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Tuesdey D.-B. v. Saul

United States District Court, D. Maine

August 6, 2019

TUESDEY D.-B., Plaintiff
v.
ANDREW M. SAUL, Commissioner of Social Security, [1]

          REPORT AND RECOMMENDED DECISION [2]

          John H. Rich III United States Magistrate Judge

         This 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.

         Pursuant 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).

         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), 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 ALJ 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.

         In the 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).

         I. Discussion

         A. Failure To Recognize CRPS as Severe

         The 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.[3]

         B. Reliance on Agency Nonexamining Consultant

         The 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.

         C. Errors in Assessing RFC

         The 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.

         1. Handling of Emery Opinion

         On 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 following:

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 ...

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