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Nichole L. R. v. Saul

United States District Court, D. Maine

December 26, 2019

NICHOLE L. R., 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, through her date last insured for SSD benefits, of performing work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that (i) the Appeals Council erroneously declined to consider a medical source statement from treating physician's assistant Danielle St. Onge, PA-C, (ii) the ALJ's determination of her residual functional capacity (“RFC”) is unsupported by substantial evidence, (iii) the ALJ erroneously failed to consider whether her knee impairment equaled Listing 1.02, Appendix 1 to 20 C.F.R. Part 404, Subpart P (the “Listings”), or met or equaled Listing 1.03, and (iv) the ALJ erroneously failed to consider whether she had any mental limitations. See Plaintiff's Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 20) at 1-2. I find no harmful 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; 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, 2016, Finding 1, Record at 30; that, through her date last insured (“DLI”), she had the severe impairments of obesity and dysfunction of both knees, Finding 3, id.; that, through her DLI, she had no impairment or combination of impairments that met or equaled any of the Listings, Finding 4, id. at 32; that, through her DLI, she had the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b), except that she could stand and/or walk for about two hours in an eight-hour workday, occasionally push and pull with her right lower extremity, occasionally climb ramps and stairs, never climb ladders, ropes, or scaffolds, occasionally balance and stoop, never kneel, occasionally crouch, never crawl, perform no work in extreme cold, on surfaces, with tools that vibrate, at unprotected heights, or on uneven ground, and would need a cane to ambulate, Finding 5, id. at 33; that, through her DLI, considering her age (36 years old, defined as a younger individual, on her DLI), 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, Findings 7-10, id. at 37; and that she, therefore, had not been disabled at any time from January 1, 2012, her amended alleged onset date of disability, through December 31, 2016, her DLI, Finding 11, id. at 38. 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 her 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).

         The statement of errors also implicates Step 3 of the sequential evaluation process, at which step a claimant bears the burden of proving that her impairment or combination of impairments meets or equals a listing. 20 C.F.R. § 404.1520(d); Dudley v. Sec'y of Health & Human Servs., 816 F.2d 792, 793 (1st Cir. 1987). To meet a listing, the claimant's impairment(s) must satisfy all criteria of that listing, including required objective medical findings. 20 C.F.R. § 404.1525(c)(3). To equal a listing, the claimant's impairment(s) must be “at least equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R. § 404.1526(a).

         I. Discussion

         A. Appeals Council's Refusal to Consider Evidence

         In denying the plaintiff's request for review of the ALJ's decision, the Appeals Council acknowledged that she had submitted the medical source statement of PA-C St. Onge dated August 4, 2017. See Record at 2. However, it explained:

The [ALJ] decided your case through December 31, 2016. This additional evidence does not relate to the period at issue. Therefore, it does not affect the decision about whether you were disabled beginning on or before December 31, 2016.

Id.

         In Mills v. Apfel, 244 F.3d 1 (1st Cir. 2001), the First Circuit made clear that there are two circumstances in which remand based on submission of evidence subsequent to the issuance of an ALJ's decision is appropriate: (i) when that evidence is new and material and a claimant demonstrates good cause for its belated submission and (ii) when, regardless of whether there is such good cause, the Appeals Council has given an “egregiously mistaken ground” for its action in refusing review in the face of such late-tendered evidence. Mills, 244 F.3d at 5-6.

         The plaintiff contends that the Appeals Council was egregiously mistaken in concluding that the St. Onge medical source statement did not relate to the period through December 31, 2016. See Statement of Errors at 9-12. However, as the commissioner counters, see Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 23) at 2-4, that is not the case. PA-C St. Onge's statement is dated August 4, 2017, see Record at 49, postdating the plaintiff's DLI by more than seven months. She not only checked boxes and answered questions inquiring about the plaintiff's current status, see, e.g., id. at 44 (instructing the medical source to “[c]heck the boxes representing the amount the individual can lift and how often it can be lifted”) (underscore in original), but also hand-wrote, “unable to walk or stand for prolonged time due to right knee pain and weakness[, ]” id. at 45.

         The sole indication on the face of the St. Onge statement that her opinions might pertain to a different time period is the fact that she answered “Yes” to the question, “Have the limitations you found above lasted or will they last for 12 consecutive months?” Id. at 49. However, as the plaintiff's counsel acknowledged at oral argument, the question as phrased is ambiguous, as a result of which it is unclear whether PA-C St. Onge meant to indicate that the assessed limitations had predated, or were expected to postdate, her August 4, 2017, statement, or some combination of both. The plaintiff's counsel, nonetheless, contended that, had the Appeals Council construed the St. Onge statement against the backdrop of the underlying medical evidence the plaintiff submitted with that statement, the ambiguity would have been resolved in the plaintiff's favor. This proves too ...


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