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Robert L. v. Berryhill

United States District Court, D. Maine

July 27, 2018

ROBERT L., 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 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 bases that the ALJ erroneously deemed his back and Mollaret's meningitis conditions nonsevere, underestimated the extent of his mental limitations, and rejected the opinions of two treating sources out of hand, resulting in an allegedly flawed residual functional capacity (“RFC”) determination. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 13) at 4-15. He asserts that these errors, in turn, undermined the ALJ's reliance on the testimony of a vocational expert, predicated on the faulty RFC determination. See id. at 16-17. I find no 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 the plaintiff met the insured status requirements of the Social Security Act through June 30, 2013, Finding 1, Record at 17; that he had the severe impairments of an affective disorder and an anxiety disorder, Finding 3, id.; that he had the RFC to perform a full range of work at all exertional levels, but with the following nonexertional limitations: he was limited to performing simple, routine tasks, could manage frequent contact with coworkers but no contact with the general public, and could make simple work-related decisions, Finding 5, id. at 21; that, considering his age (51 years old, defined as an individual closely approaching advanced age, on his alleged disability onset date, April 9, 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 he could perform, Findings 7-10, id. at 24; and that he, therefore, had not been disabled from April 9, 2013, through the date of the decision, June 1, 2016, Finding 11, id. at 25. 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 his 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. The ALJ's Step 2 Determination

         The plaintiff first argues that the ALJ erred in deeming his back impairment and Mollaret's meningitis nonsevere at Step 2. See Statement of Errors at 4-7. I find no error and, in any event, conclude that the plaintiff fails to demonstrate that any error was outcome-determinative. See, e.g., Bolduc v. Astrue, Civil No. 09-220-B-W, 2010 WL 276280, at *4 n.3 (D. Me. Jan. 19, 2010) (“an error at Step 2 is uniformly considered harmless, and thus not to require remand, unless the [claimant] can demonstrate how the error would necessarily change the outcome of [his or her] claim”).

         1. Back Impairment

         The ALJ explained that, although the plaintiff had complained of back pain, he found his back impairment nonsevere, citing a report of agency examining consultant David Axelman, M.D., that the plaintiff “ha[d] maintained normal gait, strength and sensation with negative straight-leg raise testing” and the opinions of agency nonexamining consultants J.H. Hall, M.D., and Stephanie Green, M.D., that he had no functional limitations as a result of his back condition. Record at 19-20; see also id. at 129-30 (Hall opinion dated November 18, 2013), 156-57 (Green opinion dated April 30, 2014), 448-51 (Axelman report dated November 13, 2013).

         The plaintiff argues that, to the contrary, the record supports a finding that, in the wake of a 1991 workplace accident in which he fell two stories, fracturing his back, he continues to suffer residual effects that have “far more than a minimal effect on his ability to work.” Statement of Errors at 4. He points to (i) evidence of back abnormalities on objective testing in 2008 and 2011, (ii) an assessment by treating physician David Hallbert, M.D., on February 12, 2014, of acute low back pain, followed by Dr. Hallbert's observations on March 17, 2014, of slow ambulation, abnormal motor strength, and limited range of motion, (iii) notations by other treating and examining physicians of gait disturbances, and (iv) his own testimony at hearing that he had difficulty handling a jug of milk and walking. See id. at 4-5.

         He contends that the error in failing to find a severe back impairment is not harmless because, “[h]ad the ALJ properly credited the evidence of a back impairment limiting [him] to sedentary work, ” he would have been deemed disabled pursuant to the so-called “Grid, ” Appendix 2 to Subpart P, 20 C.F.R. Part 404, as of his alleged disability onset date, and if the ALJ had found him limited to light work, he would have been deemed disabled pursuant to the Grid as of May 2, 2016, the date he turned 55. Id. at 6 (citing Grid §§ 201.04, 202.04). At oral argument, his counsel alternatively argued that, even if the ALJ did not err in finding his back impairment nonsevere, he erred in failing to include resulting limitations in his assessed RFC. See 20 C.F.R. §§ 404.1523(c), 416.923(c) (“[W]e will consider the combined effect of all of your impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity.”).

         That the plaintiff points to evidence supporting a finding of a severe back impairment does not carry the day. As the commissioner rejoins, see Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 22) at 3-5, the ALJ identified substantial evidence, in the form of the Axelman, Hall, and Green opinions, that the plaintiff's back impairment was nonsevere, see Record at 19-20. The plaintiff's argument, hence, amounts to an unavailing request that the court reweigh conflicting record evidence. See, e.g., Rodriguez, 647 F.2d at 222 (“The [commissioner] may (and, under [her] regulations, must) take medical evidence. But the resolution of conflicts in the evidence and the determination of the ultimate question of disability is for [her], not for the doctors or for the courts.”).

         In any event, the plaintiff fails to demonstrate that any error in assessing his back impairment was outcome-determinative. He assumes that, upon finding a severe back impairment, the ALJ would have deemed him limited to sedentary or light-level work, see Statement of Errors at 6, but points to no evidence that would have compelled such a conclusion. Nor does he identify any restrictions that should have been assessed upon a finding that he had a nonsevere back impairment. While, at oral argument, the plaintiff's counsel contended that the adoption of Dr. Hallbert's physical RFC opinion would have resulted in a finding of a limitation to sedentary work, I have concluded that the plaintiff's separate challenge to the ALJ's rejection of that opinion is unavailing, for the reasons discussed below.

         2. Mollaret's Meningitis

         The plaintiff concedes that, while his Mollaret's meningitis, first diagnosed in 1982, is a chronic condition with periodic painful flare-ups, he was asymptomatic during the period at issue. See Id. at 6-7. Nonetheless, he argues that the ALJ should have “considered it a severe condition because of the chronic nature of the disease and because of its immobilizing characteristics when it is symptomatic.” Id. at 7.

         This argument is without merit. Because, as the ALJ noted, there were “no medical records of any signs or symptoms attributed to” the plaintiff's Mollaret's meningitis, Record at 19, he properly found it nonsevere. In any event, even had the ALJ erred in so finding, the plaintiff fails to demonstrate that any specific limitations should have been assessed as a result of the condition.

         B. The ALJ's Mental RFC Assessment

         The plaintiff next argues that the ALJ erred in three respects in determining his mental RFC: in (i) deeming him capable of frequent contact with coworkers, (ii) leaving “an additional unresolved issue” regarding his ability to respond appropriately to coworkers and supervisors, and (iii) finding him capable of making simple work-related decisions. See Statement of Errors at 7-13. Again, I find no error.

         1. Frequent ...


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