United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
H. Rich III United States Magistrate Judge
Social Security Disability (“SSD”) and
Supplemental Security Income (“SSI”) appeal
raises the question of whether the administrative law judge
(“ALJ”) supportably found the plaintiff capable
of performing past relevant work as a cashier and telephone
sales service representative and, in the alternative, other
work in the national economy. The plaintiff seeks remand on
the bases that the ALJ erred in (i) failing to assess the
severity of her complex regional pain syndrome
(“CRPS”) at Step 2, (ii) relying on the opinion
of an agency nonexamining consultant that predated her
diagnosis of CRPS, (iii) failing to weigh the opinion of a
treating source who assessed more restrictive limitations,
(iv) finding no medically determinable impairment of migraine
headaches, (v) failing to assess limitations resulting from
her severe carpal tunnel syndrome (“CTS”), and
(vi) relying on vocational testimony predicated on the
resulting invalid residual functional capacity
(“RFC”) determination. See
Plaintiff's Itemized Statement of Errors
(“Statement of Errors”) (ECF No. 11) at 1, 3-12.
I find no reversible error and, accordingly, recommend that
the court affirm the commissioner's decision.
to the commissioner's sequential evaluation process, 20
C.F.R. §§ 404.1520, 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 met the insured status requirements of the Social
Security Act through September 30, 2016, Finding 1, Record at
13; that she had the severe impairments of soft tissue
sarcoma (leiomyosarcoma) of the right upper extremity status
post excision (2013) with neuropathic pain, a history of
right CTS status post release (2012), and degenerative disc
disease of the lumbar spine, Finding 3, id.; that
she had the RFC to perform light work as defined in 20 C.F.R.
§§ 404.1567(b) and 416.967(b), except that she
could occasionally climb ladders, ropes, and scaffolds,
occasionally crawl, and occasionally reach overhead, Finding
5, id. at 16; that she was capable of performing
past relevant work as a cashier and telephone sales service
representative, which did not require the performance of
work-related activities precluded by her RFC, Finding 6,
Id. at 19; that, in the alternative, considering her
age (41 years old, defined as a younger individual, on her
alleged onset date of disability, February 14, 2013),
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 she could perform, id. at 19-20; and that she,
therefore, had not been disabled from February 14, 2013, her
alleged onset date of disability, through the date of the
decision, August 7, 2017, Finding 7, id. at 21. 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. §§ 404.981, 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. §§ 405(g), 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).
reached Step 4 of the sequential evaluation process, at which
stage the claimant bears the burden of proving inability to
return to past relevant work. 20 C.F.R. §§
404.1520(f), 416.920(f); Bowen v. Yuckert, 482 U.S.
137, 146 n.5 (1987). At this step, the commissioner must make
findings of the plaintiff's RFC and the physical and
mental demands of past work and determine whether the
plaintiff's RFC would permit performance of that work. 20
C.F.R. §§ 404.1520(f), 416.920(f); Social Security
Ruling 82-62 (“SSR 82-62”), reprinted in
West's Social Security Reporting Service Rulings
1975-1982, at 813.
alternative, 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 her past relevant work. 20 C.F.R. §§
404.1520(g), 416.920(g); Yuckert, 482 U.S. at 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).
Failure To Recognize CRPS as Severe
plaintiff first asserts that the ALJ erred in failing even to
consider whether she had a severe impairment of CRPS, a
condition first suspected in November 2016. See
Statement of Errors at 3-4 (citing Record at 946-47, 953,
975, 978). However, as the commissioner observes,
see Defendant's Opposition to Plaintiff's
Statement of Errors (“Opposition”) (ECF No. 14)
at 3-4, in so arguing, the plaintiff overlooks the fact that
the ALJ declined to admit Exhibit 17F, which contains the
cited evidence, on the basis that the plaintiff had failed
either to submit it at least five days prior to the scheduled
hearing date as required by 20 C.F.R. §§ 404.935
and 416.1435 or to argue that she met any recognized
exception to that so-called “five-day rule[, ]”
see Record at 11, 381-82, 946-47, 953, 975, 978.
Absent a gateway argument that the ALJ erred in declining to
admit the evidence at issue, remand is unwarranted on the
basis of this point of error.
Reliance on Agency Nonexamining Consultant
plaintiff next contends that the ALJ erred in relying on the
opinion of an agency nonexamining consultant, Benjamin
Weinberg, M.D., that predated her diagnosis of CRPS.
See Statement of Errors at 4-6. This point hinges on
the success of the first, and founders for the same reason.
Errors in Assessing RFC
plaintiff next asserts that the ALJ's failure to weigh an
opinion from treating physician Kendra Emery, D.O., improper
rejection of her diagnosis of migraine headaches, and
omission of any limitations attributable to her severe CTS
impairment undermined her RFC determination, warranting
remand. See id. at 6-11. I find no reversible error.
Handling of Emery Opinion
August 4, 2015, Dr. Emery completed a form titled
“Medical Release/Physician's Statement” in
conjunction with the plaintiff's application for benefits
from the Maine Department of Health and Human Services.
See Record at 877-78. She checked a box indicating
that the plaintiff's “disability is not permanent
and is expected to last more than 6 months[, ]” left a
section on “activity restrictions” blank,
explaining, “do not do functional testing[, ]”
and checked a box “No” in answer to the
Individuals with employment limitations may still be assigned
to complete community work in an office environment with
little physical strain or demand (answering phones, filing
while seated, etc.). Others may be assigned to complete
employment related activities in a classroom setting. In your