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Thomas P. v. Berryhill

United States District Court, D. Maine

February 8, 2019

THOMAS P., Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          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 September 30, 2014, his date last insured for SSD benefits, of performing work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that the ALJ erred in evaluating (i) his impairments of post-concussion syndrome, obesity, and carpal tunnel syndrome, (ii) certain medical opinions, and (iii) his subjective complaints. See Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 13) at 6-15. I find no harmful error and, accordingly, recommend that the court affirm the commissioner's decision.

         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 September 30, 2014, Finding 1, Record at 15; that, through his DLI, he had the severe impairment of degenerative disc disease, Finding 3, id.; that, through his DLI, he had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b), except that he could frequently push and pull at the light weight limits, could occasionally climb ramps and stairs, could never climb ladders, ropes, or scaffolds, could occasionally balance, stoop, kneel, crouch, and crawl, could frequently reach in all directions with the right upper extremity, could not work in extreme cold or with vibration, could not work at unprotected heights or with dangerous moving machinery, could not drive, and could not work with flashing or strobing lights, Finding 5, id. at 17-18; that, through his DLI, considering his age (49 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 7-10, id. at 22; and that he, therefore, had not been disabled from February 13, 2013, his alleged onset date of disability, through September 30, 2014, his DLI, Finding 11, id. at 23. 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. Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

         The statement of errors also implicates Step 2 of the sequential evaluation process. Although a claimant bears the burden of proof at Step 2, it is a de minimis burden, designed to do no more than screen out groundless claims. McDonald v. Sec'y of Health & Human Servs., 795 F.2d 1118, 1124 (1st Cir. 1986). When a claimant produces evidence of an impairment, the commissioner may make a determination of non-disability at Step 2 only when the medical evidence “establishes only a slight abnormality or [a] 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. (quoting Social Security Ruling 85-28).

         I. Discussion

         A. Evaluation of Impairments

         The plaintiff first complains that, at Step 2, the ALJ failed to properly evaluate his impairments of post-concussion syndrome, obesity, and carpal tunnel syndrome, as a result of which she failed to evaluate the combined impact of those impairments in determining his RFC at Step 4. See Statement of Errors at 6-9.

         As a general rule, a “[c]laimant is not entitled to [SSD] benefits unless he can demonstrate that his disability existed prior to the expiration of his insured status.” Cruz Rivera v. Sec'y of Health & Human Servs., 818 F.2d 96, 97 (1st Cir. 1986). “It is not sufficient for a claimant to establish that [his] impairment had its roots before the date that [his] insured status expired.” Moret Rivera v. Sec'y of Health & Human Servs., No. 93-1700, 1994 WL 107870, at *5 (1st Cir. Mar. 23, 1994). “Rather, the claimant must show that [his] impairment(s) reached a disabling level of severity by that date.” Id.

         1. Post-Concussion Syndrome

         The plaintiff asserts that the ALJ erred in assessing the impact of headaches and memory loss caused by post-concussion syndrome stemming from injuries he sustained in a motor vehicle accident on February 13, 2013, his alleged onset date of disability. See Statement of Errors at 6-7. He complains, in the main, that the ALJ erroneously deemed those conditions nonsevere on the basis that his post-concussion syndrome was not diagnosed until after his DLI. See id. He adds that the ALJ failed to assess the severity of his memory loss in accordance with the commissioner's special psychiatric review technique. See id.; 20 C.F.R. § 404.1520a(b)-(c) (if an ALJ finds a medically determinable mental impairment, she must determine its severity by rating the degree of a claimant's functional impairment in four broad areas).

         As a threshold matter, as the commissioner observes, see Defendant's Opposition to Plaintiff's Itemized Statement of Errors (“Opposition”) (ECF No. 14) at 2-4, the ALJ cited the timing of the plaintiff's diagnosis of post-concussion syndrome not as a basis for deeming that condition nonsevere but, rather, for finding that it was not a medically determinable impairment as of his DLI, see Record at 16. Therefore, by definition, the condition could not have been found severe. See, e.g., Social Security Ruling 96-7p, reprinted in West's Social Security Reporting Service, Rulings 1983-1991 (Supp. 2018) (“SSR 96-7p”), at 132 (“No symptom or combination of symptoms can be the basis for a finding of disability, no matter how genuine the individual's complaints may appear to be, unless there are medical signs and laboratory findings demonstrating the existence of a medically determinable physical or mental impairment(s) that could reasonably be expected to produce the symptoms.”); Dennett v. Astrue, Civil No. 08-97-B-W, 2008 WL 4876851, at *3 (D. Me. Nov. 11, 2008) (rec. dec., aff'd Dec. 4, 2008) (“An [ALJ] need consider the severity of a mental impairment only to the extent that a claimant has met his or her burden of demonstrating that a ‘medically determinable' mental impairment exists.”).[2]

         In any event, even assuming arguendo that the ALJ should have found the plaintiff's post-concussion syndrome a medically determinable impairment as of his DLI, she found, in the alternative, that the condition had “not created more than minimal work related limitations and is considered not severe.” Record at 16. As the commissioner argues, see Opposition at 3, the plaintiff has not shown otherwise.

         The ALJ found that the plaintiff neither complained of, nor was treated for, memory loss until after his DLI and that, while he alleged that he had suffered from headaches since his motor vehicle accident, he told providers by April 2013 that his headaches were improving and thereafter reported further improvement with different types of treatment. See Record at 15-16. At oral argument, the plaintiff's counsel acknowledged that the record evidence concerning the plaintiff's post-concussion syndrome for the period prior to his DLI is relatively sparse, consisting mainly of the plaintiff's subjective complaints of headaches. Nonetheless, he maintained that the ALJ erred in relying on the timing of his diagnosis, failing to identify any other injury or event that would have caused the impairment, and failing to make any findings as to the degree of limitation caused.

         Yet, a claimant bears the burden at Step 2 of establishing the severity of an impairment. See, e.g., Day v. Berryhill, No. 1:16-cv-00593-JAW, 2017 WL 5037454, at *3 (D. Me. Nov. 2, 2017) (rec. dec., aff'd Nov. 20, 2017). The plaintiff identifies no limitations that should have been assessed as a result of either the mental (memory loss) or physical (headaches) aspects of his post-concussion syndrome. See Statement of Errors at 6-7. To the extent that he relies on his diagnosis, 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 ...


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