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Jeremy J. S. v. Berryhill

United States District Court, D. Maine

May 7, 2019

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

          REPORT AND RECOMMENDED DECISION [1]

          John H. Rich III, United States Magistrate Judge

         This 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 commissioner's decision.

         Pursuant 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).

         The 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).

         The 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).

         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 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).

         I. Discussion

         A. Step 2 Finding

         The 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.

         The ALJ 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).

         The 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.

         Nonetheless, “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.

         The 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 ...


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