dr. Trumbull, in an opinion dated April 3, 2014, expressly considered Listing 11.03 but continued the sequential evaluation process, impliedly finding that the criteria of the listing were neither met nor equaled. See Id. at 184-85, 210-11. They explained, in relevant part:

Although migraine is [the] closest listed impairment, it is not clear that [the plaintiffs] headaches are, in fact, migraines. Chronic daily headaches related to excess caffeine or caffeine withdrawal ha[ve] been suggested as has been somatic dysfunction as a cause.

Id. at 185, 211. The ALJ gave “great weight” to the Hall and Trumbull opinions. Id. at 121.

         HALLEX §§ I-2-5-32 and I-2-5-34 pertain to the circumstances in which, at the hearing level, an ALJ may or must call upon a medical expert, or ME. See HALLEX §§ I-2-5-32, I-2-5- 34. Section I-2-5-32 provides, in relevant part:

MEs provide opinions by either testifying at a hearing or responding to written interrogatories. An [ALJ] may use an ME before, during, or after a hearing. The need for ME opinion evidence is generally left to the ALJ's discretion, except in ...

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