United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
C. NIVISON U.S. MAGISTRATE JUDGE.
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).
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
Commissioner's final decision is the November 28, 2017
decision of the Administrative Law Judge. (ALJ Decision, ECF
No. 9-2.) 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,
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
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).
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.
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.
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).
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.”)).