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James D. P v. Saul

United States District Court, D. Maine

September 30, 2019

JAMES D. P., Plaintiff
v.
ANDREW M. SAUL, Commissioner of Social Security, [1] Defendant

          MEMORANDUM 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 erred in (i) finding no severe, medically determinable impairment (“MDI”) of fibromyalgia and no severe impairment of irritable bowel syndrome (“IBS”), (ii) reaching the unsupported conclusion that he could work in sight of coworkers with no team work or collaborative work, and (iii) failing to undertake an appropriate legal analysis of his subjective statements. See Plaintiff's Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 11) at 5-20. I find no reversible error and, accordingly, 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, 2020, Finding 1, Record at 20; that he had the severe impairments of spinal disorder, peripheral neuropathy, depressive disorder, anxiety disorder, and post-traumatic stress disorder (“PTSD”), Finding 3, id.; that he had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b), except that he could occasionally climb ladders, ropes, scaffolds, ramps and stairs, occasionally balance, stoop, kneel, crouch, and crawl, could not work with tools or on surfaces that vibrate, could perform simple, routine tasks that did not involve interaction with the public, could work in sight of coworkers but could not do team work or collaborative work, and could adapt to simple changes in work routine, Finding 5, id. at 23; that, considering his age (46 years old, defined as a younger individual, on his alleged disability onset date, January 23, 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 27-28; and that he, therefore, had not been disabled from January 23, 2016, his alleged onset date of disability, through the date of the decision, January 18, 2018, Finding 11, id. at 28-29. The Appeals Council declined to review the decision, id. at 4-6, 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. Step 2: Fibromyalgia and IBS

         1. Finding That Fibromyalgia Not an MDI

         The plaintiff first challenges the ALJ's findings that he did not establish that he had an MDI of fibromyalgia and that, even if he had done so, the impairment was nonsevere. See Statement of Errors at 5-14. I conclude that the ALJ's threshold finding that the plaintiff had no MDI of fibromyalgia is supported by substantial evidence, disposing of this point favorably to the commissioner.

         “No symptom or combination of symptoms can be the basis for a finding of disability, no matter how genuine the individual's complaints may appear to be, unless there are medical signs and laboratory findings demonstrating the existence of a medically determinable physical or mental impairment.” Social Security Ruling 96-4p, reprinted in West's Social Security Reporting Service, Rulings 1983-1991 (Supp. 2019) (“SSR 96-4p”), at 118.

         “It is the plaintiff's burden to produce sufficient evidence to allow the commissioner to reach a conclusion at Step 2; the absence of evidence provides support for a conclusion adverse to the plaintiff at this point in the sequential evaluation process.” Coffin v. Astrue, Civil No. 09-487-P-S, 2010 WL 3952865, at *2 (D. Me. Oct. 6, 2010) (rec. dec., aff'd Oct. 27, 2010).

         Social Security Ruling 12-2p (“SSR 12-2p”), which pertains to fibromyalgia, provides, in relevant part:

Generally, a person can establish that he or she has an MDI of FM [fibromyalgia] by providing evidence from an acceptable medical source. A licensed physician (a medical or osteopathic doctor) is the only acceptable medical source who can provide such evidence. We cannot rely upon the physician's diagnosis alone.
We will find that a person has an MDI of FM if the physician diagnosed FM and provides the evidence we describe in section II.A. [setting forth the 1990 American College of Rheumatology (“ACR”) Criteria for the Classification of Fibromyalgia] or section II.B. [setting forth the 2010 ACR Preliminary Diagnostic Criteria], and the physician's diagnosis is not inconsistent with the other evidence in the person's case record.

SSR 12-2p, reprinted in West's Social Security Reporting Service Rulings 1983-1991 (Supp. 2019), at 459-60 (footnote omitted).

         The 1990 criteria require a showing of (i) “[a] history of widespread pain . . . that has persisted (or that persisted) for at least 3 months[, ]” (ii) “[a]t least 11 positive tender points on physical examination” that “must be found bilaterally (on the left and right sides of the body) and both above and below the waist” in 18 specified tender point sites, and (iii) ...


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