Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fecteau v. Berryhill

United States District Court, D. Maine

April 20, 2018

ALLISON FECTEAU, Plaintiff
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Performing the Duties and Functions Not Reserved to the Commissioner of Social Security, Defendant

          MEMORANDUM 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 basis that, in determining her residual functional capacity (“RFC”), the ALJ failed to include any functional limitations attributable to her migraine headaches. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 13) at 3-4.[2] I find no error and, in the alternative, conclude that any error is harmless. Accordingly, I 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 25; that she had the severe impairments of cervical degenerative disc disease, migraines, obesity, lumbar spondylosis, and sacroilitis, Finding 3, id.; that she had the RFC to perform medium work as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c), except that she could lift and/or carry 50 pounds occasionally and 25 pounds frequently, sit for six hours and stand and/or walk for six hours in an eight-hour workday, and frequently crawl, crouch, kneel, stoop, and climb ladders, ropes, and scaffolds, Finding 5, id. at 28; that she was capable of returning to her past relevant work as a cashier, customer service clerk, and psychiatric aide, which did not require the performance of work-related activities precluded by her RFC, Finding 6, id. at 33; that, in the alternative, considering her age (39 years old, defined as a younger individual, on her alleged disability onset date, October 15, 2012), education (at least high school), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that she could perform, id. at 33-34; and that she, therefore, had not been disabled from October 15, 2012, through the date of the decision, February 18, 2016, Finding 7, id. at 34. 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 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).

         I. Discussion

         The sole issue remaining in this appeal concerns the sufficiency of the ALJ's findings of fact with respect to the plaintiff's migraines. At her administrative hearing, the plaintiff testified that she suffered migraines at the rate of “probably three a week” that caused her to be “down for probably most of the day - actually most of the day.” Record at 130-31.

         The ALJ deemed the plaintiff's migraines severe, see Finding 3, id. at 25, but made no findings concerning their frequency and assessed no RFC limitations stemming from them, see id. at 28-33. Neither the ALJ nor the plaintiff's counsel posed questions to a vocational expert (“VE”) present at the plaintiff's hearing regarding the impact that any migraine-related limitations would have had on her ability to work. See id. at 138-42.

         The plaintiff argues that the ALJ “failed to make the necessary critical assessment of frequency [of migraines] and ask the [VE] to assess the[ir] impact on her ability to work a 40 hour week on an ongoing basis as contemplated in [Social Security] Ruling 96-8p [(“SSR 96-8p”)].” Statement of Errors at 4. She contends that this was reversible error in view of her testimony that, as of the time of the hearing, she was having “probably three” migraines per week, and that the ALJ impermissibly interpreted raw medical evidence in concluding that her migraines imposed no restriction on her ability to work. Id. (quoting Record at 131); see also, e.g., Staples v. Astrue, Civil No. 09-440-P-S, 2010 WL 2680527, at *5 (D. Me. June 29, 2010) (rec. dec. aff'd, July 19, 2010) (“While it is the claimant's burden at Step 4 to produce evidence of his RFC, the commissioner's determination at Step 4 regarding RFC must be supported by substantial evidence. The First Circuit has held, and has reaffirmed on several occasions, that an [ALJ], as a layperson, is not qualified to assess RFC based on raw medical evidence, except to the extent that commonsense judgments regarding RFC can be made.”) (citations omitted).

         Yet, as the commissioner rejoins, see Defendant's Opposition to Plaintiff's Itemized Statement of Errors (“Opposition”) (ECF No. 17) at 2-3, both of these points miss the mark.

         While SSR 96-8p addresses the assessment of a claimant's RFC, it imposes no obligation to specify the frequency of intermittent symptoms. SSR 96-8p, reprinted in West's Social Security Reporting Service Rulings 1983-1991 (Supp. 2017), at 142-50.

         Moreover, the ALJ did not construe raw medical evidence in determining that the plaintiff's migraines, while severe, imposed no functional limitations. Rather, he relied on the opinions of two agency nonexamining consultants, Donald Trumbull, M.D., and Myron Watkins, M.D., neither of whom assessed such limitations. See Record at 33, 148-49, 170-71. Drs. Trumbull and Watkins noted, in relevant part, that the plaintiff had a history of severe migraines that “appeared to be coming under better control” and that they could not verify that she had a frequency of one to two migraines per week for purposes of assessing whether her migraine impairment met the criteria of Listing 11.03, Appendix 1 to 20 C.F.R. Part 404, Subpart P. See id. at 148, 170.[3]

         As this court has previously noted, “a finding of a severe impairment need not always result in limitations in an RFC.” Burns v. Astrue, No. 2:11-cv-151-GZS, 2012 WL 313705, at *4 (D. Me. Jan. 30, 2012) (rec. dec. aff'd, Feb. 21, 2012). In Burns, the court rejected a claimant's argument that an ALJ had erred in excluding “limitations on concentration” attributable to a severe impairment, attention deficit hyperactivity disorder (“ADHD”), noting that the record indicated that, “once controlled ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.