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Gregory T. v. Berryhill

United States District Court, D. Maine

November 16, 2018

GREGORY T., Plaintiff
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant


          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 found that he had the ability to ambulate effectively, as a result of which his left leg impairments did not meet the criteria of Listing 1.02(A), Appendix 1 to 20 C.F.R. Part 404, Subpart P (the “Listings”), failed to consider his nonexertional impairments of an inability to balance and a slow pace of learning new information, and erroneously deemed him capable of working a full eight-hour day and 40-hour workweek. See Plaintiff's Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 15) at 3, 11, 15. I find no reversible error and, accordingly, recommend that the court affirm the commissioner's decision.

         The decision in question was issued following this court's remand of a prior decision of the commissioner for failure to address any of the nonexertional limitations identified by experts who assessed the plaintiff's physical residual functional capacity (“RFC”). See Record at 452, 564, 568-69. In the wake of that remand, the Appeals Council directed the ALJ to offer the plaintiff an opportunity for a new hearing, take any further action needed to complete the administrative record, and issue a new decision. See Id. at 573. The ALJ convened a hearing at which both the plaintiff and a vocational expert testified. See Id. at 452.

         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 March 30, 2020, Finding 1, Record at 455; that he had the severe impairments of unequal leg length (left leg shorter than right leg), left leg hemiparesis and hemiplegia, left hip deformity, asthma, borderline intellectual functioning, cognitive disorder, and learning disorder (including reading, written expression, and mathematics learning disorder), Finding 3, id.; that he had no impairment or combination of impairments that met or medically equaled the criteria of any of the Listings, Finding 4, id. at 456; that he had the RFC to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), except that he could never climb ladders, ropes, or scaffolds, could occasionally crawl, balance, stoop, crouch, or kneel, could occasionally climb ramps or stairs, could only occasionally perform foot control operations with his left lower extremity but could push no greater than 20 pounds when doing so, could be exposed to only occasional extreme cold or extreme heat, needed to avoid concentrated fumes, odors, dust, gases, poorly ventilated areas, or concentrated chemicals, needed to avoid hazards such as moving machinery on the work floor and unprotected heights, could not ambulate over irregular or sloping work surfaces or wet work surfaces, was limited to simple, unskilled work in a low-stress job, defined as occasional decision-making and occasional changes in the work setting, and could have only occasional interaction with the public, Finding 5, id. at 458-59; that, considering his age (five years old, defined as a younger individual, on his alleged disability onset date, July 1, 1993), [2] education (at least high school), work experience (transferability of job skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that he could perform, Findings 7-10, id. at 466-67; and that he, therefore, had not been disabled from July 1, 1993, through the date of the decision, October 17, 2016, Finding 11, id. at 467-68. The Appeals Council declined to assume jurisdiction of the case following remand, id. at 442-45, making the decision the final determination of the commissioner, 20 C.F.R. §§ 404.984(a), (b)(2), 416.1484(a), (b)(2); 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 3 of the sequential evaluation process, at which step a claimant bears the burden of proving that his impairment or combination of impairments meets or equals a listing. 20 C.F.R. §§ 404.1520(d), 416.920(d); Dudley v. Sec'y of Health & Human Servs., 816 F.2d 792, 793 (1st Cir. 1987). To meet a listing, the claimant's impairments must satisfy all criteria of that listing, including required objective medical findings. 20 C.F.R. §§ 404.1525(c)(3), 416.925(c)(3). To equal a listing, the claimant's impairments must be “at least equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R. §§ 404.1526(a), 416.926(a).

         I. Discussion

         A. Step 3: Listing 1.02(A)

         The plaintiff first contends that the ALJ erroneously found that he had the ability to ambulate effectively, as a result of which his left leg impairments did not meet or medically equal Listing 1.02(A). See Statement of Errors at 3-11. Listing 1.02(A) requires the following showing:

1.02 Major dysfunction of a joint(s) (due to any cause): Characterized by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s). With:
A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b[.]

         Listing 1.02(A). In turn, the phrase “inability to ambulate effectively” is defined as follows:

(1) Definition. Inability to ambulate effectively means an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity functioning (see 1.00J) to permit independent ambulation without the use of a handheld assistive device(s) that limits the functioning of both upper extremities. . . .
(2) To ambulate effectively, individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living. They must have the ability to travel without companion assistance to and from a place of employment or school. Therefore, examples of ineffective ambulation include, but are not limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. The ability to walk independently about one's home without the use of assistive devices does not, in and of itself, constitute effective ambulation.

Listing 1.00(B)(2)(b).

         The ALJ found that the plaintiff had not shown an inability to ambulate effectively, explaining:

In this case, the [plaintiff]'s left leg is shorter than [his] right leg and he utilizes a left leg brace and orthotic insert in his left shoe to try to compensate for this disparity. This results in a chronically antalgic gait on [his] left side, even with the use of these assistive devices. However, there is no indication from the record that the [plaintiff] needs to use any hand-held assistive devices when ambulating. In addition, while the [plaintiff]'s representative argues that the evidence clearly shows that [he] is incapable of walking a block at a reasonable pace on rough or uneven surfaces, the undersigned does not concur with this assessment. While the evidence of record does make numerous references to an antalgic gait, this by itself does not establish an inability to ambulate effectively, particularly considering the [plaintiff]'s activities of daily living. The [plaintiff] testified that he worked part-time at a gas station pumping gas for several years until 2014. While [he] did allege he took breaks when not assisting customers, the fact that [he] could perform this part-time work supports a finding that he did not suffer from an extreme limitation in his ability to walk. [His] part-time work as a flagger for the fire department provides further support for this assessment. While this work is only part-time, it involves directing traffic, setting up traffic cones, and assisting town firefighters as needed. Again, this work is inconsistent with an extreme limitation in the ability to walk. Finally, the [plaintiff] also ...

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