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Carlin v. Berryhill

United States District Court, D. Maine

May 4, 2018

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


          John H. Rich III United States Magistrate Judge.

         This Social Security Disability (“SSD”) 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 bases that the ALJ erred in (i) identifying her back impairments solely as degenerative disc disease, (ii) concluding that her back impairments did not medically equal the criteria of Listing 1.04, Appendix 1 to 20 C.F.R. Part 404, Subpart P (“the Listings”), and denying her the opportunity to prove that they did, (iii) failing to assess any limitations resulting from inflammatory bowel disease (“IBD”) and Crohn's disease, (iv) relying on the opinion of an agency nonexamining consultant, John B. Kurtin, M.D., who did not have the benefit of review of material evidence post-dating his October 15, 2014, opinion, and (v) failing to assess limitations in her ability to focus and persist resulting from her chronic pain. See Plaintiff's Statement of Errors (“Statement of Errors”) (ECF No. 11) at 6-18.[2] I find no reversible 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; 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 23; that she had the severe impairments of IBD/Crohn's disease, degenerative disc disease, an anxiety-related disorder, and an affective disorder, Finding 3, id. at 23; that she did not have an impairment or combination of impairments that met or medically equaled the severity of any of the Listings, Finding 4, id. at 25; that she had the residual functional capacity (“RFC”) to perform medium work as defined in 20 C.F.R. § 404.1567(c) except that she could stand/walk for six hours in an eight-hour workday, sit for six hours in an eight-hour workday, frequently climb ramps and stairs, ladders, ropes, and scaffolds, frequently kneel, crouch, and crawl, was limited to performing simple routine tasks and tolerating few changes in the routine work setting, could interact occasionally with coworkers, could work in sight of coworkers but could do no tandem work, could interact occasionally with supervisors, and could never work with the public, Finding 5, id. at 26-27; that, considering her age (47 years old, defined as a younger individual, on her alleged disability onset date, November 5, 2013), 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, Findings 7-10, id. at 33; and that she, therefore, had not been disabled from November 5, 2013, through the date of the decision, March 18, 2016, Finding 11, id. at 35. 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; 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); 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 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); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); 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 Steps 2, 3, and 4 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).

         At Step 3, the claimant bears the burden of proving that her impairment or combination of impairments meets or equals a listing. 20 C.F.R. § 404.1520(d); Dudley v. Sec'y of Health & Human Servs., 816 F.2d 792, 793 (1st Cir. 1987). To meet a listing, the claimant's impairment(s) must satisfy all criteria of that listing, including required objective medical findings. 20 C.F.R. § 404.1525(c)(3). To equal a listing, the claimant's impairment(s) must be “at least equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R. § 404.1526(a).

         At Step 4, the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. § 404.1520(f); Yuckert, 482 U.S. 137 at 146 n.5. 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); Social Security Ruling 82-62 (“SSR 82-62”), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.

         I. Discussion

         A. Misidentification of Back Impairments

         The plaintiff first faults the ALJ for identifying degenerative disc disease as her only back impairment, asserting that she suffered from L4-5 herniated disc and an annular tear in her lumbar spine with radiculopathy and right lower extremity pain, as well as spondylosis of her cervical spine and of her thoracic spine. See Statement of Errors at 7. She contends that this error was not harmless because it contributed to the ALJ's failure at Step 3 to properly consider whether Listing 1.04 was met or equaled and to her gross overestimate at Step 4 of her physical RFC. See id.

         As the commissioner rejoins, see Defendant's Opposition to Plaintiff's Itemized Statement of Errors (“Opposition”) (ECF No. 13) at 2-3, however, a diagnosis alone does not establish a severe impairment, see, e.g., Brown v. Colvin, No. 2:13-cv-473-JHR, 2015 WL 58396, at *2 (D. Me. Jan. 5, 2015), and the plaintiff identifies no respect in which her back impairments collectively imposed greater limitations than those found by the ALJ, see Statement of Errors at 7.

         In any event, as the commissioner argues in the alternative, see Opposition at 2-3, “an error at Step 2 is uniformly considered harmless, and thus not to require remand, unless the plaintiff can demonstrate how the error would necessarily change the outcome of the plaintiff's claim[, ]” Bolduc v. Astrue, Civil No. 09-220-B-W, 2010 WL 276280, at *4 n.3 (D. Me. Jan. 19, 2010). For the reasons discussed below, the plaintiff fails to demonstrate harmful error in the ALJ's determination that her back impairment(s) did not meet or equal Listing 1.04, or her assessment of the plaintiff's physical RFC.

         B. Failure To Find Back Impairments Equaled Listing 1.04

         To meet Listing 1.04, a claimant must show that he or she has a disorder of the spine with:

A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine);
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours;
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate effectively[.]

         Listing 1.04.

         In finding that the plaintiff had no impairment(s) that met or equaled the criteria of any listing, the ALJ explained, in relevant part:

I considered the [plaintiff]'s degenerative disc disease under medical [L]isting 1.04. [She] does not meet or equal [L]isting 1.04 because she does not have the requisite motor and reflex or sensory loss required for [L]isting 1.04A; does not have spinal arachnoiditis required for [L]isting 1.04B and does not have ...

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