United States District Court, D. Maine
RYAN J. M., Plaintiff
v.
ANDREW M. SAUL, Commissioner of Social Security, [1] Defendant
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. ...