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