United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
H. RICH III UNITED STATES MAGISTRATE JUDGE
Social Security Disability (“SSD”) appeal raises
the question of whether the administrative law judge
(“ALJ”) supportably found the plaintiff capable,
as of December 31, 2012, his date last insured for SSD
benefits, of performing work existing in significant numbers
in the national economy. The pro se plaintiff seeks
remand on the bases that the ALJ (i) ignored a number of
diagnoses that he claims contributed to his disability, (ii)
badgered him at hearing, (iii) apparently did not hear or
understand some of his testimony and possibly discredited
some of it due to a language barrier, (iv) relied on the
testimony of a vocational expert (“VE”) that was
predicated on a flawed recitation of his limitations, (v)
both failed to consider the combined effect of his
impairments and disregarded his wife's written testimony,
(vi) denied his claim solely because of insufficient medical
records, and (vii) was confused as to his work history.
See Itemized Statement of Specific Errors and
Objection to Defendant's Prayer for Dismissal
(“Statement of Errors”) (ECF No. 15-1), attached
to Fact Sheet for Social Security Appeals: Plaintiff (ECF No.
15), at -. For the reasons that follow, I conclude that
none of these points warrants remand.
also considered whether, as the commissioner argues,
see Opposition at 6-9, the ALJ's residual
functional capacity (“RFC”) determination is
supported by substantial evidence despite her rejection of
the sole expert opinion of record bearing on his physical
impairments, that of agency nonexamining consultant Mary
Lanette Rees, M.D., and her assignment of only some weight to
the sole expert opinions of record bearing on his mental
impairments, those of agency nonexamining consultants Leigh
Haskell, Ph.D., and Mary A. Burkhart, Ph.D., see
Record at 18, 24. I conclude that it is.
therefore, recommend that the court affirm the
plaintiff alleged disability beginning on August 1, 2007.
See Id. at 14. Pursuant to the commissioner's
sequential evaluation process, 20 C.F.R. § 404.1520;
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's date last insured
(“DLI”) for SSD benefits was December 31, 2012,
Finding 1, Record at 16; that he engaged in substantial
gainful activity (“SGA”) during the period from
January 2010 through December 2010, Finding 2, id.;
that, accordingly, the remaining findings addressed the
periods during which he did not engage in SGA, Finding 3,
id. at 17; that, through his DLI, he had the severe
impairments, in combination, of obesity, diabetes mellitus,
obstructive sleep apnea, hypertension, asthma, neuropathy,
atrial fibrillation, degenerative disc disease of the lumbar
spine, cervicalgia, and arthralgias of the hips and knees,
Finding 4, id. at 17; that, through his DLI, he had
the RFC to perform sedentary work as defined in 20 C.F.R.
§ 404.1567(a), except that he could not stand or walk
for longer than 15 minutes at a time, could never walk or
stand on uneven or sloping surfaces, could not kneel, crawl,
or climb stairs/ladders/ropes/scaffolds, could occasionally
climb ramps, stoop, balance, and crouch, could not work in
temperature extremes, and could not do work requiring
overhead reaching, Finding 6, id. at 21; that,
through his DLI, considering his age (48 years old, defined
as a younger individual, on his DLI), education (at least
high school), work experience (transferability of skills
immaterial), and RFC, there were jobs existing in significant
numbers in the national economy that he could perform,
Findings 8-11, id. at 25; and that he, therefore,
had not been disabled from August 1, 2007, his alleged onset
date of disability, through December 31, 2012, his DLI,
Finding 12, id. at 26. The Appeals Council declined
to review the decision, id. at 1-3, making the
decision the final determination of the commissioner, 20
C.F.R. § 404.981; Dupuis v. Sec'y of Health
& Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).
standard of review of the commissioner's decision is
whether the determination made is supported by substantial
evidence. 42 U.S.C. § 405(g); 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).
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); 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).
statement of errors also implicates Step 1 of the sequential
evaluation process. At Step 1, the claimant bears the burden
of rebutting the presumption that he engaged in SGA based on
his earnings. Bell v. Comm'r of Soc. Sec., 105
F.3d 244, 246 (6th Cir. 1996); see also, e.g.,
Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir.
2005); Gallant v. Astrue, Civil No. 09-357-P-S, 2010
WL 2927263, at *1 (D. Me. July 20, 2010) (rec. dec.,
aff'd Aug. 10, 2010). At Step 1, “if the
applicant is engaged in [SGA], the application is
denied[.]” Purdy v. Berryhill, 887 F.3d 7, 10
(1st Cir. 2018) (citation and internal quotation marks
omitted); see also, e.g., 20 C.F.R. § 404.1571.
considered “substantial” if it “involves
doing significant physical or mental activities.” 20
C.F.R. § 404.1572(a). “[W]ork may be substantial
even if it is done on a part-time basis or if [a claimant]
do[es] less, get[s] paid less, or [has] less responsibility
than when [he or she] worked before.” Id.
“Work activity is gainful if it is the kind of work
usually done for pay or profit, whether or not a profit is
realized.” 20 C.F.R. § 404.1572(b).
claimant's earnings are “[t]he primary
consideration in determining whether particular work
constituted [SGA][, ]” Knudsen v. Colvin, No.
