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Maureen N. v. Social Security Administration Commissioner

United States District Court, D. Maine

August 8, 2018

MAUREEN N., Plaintiff


          John C. Nivison, U.S. Magistrate Judge.

         On 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).

         Following a review of the record, and after consideration of the parties' arguments, I recommend the Court vacate the administrative decision.

         The Administrative Findings

         The Commissioner's final decision is the July 15, 2016, decision of the Administrative Law Judge. (ALJ Decision, ECF No. 9-2, R. 27.)[1] The ALJ's decision tracks the familiar five-step sequential evaluation process for analyzing social security disability claims, 20 C.F.R. §§ 404.1520, 416.920.

         The ALJ 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.)

         Standard of Review

         A court 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).


         Plaintiff 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. 11.)

         A. Step 2 Omission of Tinnitus

         Plaintiff 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 condition.

         At 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.)

         At step 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.

         The 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 ...

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