United States District Court, D. Maine
JEREMY J. S., Plaintiff
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant
REPORT AND RECOMMENDED DECISION
H. Rich III, United States Magistrate Judge
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 (i) failed to find his hereditary sensory axonal
neuropathy a severe impairment, (ii) formulated a residual
functional capacity (“RFC”) unsupported by
substantial evidence, and (iii) erroneously relied upon
faulty vocational expert (“VE”) testimony.
See Statement of Specific Errors (“Statement
of Errors”) (ECF No. 13) at 2-17. I find no reversible
error and, accordingly, recommend that the court affirm the
to the commissioner's sequential evaluation process, 20
C.F.R. § 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 had the
severe impairments of left knee pain, personality disorder,
depressive disorder, and anxiety disorder, Finding 2, Record
at 15; that he had the RFC to perform light work as defined
in 20 C.F.R. § 416.967(b), except that he was limited to
occasional climbing of ramps, stairs, ladders, ropes, and
scaffolds, occasional balancing, stooping, kneeling,
crouching, and crawling, should avoid moderate exposure to
extreme cold, humidity, dampness, and respiratory irritants
such as fumes, odors, dusts, gases, and poorly ventilated
areas, should avoid unprotected heights or machinery with
external moving parts, and could carry out simple tasks in
two-hour periods over the course of a normal workday and
workweek, adapt to simple changes, and have brief and
superficial interaction with co-workers and supervisors, but
not with the general public, Finding 4, id. at 18;
that, considering his age (39 years old, defined as a younger
individual, on the date his application was filed, April 28,
2014), 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 6-9, id. at 23-24;
and that he, therefore, had not been disabled from April 28,
2014, through the date of the decision, March 16, 2017,
Finding 10, id. at 24-25. 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. § 416.1481; Dupuis v. Sec'y of Health
& Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).
standard of review of the commissioner's decision is
whether the determination made is supported by substantial
evidence. 42 U.S.C. § 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).
statement of errors 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).
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. § 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).
Step 2 Finding
plaintiff first argues that the ALJ should have found his
hereditary sensory axonal neuropathy an additional severe
impairment at Step 2. See Statement of Errors at
2-10. He relies on an EMG study with accompanying diagnosis
and his testimony. See id.
discussed the plaintiff's neuropathy at Step 2:
As for his hereditary sensory axonal neuropathy, I find that
the EMG study revealed moderately severe sensory axonal
neuropathy. In addition, physical examinations have indicated
some diminished sensation of his hands and feet. However, the
[plaintiff] has never followed up with neurology, despite
several referrals. He has also reported that his neuropathy
has improved with medication. Thus, I find that due to the
limited treatment and improvement with medication that his
neuropathy is a non-severe impairment.
Record at 16 (citations omitted).
plaintiff contends that this finding is unsupported by
substantial evidence because (i) the two agency nonexamining
consultants on whose opinions the ALJ relied did not factor
in his neuropathy, which was subsequently diagnosed, (ii)
contrary to the ALJ's finding, he did follow up with
neurology, and (iii) the ALJ relied on his improvement with
medication without taking into account its significant side
effects. See Statement of Errors at 5-8.
“an 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.” Bolduc v.
Astrue, Civil No. 09-220-B-W, 2010 WL 276280, at *4 n.3
(D. Me. Jan. 19, 2010). Even assuming arguendo that
the ALJ erred in failing to find the plaintiff's
neuropathy severe, the plaintiff fails to make this showing.
plaintiff contends that the errors of which he complains were
not harmless because “[t]he evidence indicates that
[his] neuropathy impacts his ability to use his hands and
arms” and “to ambulate and sit for prolonged
periods of time[, ]” Statement of Errors at 9-10, and,
yet, the ALJ failed to assess either manipulative or postural
limitations, see id. at 8-9. He asserts that such
limitations would have ruled out the three jobs on which the
ALJ relied at Step 5, all of which require frequent handling
and occasional or frequent fingering and are categorized as
light jobs, which require lifting up to 20 pounds at a time
and “‘a ...