United States District Court, D. Maine
REPORT AND RECOMMENDED
DECISION[1]
John
H. Rich III United States Magistrate Judge
This Child's Disability Benefits (“CDB”) 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 the ALJ erred in determining her physical residual
functional capacity (“RFC”) when he (i) found
that she had no medically determinable impairments of
migraines and vertigo, (ii) relied on the opinion of a
layperson “Single Decision Maker” rather than
that of a medical expert, and (iii) erred in evaluating her
subjective complaints regarding her symptoms and limitations.
See Itemized Statement of Specific Errors
(“Statement of Errors”) (ECF No. 13) at
5-12.[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, 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, since
attaining age 18, the plaintiff had the severe impairments of
attention deficit hyperactivity disorder, learning
disability, depressive disorder, and general anxiety
disorder, Findings 3, 7-8, Record at 25, 38; that, since
attaining age 18, she had the RFC to perform a full range of
work at all exertional levels, but with the nonexertional
limitations that she should not be exposed to unprotected
heights and should not climb ladders, ropes, or scaffolding,
should not be required to use math skills above the
third-grade level, was limited to simple, routine,
competitive, repetitive tasks on a sustained basis over a
normal eight-hour workday, in a stable work environment, with
no more than simple decision making, should not have close
interpersonal interaction with co-workers or supervisors,
should not interact with the public, and should not have to
be in crowded areas, Finding 10, id. at 39; that,
considering her current age (a younger individual age 18-44),
education (high school education in a special education
program), work experience (none), and RFC, there were jobs
existing in significant numbers in the national economy that
she could perform, Findings 12-15, id. at 41; and
that she, therefore, had not been disabled from her alleged
onset date of disability, January 1, 2002, through the date
of the decision, April 12, 2016, Finding 16, id. at
42-43. 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 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);
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 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.
Consideration of Alleged Migraines and Vertigo
The
plaintiff first argues that the ALJ erred in failing to find
at Step 2 that her migraine headaches and vertigo were
medically determinable impairments. See Statement of
Errors at 5-7. I find no error. The ALJ explained, in
relevant part:
The [plaintiff] has alleged having migraine headaches;
however, [she] never presented to the emergency room for such
headaches, [she] saw a neurologist only once for this
complaint and did not follow through with his
recommendations, and there is no evidence of any testing
abnormalities to reflect such a diagnosis. The
[plaintiff]'s neurologic examination was negative. This
is not a medically determinable impairment. No. acceptable
medical source has indic[]ated any resultant work related
limitations from headaches such as the need for frequent
absences or unscheduled work breaks. The [plaintiff] alleged
vertigo; however, when assessed for this by a neurologist, he
noted that she had a negative Dix-Hallpike maneuver,
considered indicative of true vertigo. The [plaintiff] never
underwent testing or assessment by an ENT, and did not
undergo the objective testing which could have diagnosed
vertigo. It was considered that the [plaintiff]'s
complaints were associated with allergies, and she was
instructed to take Zyrtec. None of the [plaintiff]'s
treating physicians imposed any restrictions on her
activities as a result of this complaint. This is not a
medically determinable impairment.
Record at 25-26.[3]
The
plaintiff contends that, in so finding, the ALJ misconstrued
the July 11, 2014, note of neurologist Peter F. Morrison,
M.D., who listed both vertigo and migraine headaches under
the heading “Assessments[, ]” indicating that he
“believed based upon his examination and evaluation
that [she] had a migraine headache impairment and an
associated vertigo impairment.” Statement of Errors at
6-7 (citing Record at 657-58).
“No
symptom or combination of symptoms can be the basis for a
finding of disability, no matter how genuine the
individual's complaints may appear to be, unless there
are medical signs and laboratory findings demonstrating the
existence of a medically determinable physical or mental
impairment.” Social Security Ruling 96-4p, reprinted in
West's Social Security Reporting Service,
Rulings 1983-1991 (Supp. 2017) (“SSR 96-4p”), at
118.
And,
even though the burden is de minimis, it is
nevertheless “the plaintiff's burden to produce
sufficient evidence to allow the commissioner to reach a
conclusion at Step 2; the absence of evidence provides
support for a conclusion adverse to the plaintiff at this
point in the sequential evaluation process.” Coffin
v. Astrue, Civil No. 09-487-P-S, 2010 WL 3952865, at *2
(D. Me. Oct. 6, 2010) (rec. dec., aff'd Oct. 27,
2010).
As the
commissioner argues, see Defendant's Opposition
to Plaintiff's Statement of Errors
(“Opposition”) (ECF No. 17) at 3-6, the ALJ
supportably concluded that the plaintiff did not have
medically determinable impairments of either vertigo or
migraine headaches because the evidence of record, ...