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Coffin v. Berryhill

United States District Court, D. Maine

March 2, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant


          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 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.

         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 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).

         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 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.

         In the 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).

         The 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).

         I. Discussion

         A. Failure To Find a Severe Migraine Impairment

         The 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 harmful.

         The ALJ stated that he found the plaintiff's migraine impairment nonsevere, explaining:

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.

         Record at 22 (citations omitted).

         The ALJ 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.[2] 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, 116-17.[3]

         The 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.

         These 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.

         At oral 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 ...

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