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Charity B. v. Social Security Administration Commissioner

United States District Court, D. Maine

January 16, 2019

CHARITY B., Plaintiff
v.
SOCIAL SECURITY ADMINISTRATION COMMISSIONER, Defendant

          REPORT AND RECOMMENDED DECISION

          JOHN C. NIVISON U.S. MAGISTRATE JUDGE.

         On Plaintiff'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 and remand the matter for further proceedings.

         The Administrative Findings

         The Commissioner's final decision is the November 28, 2017 decision of the Administrative Law Judge. (ALJ Decision, ECF No. 9-2.)[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, fibromyalgia. According to the ALJ, the record demonstrates that despite Plaintiff's fibromyalgia, Plaintiff has the residual functional capacity (RFC) to perform medium-exertion work involving simple routine tasks, subject to certain postural and environmental restrictions. Based on Plaintiff's RFC finding and the testimony of a vocational expert, at step 5, the ALJ determined that Plaintiff is able to engage in substantial gainful activity, and identified four jobs Plaintiff could perform, which jobs consisted of one medium-exertion job, two light-exertion jobs, and one sedentary job. Given the step 5 finding, the ALJ found Plaintiff was not disabled for the period commencing with Plaintiff's alleged onset date and ending on the date of the decision.

         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).

         Discussion

         Plaintiff maintains the ALJ's decision is erroneous because (1) the ALJ failed to find the additional severe impairments of chronic fatigue syndrome and Lyme disease; (2) the ALJ improperly weighed the opinions of a non-examining consulting physician and Plaintiff's treating physicians; (3) the ALJ did not properly assess the testimony of a consulting psychiatrist and the opinion of a mental health provider; and (4) the ALJ relied in part on a nonexistent sedentary job to support her step 5 finding.

         At step 2 of the sequential evaluation process, a claimant must demonstrate that he or she has impairments that are “severe” from a vocational perspective, and that the impairments meet the durational requirement of the Social Security Act. 20 C.F.R. § 416.920(a)(4)(ii). The step 2 requirement of “severe” impairment imposes a de minimis burden, designed to screen groundless claims. McDonald v. Sec'y of HHS, 795 F.2d 1118, 1123 (1st Cir. 1986). 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.

         At step 2, medical evidence is required to support a finding of severe impairment. 20 C.F.R. § 404.1521. See also Social Security Ruling 96-3p (“Symptoms, such as pain, fatigue, shortness of breath, weakness, or nervousness, will not be found to affect an individual's ability to do basic work activities unless the individual first establishes by objective medical evidence (i.e., signs and laboratory findings) that he or she has a medically determinable physical or mental impairment(s) and that the impairment(s) could reasonably be expected to produce the alleged symptom(s).”) (citation omitted). A diagnosis, standing alone, does not establish that the diagnosed impairment would have more than a minimal impact on the performance of work activity. Dowell v. Colvin, No. 2:13-cv-00246-JDL, 2014 WL 3784237, at *3 (D. Me. July 31, 2014). Moreover, even severe impairments may be rendered non-severe through the ameliorative influence of medication and other forms of treatment. Parsons v. Astrue, No. 1:08-cv-218-JAW, 2009 WL 166552, at *2 n.2 (Jan. 23, 2009), aff'd, 2009 WL 361193 (D. Me. Feb. 12, 2009).

         If an error occurred at step 2, remand is only appropriate when the claimant can demonstrate that an omitted impairment results in a restriction beyond the physical and mental limitations recognized in the Commissioner's RFC finding, and that the additional restriction is material to the ALJ's “not disabled” finding at step 4 or step 5. Socobasin v. Astrue, 882 F.Supp.2d 137, 142 (D. Me. 2012) (citing Bolduc v. Astrue, No. 1:09-cv- 220-JAW, 2010 WL 276280, at *4 n. 3 (D. Me. Jan. 19, 2010) (“[A]n error at Step 2 is uniformly considered harmless, and thus not to require remand, unless the plaintiff can demonstrate how the error would necessarily change the outcome of the plaintiff's claim.”)).

         A. Chronic ...


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