United States District Court, D. Maine
REPORT AND RECOMMENDED
H. Rich III United States Magistrate Judge.
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 past relevant work as a medication technician.
The plaintiff seeks remand on the bases that the ALJ erred in
evaluating (i) the severity of her migraines, (ii) regardless
of severity, the functional effects of her migraines and
other impairments, and (iii) the opinion of her treating
physician, Michael Makaretz, M.D. See Itemized
Statement of Errors Pursuant to Local Rule 16.3 Submitted by
Plaintiff (“Statement of Errors”) (ECF No. 13) at
1-12. I find no error, and, accordingly, recommend that the
court affirm the commissioner's decision.
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 December 31, 2017, Finding 1, Record at
21; that she had a severe impairment of vertigo, Finding 3,
id. at 22; that she had the residual functional
capacity (“RFC”) to perform work at all
exertional levels involving occasional climbing of ramps and
stairs, no climbing of ladders, ropes, or scaffolds,
occasional balancing, stooping, kneeling, and crouching, no
crawling, and avoidance of hazardous machinery and heights,
Finding 5, id. at 24; that she was capable of
performing past relevant work as a medication technician,
which did not require the performance of work-related
activities precluded by her RFC, Finding 6, id. at
28; that, in the alternative, considering her age (26 years
old, defined as a younger individual, on her alleged
disability onset date, August, 18, 2012), education (at least
high school), work experience (transferable skills), and RFC,
there were jobs existing in significant numbers in the
national economy that she could perform, id. at
28-29; and that she, therefore, had not been disabled from
August 18, 2012, through the date of the decision, March 28,
2016, Finding 7, id. at 29-30. 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, 416.1481; Dupuis v.
Sec'y 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), 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).
reached Step 4 of the sequential evaluation process, at which
stage the claimant bears the burden of proving inability to
return to past relevant work. 20 C.F.R. §§
404.1520(f), 416.920(f); Bowen v. Yuckert, 482 U.S.
137, 146 n.5 (1987). At this step, the commissioner must make
findings of the plaintiff's RFC and the physical and
mental demands of past work and determine whether the
plaintiff's RFC would permit performance of that work. 20
C.F.R. §§ 404.1520(f), 416.920(f); Social Security
Ruling 82-62 (“SSR 82-62”), reprinted in
West's Social Security Reporting Service Rulings
1975-1982, at 813.
alternative, 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 her past relevant work. 20 C.F.R. §§
404.1520(g), 416.920(g); Yuckert, 482 U.S. at 146
n.5; 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).
statement of errors also 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. 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).
Failure To Find a Severe Migraine Impairment
plaintiff first contends that the ALJ committed reversible
error in failing to find that her migraines constituted a
severe impairment. See Statement of Errors at 1-2.
As the commissioner rejoins, see Defendant's
Opposition to Plaintiff's Statement of Errors
(“Opposition”) (ECF No. 18) at 2-5, that finding
is supported by substantial evidence and, in any event, the
plaintiff has failed to demonstrate that any error was
stated that he found the plaintiff's migraine impairment
Treatment notes show periodic headaches, which appear to be
related to [the plaintiff's] symptoms of dizziness. There
are few references to migraines made in the record. There are
no MRIs or CT scans to demonstrate a basis for migraines. The
[plaintiff] has not required . . . treatment specific to
migraines such as Botox injections. There are no objective
findings to substantiate the frequency, duration, and
severity of migraines to warrant any functional limitations.
at 22 (citations omitted).
also relied on the opinions of agency nonexamining
consultants, explaining that, “particularly in the
instant case, ” there was “consistent medical
evidence to reach similar conclusions[.]” Id.
at 27. He noted, for example, that the plaintiff had
responded well to treatment and remained highly functional.
See id. Two of those agency nonexamining
consultants, J.H. Hall, M.D., in a September 13, 2013,
initial review of a prior SSD claim alleging the same onset
date of disability, and Richard T. Chamberlin, M.D., in a
January 23, 2015, reconsideration review of the instant SSD
and SSI claims, concluded that, while the plaintiff had a
severe vertigo impairment, her migraines were nonsevere.
See id. at 65, 69-71, 109, 114-17. Dr. Hall noted,
“The migraines do not seem very limiting currently, and
she has not actually been consistently treated due to
pregnancies.” Id. at 71. Both Drs. Hall and
Chamberlin assessed functional limitations stemming from the
plaintiff's vertigo symptoms. See id. at 70-71,
plaintiff challenges the finding of nonseverity on the bases
that the ALJ (i) erroneously stated that there were
“few references” to migraines when that
impairment was “the focus of the relevant medical
records” and (ii) “relied on his lay knowledge,
and not medical evidence, to determine the diagnostic and
treatment standards for migraines.” Statement of Errors
at 2 (citation and internal quotation marks omitted). With
respect to the second point, she elaborates that (i) there is
no evidence that Botox injections were recommended to her,
(ii) she was prescribed other medication, and (iii) “it
is unclear why the ALJ was requiring a specific name-brand
medication as a litmus test for severity.” Id.
at 2 n.1.
points are unavailing. Regardless of the number of references
in the record to migraines, the ALJ relied at least in part
on the opinions of Drs. Hall and Chamberlin, not his lay
knowledge, to find that condition nonsevere. Plainly, he
mentioned Botox by way of example and not as a definitive
“litmus test for severity.” Id.
argument, the plaintiff's counsel contended that the
ALJ's reliance on the opinions of the agency nonexamining
consultants was misplaced because they did not have the
benefit of review of records from Dr. Makaretz's practice
for the period from January 2015 through October 2015, Record
at 978-98, which he posited were the records most relevant to
the Makaretz opinion. He further ...