United States District Court, D. Maine
MEMORANDUM DECISION 
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 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
I find no error and, in the alternative, conclude that any
error is harmless. Accordingly, I affirm the
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).
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).
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.
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.
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.”)
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.
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.
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.
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 ...