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Lindsay S. v. Berryhill

United States District Court, D. Maine

March 31, 2019

LINDSAY S., Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          MEMORANDUM DECISION [1]

          John H. Rich III United States Magistrate Judge

This Social Security Disability (“SSD”) and Supplemental Security Income (“SSI”) appeal raises the question of whether the administrative law judge (“ALJ”) supportably found the plaintiff capable of performing work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that the ALJ erred in failing to (i) deem her back impairment, in combination with her obesity, severe, (ii) consider exertional and environmental limitations resulting from the conditions she deemed nonsevere, and (iii) properly assess her mental impairments. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 11) at 5-18. I conclude that the ALJ erred in deeming the plaintiff's back impairment, in combination with her obesity, nonsevere, and that the error was not harmless. Accordingly, I vacate the commissioner's decision and remand this case for further proceedings consistent herewith. I need not and do not reach the plaintiff's remaining points of error.

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. §§ 404.1520, 416.920; 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 met the insured status requirements of the Social Security Act through December 31, 2016, Finding 1, Record at 12; that she had the severe impairments of depressive/mood, bipolar, anxiety, post-traumatic stress, and polysubstance abuse disorders, Finding 3, id.; that she had the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels with the nonexertional limitations that she could perform simple, routine tasks, could not work with the general public, and was able to adapt to simple, routine changes in the work environment, Finding 5, id. at 16-17; that, considering her age (26 years old, defined as a younger individual, on her alleged disability onset date, February 15, 2011, 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 she could perform, Findings 7-10, id. at 24; and that she, therefore, had not been disabled from her alleged onset date of disability, February 15, 2011, through the date of the decision, February 8, 2017, Finding 11, id. at 25. 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, 416.1481; 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), 1383(c)(3); 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 her past relevant work. 20 C.F.R. §§ 404.1520(g), 416.920(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 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

         In finding that the plaintiff had neither a severe physical impairment nor any physical functional limitations, the ALJ gave great weight to the opinions of two agency nonexamining consultants whose reports predated the plaintiff's development of a back impairment, Archibald Green, D.O., and Donald Trumbull, M.D. Record at 19; see also id. at 83 (report of Dr. Green dated January 9, 2015), 114-15 (report of Dr. Trumbull dated May 29, 2015), 806 (December 27, 2015, notation by Jeffrey A. Hamm, P.A., that lumbar-spine MRI performed following plaintiff's “complaints of back pain and proximal right leg pain” was “concerning for epidural abscess”). The ALJ explained that, in her view, the records unseen by those experts did not “describe significant worsening[, ]” and their opinions were “consistent with the normal findings on physical examinations and diagnostic testing” that she had earlier discussed. Id. at 19.

         The plaintiff contends that the unseen records did describe significant worsening, undermining the ALJ's reliance on the “stale” Green and Trumbull opinions. See Statement of Errors at 7-8. She asserts that, “[i]n the absence of any reliable opinion evidence, the ALJ necessarily, and impermissibly, relied on her lay assessment” of evidence pertaining to her back impairment to conclude that she had no exertional limitations. Id. at 9.

         “This court has noted that there is no bright-line test of when reliance on a nonexamining expert consultant is permissible in determining a claimant's physical or mental RFC, although factors to be considered include the completeness of the consultant's review of the full record and whether portions of the record unseen by the consultant reflect material change or are merely cumulative or consistent with the preexisting record and/or contain evidence supportably dismissed or minimized by the [ALJ].” LaFlamme v. Colvin, No. 1:14-cv-57-DBH, 2015 WL 519422, at *8 (D. Me. Feb. 6, 2015) (citation and internal punctuation omitted).

         As the plaintiff suggests, see Statement of Errors at 8, the evidence bearing on her alleged back pain was not cumulative of the preexisting record: it revealed the development of a new back impairment.

         At oral argument, counsel for the commissioner acknowledged that the Green and Trumbull opinions do not constitute substantial evidence with respect to the plaintiff's back impairment, which postdated their review. However, she contended that, rather than construing raw medical evidence, the ALJ made a common-sense judgment that the plaintiff's back impairment was nonsevere.

         The First Circuit has held that, “since bare medical findings are unintelligible to a lay person in terms of [RFC], the ALJ is not qualified to assess [RFC] based on a bare medical record.” Gordils v. Sec'y of Health & Human Servs., 921 F.2d 327, 329 (1st Cir. 1990). “This principle does not mean, however, that the [commissioner] is precluded from rendering common-sense judgments about functional capacity based on medical findings, as long as [she] does not overstep the bounds of a lay person's competence and render a medical judgment.” Id.

         In Gordils, the First Circuit found that substantial evidence supported the commissioner's finding that a claimant could perform sedentary work when an agency nonexamining consultant deemed the claimant capable of performing light work, and an examining consultant found “no objective evidence of a disabling back impairment beyond the observation that claimant likely ha[d] a ‘weaker back.'” Id. at 328-29. The First Circuit cautioned, however, that it “would be troubled by the same conclusion as to the more physically demanding light work.” Id. See also, e.g., Manso-Pizarro, 76 F.3d at 19 (remand warranted when, even if court “were to conclude that substantial evidence documented no more than mild physical impairments with relatively insignificant ...


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