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Boothby v. Berryhill

United States District Court, D. Maine

March 2, 2018

MARK W. BOOTHBY, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          MEMORANDUM 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 impairments. The plaintiff seeks remand on the bases that the ALJ erred in determining that he had no severe impairments, mischaracterized the medical evidence, and failed to develop the record as required. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 11) at 9-20.[2] I conclude that remand is warranted based on the first point of error - specifically, that the ALJ erred in failing to resolve an evidentiary conflict as to whether the plaintiff had a severe impairment - and that the error was not harmless. Accordingly, I vacate the commissioner's decision and remand this case for further proceedings consistent herewith. I need not and do not reach the plaintiff's two remaining points of error.

         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 diabetes mellitus, peripheral neuropathy, a history of pancreatitis, unintentional weight loss, tremors, depression, anxiety, and alcohol abuse, Finding 2, Record at 20; that he had no impairment or combination of impairments that significantly limited or was expected to significantly limit his 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 he, therefore, had not been disabled since April 21, 2014, the date of his SSI application, Finding 4, 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. § 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. Error in Failing To Recognize Evidentiary Conflict at Step 2

         The ALJ described his conclusion that the plaintiff had no severe physical impairment as “supported by the record[, ]” stating:

The record reveals the [plaintiff's] symptoms have responded well to treatment, and findings on examinations have been relatively benign. He has been high functioning as evidenced by caring for himself, and, at times, his elderly father. He drives, prepares simple meals, shops, manages money, does yard work, reads the newspaper, and socializes with friends. The [plaintiff's] allegations are not entirely credible because they are not supported by the record . . . evidence to the degree alleged. The opinions that have been afforded substantial weight are consistent with the record.

         Record at 24. He alluded to the following discussion of the opinion evidence:

As for the opinion evidence, non-examining state agency physicians and psychological consultants maintained that the [plaintiff] did not have a severe physical or mental impairment. The undersigned affords their opinions significant evidentiary weight because they are supported by the overall record. The record does not contain any opinions from a treating or examining physician, psychiatrist, or psychologist indicating that the [plaintiff] is disabled or even has limitations greater than those determined in this decision.

Id. (citations omitted).

         The problem with this analysis, as the plaintiff notes, see Statement of Errors at 11, is that the ALJ mischaracterized the opinion evidence, ignoring the fact that, on initial review, agency nonexamining consultant Richard T. Chamberlin, M.D., found that the plaintiff had a severe alcohol/substance addiction disorder, see Record at 74. Dr. Chamberlin went on to assess several postural and environmental limitations, including, as relevant here, a limitation against more than occasional stooping and crouching, which Dr. Chamberlin attributed to the plaintiff's “chronic pain of past pancreatitis and effect of alcohol intake.” Id. at 77. The ALJ acknowledged neither the finding of a severe impairment nor the assessment of limitations. See id. at 24.[3]

         The commissioner rejoins that the ALJ's Step 2 finding that the plaintiff had no severe impairment is “supported by substantial evidence because [he] carefully considered the medical findings related to Plaintiff's medically determinable impairments, including the medical opinion evidence, and made an informed judgment about the limitations and restrictions that Plaintiff's medically determinable impairments and symptoms imposed on his ability to do basic work activities.” Opposition at 6 (citing, inter alia, Record at 20-25). She asserts that, in view of Dr. Hall's findings on reconsideration that the plaintiff had neither a severe impairment nor any postural or other limitations, the disparate opinions ‚Äúsimply present[ed] a conflict in the evidence, which the ALJ was charged with ...


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