Daniel P.O. v. Berryhill

          REPORT AND RECOMMENDED DECISION ^[1]

          JOHN H. RICH III UNITED STATES MAGISTRATE JUDGE

         This 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.^[2] 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 [1]-[9]. For the reasons that follow, I conclude that none of these points warrants remand.

         I have 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.

         I, therefore, recommend that the court affirm the commissioner's decision.

         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).

         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); 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); 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 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.

         Work is 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).

         While a 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. § 404.1574(c)(2).

         I. Discussion

         A. Plaintiff's Points

         1. Incomplete List of Diagnoses

         The 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 [1]. He supplies a “complete list” of more than 50 allegedly disabling diagnoses. See id. at [2]-[5]. For several reasons, he falls short of demonstrating that remand is warranted on this basis.

         First, 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 [4]-[5]. 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 [2]-[5]; 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.”).

         Remand, accordingly, is unwarranted on the basis of this point of error.

         2. Asserted Badgering

         The 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 [5]-[6] (citing Record at 43, 49-50).

         As the 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 activities[.]”).

         The ALJ 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.

         Remand, accordingly, is unwarranted on the basis of this point of error.

         3. Asserted Difficulty Hearing, Understanding Plaintiff

         The 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 [6]. He adds that the ALJ may have chosen not to credit his testimony because of a language barrier. See id.

         The 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 [6], 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; ...