2:14-cv-155-JHR, 2015 WL 1505689, at *9 (D. Me. Apr. 1,
2015), “earnings from an unsuccessful work attempt
[UWA] will not show that [a claimant is] able to do [SGA][,
]” 20 C.F.R. 404.1574(a)(1). However, work lasting six
months or less constitutes a UWA only if, (i) prior to the
UWA, there is “a significant break in the continuity of
[the claimant's] work[, ]” meaning that the
claimant was out of work for at least 30 consecutive days or
was forced because of his or her impairment to change to
another type of work or another employer, and (ii) the
claimant “stopped working or . . . reduced [his or her]
work and earnings below the [SGA] earnings level because of
[his or her] impairment or because of the removal of special
conditions” that took the impairment into account and
“permitted [the claimant] to work.” Id.
Incomplete List of Diagnoses
plaintiff first complains that the ALJ erroneously referred
to only nine diagnoses as the basis for his claim of
disability. See Statement of Errors at . He
supplies a “complete list” of more than 50
allegedly disabling diagnoses. See id. at -.
For several reasons, he falls short of demonstrating that
remand is warranted on this basis.
the ALJ considered more than nine diagnoses. She found that
the plaintiff had 10 severe physical impairments, five
nonsevere medically determinable physical impairments, and
three nonsevere medically determinable mental impairments.
See Record at 17-18. Second, the plaintiff includes
several diagnoses made in 2016, which postdated his DLI by
several years and, hence, have no apparent bearing on his
condition as of the relevant time. See Statement of
Errors at -. Third, and most importantly, a diagnosis,
standing alone, does not establish the severity of an
impairment or its resulting limitations. See, e.g.,
Dowell v. Colvin, No. 2:13-cv-246-JDL, 2014 WL 3784237,
at *3 (D. Me. July 31, 2014). The plaintiff does not explain
what limitations, if any, were omitted as a result of the
ALJ's failure to consider additional diagnoses.
See Statement of Errors at -; Shinseki v.
Sanders, 556 U.S. 396, 409 (2009) (“[T]he burden
of showing that an error is harmful normally falls upon the
party attacking the agency's determination.”).
accordingly, is unwarranted on the basis of this point of
plaintiff next asserts that the ALJ unethically badgered him
based on his poor memory, which he contends is one of his
disabling diagnoses, and his disability generally, when she
pressed him as to why he could not remember details of past
work and what he did to fill his time once he stopped
working. See Statement of Errors at - (citing
Record at 43, 49-50).
commissioner rejoins, see Opposition at 3-5, the ALJ
reasonably inquired about these relevant subject matters,
see, e.g., 20 C.F.R. § 404.1512(a), (a)(iv)-(v)
(“In general, you have to prove to us that you are
blind or disabled. You must inform us about or submit all
evidence known to you that relates to whether or not you are
blind or disabled. . . . If we ask you, you must inform us
about . . . [y]our work experience . . . [and] [y]our daily
activities both before and after the date you say that you
became disabled[.]”) (citation omitted); Social
Security Ruling 96-8p, reprinted in West's Social
Security Reporting Service Rulings 1983-1991 (Supp.
2018) (“SSR 96-8p”), at 146 (“The RFC
assessment must be based on all of the relevant evidence in
the case record, such as . . . [r]eports of daily
also reasonably inquired why the plaintiff could not remember
details about his work and earnings in 2010 and 2007, seven
and 10 years before the hearing, respectively. See
Record at 43 (“[T]hat's not so long ago that you
shouldn't remember it.”), 50 (“Why don't
you have a memory?”). Indeed, as the commissioner
notes, see Opposition at 3-4, this provided the
plaintiff, who had chosen to proceed without a representative
at hearing, see Record at 36, an opportunity to
explain his difficulty remembering important facts and
events. In her decision, the ALJ considered the
plaintiff's memory difficulties but found that the record
contained no mention of such difficulties prior to his DLI
and that he had only a mild limitation in understanding,
remembering, or applying information. See id. at 18.
accordingly, is unwarranted on the basis of this point of
Asserted Difficulty Hearing, Understanding Plaintiff
plaintiff next argues that the hearing transcript contains
“an extensive use of” dashes and indicates that
he was inaudible several times during his testimony, raising
concern that the ALJ did not hear and/or understand some of
it. See Statement of Errors at . He adds that the
ALJ may have chosen not to credit his testimony because of a
language barrier. See id.
incompleteness of a transcript warrants remand only when a
claimant demonstrates that the omission is prejudicial or
impedes the process of judicial review. See, e.g., Barnes
v. Barnhart, 251 F.Supp.2d 973, 974 (D. Me. 2003). The
plaintiff does not attempt to make this showing, see
Statement of Errors at , nor is it apparent that the
omissions rise to that level. As the commissioner points out,
see Opposition at 5, the transcriptionist appears to
have used dashes to reflect the interruption of one speaker
by another or a speaker's own pause, see, e.g.,
Record at 34-36. The transcriptionist did indicate in seven
places that the plaintiff's testimony was inaudible;