Ryan J. M. v. Saul

         REPORT AND RECOMMENDED DECISION ^[2]

          JOHN H. RICH III UNITED STATES MAGISTRATE JUDGE.

         This Social Security Disability (“SSD”) 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 erroneously (i) failed to consider evidence timely submitted in accordance with 20 C.F.R. § 404.935(a) and (ii) determined that had had no severe mental impairment. See Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 11) at 6-10. The commissioner concedes both errors but contends that the plaintiff has failed to show that they were harmful. See Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 15) at 2-11. I agree and, accordingly, recommend that the court affirm the commissioner's decision.

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 404.1520; 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, 2021, Finding 1, Record at 31; that he had the severe impairments of degenerative disc disease, bilateral hip degenerative joint disease, obesity, and bilateral knee degenerative joint disease, which was severe in combination with his severe musculoskeletal impairments and obesity, Finding 3, id. at 31-32; that he had the residual functional capacity (“RFC”) to perform the full range of sedentary work as defined in 20 C.F.R. § 404.1567(a), Finding 5, id. at 37; that, considering his age (33 years old, defined as a younger individual, on his alleged disability onset date, January 1, 2016), 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 7-10, id. at 46; and that he, therefore, had not been disabled from January 1, 2016, his alleged onset date of disability, through the date of the decision, December 27, 2017, Finding 11, id. at 46-47. The Appeals Council declined to review the decision, id. at 1-4, making the decision the final determination of the commissioner, 20 C.F.R. § 404.981; 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); 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 his past relevant work. 20 C.F.R. § 404.1520(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. Failure To Consider Evidence

         The plaintiff first contends, and counsel for the commissioner conceded at oral argument, that the ALJ erroneously declined to accept evidence on the basis that the plaintiff had failed either to submit it at least five days prior to hearing pursuant to 20 C.F.R. § 404.935 or to argue that he met any recognized exception to that so-called “five-day rule.” See Statement of Errors at 6-8.^[3]

         In his statement of errors, the plaintiff asserted that this error was harmful “because the records in question consist of surgical consultations and operative reports from Sebasticook Valley Health Center and physical therapy records from Advanced Health Physical Therapy in 2017, both tending to show that [he] was more limited due to his physical impairments th[a]n was found by the ALJ.” Id. at 8 (citing Record at 53-75, 76-82). He did not explain how. See id.

         As the commissioner argues, see Opposition at 3, this showing is insufficient to warrant remand, see, e.g., Dax v. Colvin, No. 1:15-cv-21-JHR, 2015 WL 9473405, at *2 (D. Me. Dec. 28, 2015) (claimant who argued that ALJ committed reversible error in failing to admit evidence pursuant to five-day rule did not make “the showing of prejudice necessary to warrant reversal and remand” when he did “not even address the question of how the contents of the report would require, or even support, a different outcome on the merits of his claim”) (citation, internal quotation marks, and footnote omitted).

         At oral argument, the plaintiff's counsel elaborated that the omitted evidence demonstrated that his client had flares of lumbar-spine and knee pain requiring injections, which counsel characterized as inconsistent with the ability to sustain sedentary work on an ongoing basis. He asserted that this was so because the plaintiff reported that there were days on which he was not able to engage in some of the activities on which the ALJ relied, such as working out at the gym, and a vocational expert would testify that employers will not tolerate more than one unexcused absence a month. As counsel for the commissioner rejoined, this remains too vague a showing on which to predicate harmful error, the plaintiff having failed to explain how the omitted evidence painted a materially different picture than the evidence on which the ALJ relied.

         In any event, as the commissioner suggests, see Opposition at 3-8, the contents of the omitted records comport with the ALJ's finding that, while the plaintiff's “symptoms have waxed and waned, and while he has had some flares, they are generally associated with increased physical exertion well in excess of a sedentary work capacity, and have generally responded well to treatment[, ]” Record at 39 (citations omitted). See, e.g., Record at 58 (November 24, 2017, report by plaintiff that he was enrolled in a master's degree of social work program through Simmons College), 63 (August 11, 2017, report by plaintiff that an injection for back pain had worked, resulting in an 80 to 85 percent improvement, and that he had been “more active[, ]” including participating in water aerobics and walking, although he did get increase in pain with his activities and, therefore, “ha[d] been more careful about long-distance walking”), 79 (August 4, 2017, report by plaintiff of 95 percent improvement following course of physical therapy for right knee pain, with pain when performing such activities as carrying laundry, walking long distances, or making a quick twisting motion), 82 (October 26, 2017, report by plaintiff of 90 percent improvement following course of physical therapy for right knee pain, left knee pain, and muscle spasm, with greatest functional difficulty climbing stairs, getting in and out of car, getting off of floor, walking on uneven ground, and walking longer than a half mile).

         Remand, accordingly, is unwarranted on the basis of this point of error.

         B. Erroneous Finding of No. ...