United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
C. Nivison, U.S. Magistrate Judge.
Plaintiff Maureen N.'s application for disability
insurance benefits under Title II and supplemental security
income benefits under Title XVI of the Social Security Act,
Defendant, the Social Security Administration Commissioner,
found that Plaintiff has severe impairments, but retains the
functional capacity to perform substantial gainful activity.
Defendant, therefore, denied Plaintiff's request for
disability benefits. Plaintiff filed this action to obtain
judicial review of Defendant's final administrative
decision pursuant to 42 U.S.C. § 405(g).
a review of the record, and after consideration of the
parties' arguments, I recommend the Court vacate the
Commissioner's final decision is the July 15, 2016,
decision of the Administrative Law Judge. (ALJ Decision, ECF
No. 9-2, R. 27.) The ALJ's decision tracks the familiar
five-step sequential evaluation process for analyzing social
security disability claims, 20 C.F.R. §§ 404.1520,
found that Plaintiff has severe, but non-listing-level
impairments consisting of degenerative disk disease of the
lumbar spine, status post-left, fifth (small) finger
fracture, organic mental disorder/borderline intellectual
function, affective disorder/depression, and anxiety-related
disorder/generalized anxiety. (ALJ Decision, R. 30 - 33.) The
ALJ determined that despite her impairments, Plaintiff has
the residual functional capacity (RFC) to perform light work,
provided the work consists of no more than simple, routine
tasks and does not require contact with the general public.
(R. 33 - 38.) Based on the stated RFC, Plaintiff's age
and other vocational factors, and the testimony of a
vocational expert, the ALJ found that Plaintiff can no longer
perform past relevant work involving medium exertion (home
care attendant), but can transition to other substantial
gainful activity, including the representative jobs of bench
assembler (DOT # 706.684-022), checker I (DOT # 222.687-010),
and dry cleaner (DOT # 589.685-038). (R. 38 - 39.) The ALJ
ultimately determined that Plaintiff was not under a
disability for the period between the date of alleged onset,
May 30, 2008, and the date of the ALJ's decision, July
25, 2016. (R. 40.)
must affirm the administrative decision provided the decision
is based on the correct legal standards and is supported by
substantial evidence, even if the record contains evidence
capable of supporting an alternative outcome.
Manso-Pizarro v. Sec'y of HHS, 76 F.3d 15, 16
(1st Cir. 1996) (per curiam); Rodriguez Pagan v.
Sec'y of HHS, 819 F.2d 1, 3 (1st Cir. 1987).
Substantial evidence is evidence that a reasonable mind might
accept as adequate to support a finding. Richardson v.
Perales, 402 U.S. 389, 401 (1971); Rodriguez v.
Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981).
“The ALJ's findings of fact are conclusive when
supported by substantial evidence, but they are not
conclusive when derived by ignoring evidence, misapplying the
law, or judging matters entrusted to experts.”
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).
argues that the ALJ's decision should be vacated and her
claims remanded for further proceedings because (a) the ALJ
failed to include tinnitus as one of Plaintiff's severe
impairments at step 2, (b) the ALJ disregarded a treating
source statement and an MRI report when assessing
Plaintiff's RFC, and (c) the ALJ failed to evaluate
properly the way Plaintiff's low IQ would impact
Plaintiff's ability to perform the jobs identified by the
vocational expert at step 5. (Statement of Errors, ECF No.
Step 2 Omission of Tinnitus
saw William Chasse, M.D., an otolaryngologist, in January,
2016, for an evaluation of tinnitus. Plaintiff described
hearing “a high pitch noise most of the time, ”
needing “to have people repeat themselves at times,
” and a pain rating of 0/10. (Ex. 50F, ECF No. 9-10, R.
1361.) Dr. Chasse suggested a treatment plan for an audiogram
following debridement of cerumen (wax) impaction. (R. 1363.)
The record lacks evidence of any follow-up treatment for the
hearing before the ALJ on June 2, 2016, Plaintiff did not
identify hearing difficulty as an issue. (R. 73, 83, 90 - 91,
ECF No. 9-2.) Nevertheless, Plaintiff argues the ALJ
committed reversible error because the regulations state that
an adjudicator will “consider all evidence in your case
record, ” and because the jobs cited by the ALJ at step
5 are defined in the Dictionary of Occupational Titles as
imposing moderate or loud noise levels. (Statement of Errors
at 10, citing 20 C.F.R. § 404.1520(a)(3)(ii) and
Dictionary of Occupational Titles definitions.)
2 of the sequential evaluation process, a social security
disability claimant must establish the alleged conditions are
severe, but the burden is de minimis, and is designed merely
to screen groundless claims. McDonald v. Sec'y of
HHS, 795 F.2d 1118, 1123 - 24 (1st Cir. 1986). The ALJ
may find that an impairment or combination of impairments is
not severe when the medical evidence “establishes only
a slight abnormality or 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. at 1124 (quoting Social
Security Ruling 85- 28). In other words, an impairment is
severe if it has more than a minimal impact on the
claimant's ability to perform basic work activities on a
regular and continuing basis. Id.
omission of a severe impairment at step 2 does not
necessarily require the reversal of the administrative
decision. To justify remand, a plaintiff must provide medical
evidence regarding the limiting effects of the impairments on
which the step 2 challenge is based. LaBonte v.
Astrue, No. 2:09-cv-00058-GZS, 2010 WL 2024895, at *2
(D. Me. May 18, 2010). Failure to do so not only undermines a
step 2 challenge, but renders harmless any supposed error.
Beaulieu v. Colvin, No. 1:14-CV-00335-DBH, 2015 WL
4276242, at *2 & n.5 (D. Me. July 14, 2015). In other
words, even if a plaintiff establishes that the ALJ erred at
step 2, remand is only appropriate if the plaintiff ...