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Roxauna M. v. Berryhill

United States District Court, D. Maine

July 20, 2018

ROXAUNA M., Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          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, ...


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