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 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 August 23, 2017
decision of the Administrative Law Judge. (ALJ Decision, ECF
No. 6-2, R. 19.) The ALJ's decision tracks the familiar
five-step sequential evaluation process for analyzing social
security disability claims, 20 C.F.R. §§ 404.1520,
to the instant appeal, the ALJ found that Plaintiff has
severe, but non-listing-level impairment of both shoulder
joints. (R. 21-22, ¶¶ 3, 4.) The ALJ concluded that
Plaintiff does not have the ability to perform the
weight-bearing demands of light- or greater-exertion work,
but she has the residual functional capacity (RFC) to perform
sedentary work, including work that involves frequent
pushing, pulling, and overhead reaching with both upper
extremities. (R. 24, ¶ 5.) Given this physical RFC,
Plaintiff's vocational background (Plaintiff was age 42
on the date last insured and has a high school equivalency
diploma), and the testimony of a vocational expert, the ALJ
found that Plaintiff can perform substantial gainful
activity, including the representative jobs of quality
control, assembly, and electronics worker. (R. 28-29,
¶¶ 7-9.) Defendant, therefore, denied
Plaintiff's claim for disability benefits. (R. 1, 30.)
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).
contends the ALJ erred when he (1) did not find an additional
severe impairment related to Plaintiff's left hand, (2)
failed to find that Plaintiff's shoulder impairment
equals a listing, (3) gave greater weight to the opinions of
consultants rather than to the opinions of treatment
providers in formulating Plaintiff's RFC, and (4) failed
to give appropriate weight to Plaintiff's subjective
report of symptoms.
Hand Impairment - Step 2
2 of the sequential evaluation process, a claimant must
demonstrate the existence of 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 merely 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. However, if error
occurred at step 2, remand is only appropriate when the
claimant can demonstrate that an omitted impairment imposes 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. 09-CV-220-B-W,
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.”)).
to Plaintiff, beginning in 2007, Plaintiff has experienced
chronic neuropathic pain in her left wrist and hand secondary
to placement of an IV line in her hand. (Statement of Errors
at 6, 16, citing Ex. 12F, R. 624-26, and Ex. 8F, R. 484; see
also Ex. 11F, R. 600-602.) On April 14, 2017, Peter
Esponnette, M.D., performed an independent medical
examination at the request of Plaintiff's counsel. Dr.
Esponnette opined that Plaintiff cannot perform “firm
gripping” with her left hand. (R. 484.)
did not give weight to Dr. Esponnette's opinion to the
extent it was inconsistent with the ALJ's RFC finding.
(R. 26-27.) The ALJ did not credit Dr. Esponnette's
finding regarding Plaintiff's grip strength, noting Dr.
Esponnette's finding of 5/5 wrist and finger strength.
(R. 27; see also R. 480.)
the medical evidence of record, the ALJ's assessment of
Dr. Esponnette's opinion was not error. First, the
ALJ's observation regarding the internal inconsistency in
Dr. Esponnette's findings regarding Plaintiff's hand
strength is reasonable. Perhaps more importantly, there is no
persuasive evidence to suggest that Dr. Esponnette's grip
strength observation/finding had more than a minimal effect
on Plaintiff's general ability to work or her ability to
perform the sedentary jobs ...