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Julie R v. Social Security Administration Commissioner

United States District Court, D. Maine

April 24, 2019

JULIE R., Plaintiff



         On 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).

         Following a review of the record and after consideration of the parties' arguments, I recommend the Court affirm the administrative decision.

         The Administrative Findings

         The Commissioner's final decision is the December 27, 2017 decision of the Administrative Law Judge. (ALJ Decision, ECF No. 9-2.)[1] The ALJ's decision tracks the familiar five-step sequential evaluation process for analyzing social security disability claims, 20 C.F.R. § 404.1520.

         The ALJ found that Plaintiff has severe, but non-listing-level fibromyalgia, and no other severe impairment. (Id. ¶¶ 3, 4.) According to the ALJ, Plaintiff retains the residual functional capacity (RFC) to perform light-exertion work, except she is limited as to certain postures. (Id. ¶ 5.) The ALJ further determined that Plaintiff's RFC enables her to perform past relevant work as a reservations agent and, alternatively, other work existing in significant numbers, including the representative jobs of laundry folder, garment folder, and office helper. (Id. ¶¶ 5, 6.) The ALJ thus found Plaintiff not disabled during the relevant period. (Id. ¶ 7.)

         Standard of Review

         A court 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).


         Plaintiff argues the ALJ erred when she (A) failed to address and find the additional severe impairments of bilateral tendinitis, obesity, and PTSD; (B) failed to evaluate properly whether Plaintiff's bilateral tendinitis and fibromyalgia constitute a listing or reduce Plaintiff's RFC; (C) mischaracterized the reservations clerk job as past relevant work; (D) failed to call a medical expert to testify at the administrative hearing (allegedly judging matters entrusted to experts as a consequence); and (E) relied on an unsupportable RFC to conclude that Plaintiff could perform other substantial gainful activity.

         A. Step 2 - Omitted Impairments

         Plaintiff contends her RFC is reduced by bilateral tendinitis, obesity, and PTSD. Plaintiff more specifically argues the ALJ failed to address the bilateral tendinitis, which Plaintiff maintains is the reason she had to leave her employment.

         At step 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.

         At step 2, medical evidence is required to support a finding of severe impairment. 20 C.F.R. § 404.1521. See also Social Security Ruling 96-3p (“Symptoms, such as pain, fatigue, shortness of breath, weakness, or nervousness, will not be found to affect an individual's ability to do basic work activities unless the individual first establishes by objective medical evidence (i.e., signs and laboratory findings) that he or she has a medically determinable physical or mental impairment(s) and that the impairment(s) could reasonably be expected to produce the alleged symptom(s).”) (citation omitted). A diagnosis, standing alone, does not establish that the diagnosed impairment would have more than a minimal impact on the performance of work activity. Dowell v. Colvin, No. 2:13-cv-00246-JDL, 2014 WL 3784237, at *3 (D. Me. July 31, 2014). Moreover, even severe impairments may be rendered non-severe through the ameliorative influence of medication and other forms of treatment. Parsons v. Astrue, No. 1:08-cv-218-JAW, 2009 WL 166552, at *2 n.2 (Jan. 23, 2009), aff'd, 2009 WL 361193 (D. Me. Feb. 12, 2009).

         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. Socobasin v. Astrue, 882 F.Supp.2d 137, 142 (D. Me. 2012) (citing Bolduc v. Astrue, No. 1:09-cv-00220-JAW, 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.”)).

         1. Tendinitis

         The records generated as the result of Plaintiff's treatment with Windham Family Practice in July 2013 reflect a history of upper extremity pain associated with work activity in 2012 and continuing. Plaintiff expressed her intention to leave her work at a restaurant because work activities aggravated her symptoms. (Ex. 11F, R. 623.) A Tramadol prescription for pain management was continued. (R. 624.)

         In March 2015, Heather Chase, a nurse practitioner, noted the tendinitis and that Plaintiff would continue with physical therapy, “as great improvement has been appreciated;” she prescribed Gabapentin. (Ex. 11F, R. 585.) In May 2015, NP Chase again noted the tendinitis and prescribed prednisone. (R. 580.) In June 2015, NP Chase did not mention the tendinitis diagnosis, noted arthralgia of multiple sites and myalgia, and prescribed Indomethacin. (R. 571, 574-75.)

         In October 2015, Rita Paquin, M.D., considered Plaintiff's complaint of “pain all over body, ” noted “extensive lab testing which was all negative/normal, ” made “normal” findings on “inspection/palpation of joints, bones, and muscles, ” and assessed chronic pain, fibromyalgia, high risk medication use, and depression with anxiety. (R. 558.) ...

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