Staples v. Colvin

DONALD STAPLES, Plaintiff v. CAROLYN W. COLVIN,Acting Commissioner of Social Security, Defendant

No. 2:15-cv-392-DBH

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

August 3, 2016

REPORT AND RECOMMENDED DECISION¹

The plaintiff in this well-traveled Social Security Disability ("SSD") case contends that the administrative law judge committed several reversible errors, at Steps 2 and 5 of the commissioner's sequential evaluation process, including mishandling the medical evidence, wrongly relying upon an unsupported medical opinion, wrongly weighing retrospective opinions, and failing to comply with the remand order of the Appeals Council. For the reasons that follow, I recommend that the court vacate the commissioner's decision and remand the action for further proceedings.

In accordance with the commissioner's sequential evaluation process, 20 C.F.R. § 404.1520; Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the administrative law judge found, in relevant part, that the plaintiff met the insured statusrequirements of the Social Security Act through March 31, 1992, Finding 1, Record at 620; that, through the date last insured, he suffered from a generalized anxiety disorder, an impairment that was not severe, Findings 3-4, id. at 621-22; that, through the date last insured, he accordingly was not under a disability, as that term is defined in the Social Security Act, Finding 5, id. at 625; that, in the alternative, through the date last insured, his anxiety-related disorder was severe, but did not meet or medically equal the criteria of any impairment listed in Appendix 1 to 20 C.F.R. Part 404, Subpart P (the "Listings"), Findings 6-7, id.; that, through the date last insured, he had the residual functional capacity ("RFC") to perform a full range of work at all exertional levels except that he was limited to simple work with no public contact, Finding 8, id. at 626; that, through the date last insured, he was unable to perform any past relevant work, Finding 9, id. at 629; that, given his age (44 years old, on the date last insured), education (at least high school), work experience, and RFC, and using the Medical-Vocational Rules in Appendix 2 to 20 C.F.R. Part 404, Subpart P, as a framework for decision-making, there were jobs existing in significant numbers in the national economy through the date last insured that he could have performed, Findings 10-13, id. at 629-30; and that he, therefore, had not been disabled from August 1, 1988, through the date last insured, March 31, 1992, Finding 14, id. at 630. The Appeals Council declined to review the decision, id. at 595-98, making the decision the final determination of the commissioner, 20 C.F.R. § 404.981; Dupuis v. Secretary 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. Secretary 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 theconclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

The administrative law judge reached Step 2 of the sequential evaluation process. Although a claimant bears the burden of proof at Step 2, it is a de minimis burden, designed to do no more than screen out groundless claims. McDonald v. Secretary of Health & Human Servs., 795 F.2d 1118, 1124 (1st Cir. 1986). When a claimant produces evidence of an impairment, the commissioner may make a determination of non-disability at Step 2 only when the medical evidence "establishes only a slight abnormality or [a] combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work even if the individual's age, education, or work experience were specifically considered." Id. (quoting Social Security Ruling 85-28).

The statement of errors also implicates 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. Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

I. Discussion

A. Step 2

The plaintiff argues that the administrative law judge erred in "concluding that the analysis should terminate at Step 2." Plaintiff's Itemized Statement of Errors ("Itemized Statement") (ECF No. 12) at 5. He does not identify in this section of his brief the "mental impairments," id., that he contends should have been found to be severe at Step 2, nor does he suggest how reaching such adetermination would necessarily change the outcome of his application, as is required by established case law in this district. E.g., Bolduc v. Astrue, Civil No. 09-220-B-W, 2010 WL 276280, at *4 n.3 (D. Me. Jan. 19, 2010) (and cases cited therein). Ordinarily, this omission would mean that he is not entitled to remand based on this argument.

The difference in this case, however, is that the administrative law judge who made the finding at Step 2 that the plaintiff had no severe impairments was acting on remand after a different administrative law judge had found that the plaintiff's anxiety disorder was severe, but that it did not affect the occupational base of unskilled work. Record at 18-21, 35-38.

In Bolduc, I observed in a footnote that the plaintiff's failure to show that the error she had alleged was not harmless doomed her appeal at Step 2. 2010 WL 276280, at *4 n.3. The administrative law judge in that case did not reverse an earlier decision that was favorable to the claimant, as was the case here. In this case, the administrative law judge came to the opposite conclusion at Step 2 from that made by the first judge without explaining that difference. Record at 622-25. See Magee v. Astrue, No. 4:11-cv-48-RLY-TAB, 2012 WL 1156429 (S.D. Ind. Apr. 6, 2012)(administrative law judge on remand with same medical record may not change severe finding to not severe without explanation for doing so).

This court has addressed similar reversals in the past. In those cases, I noted that reconsideration of the finding at Step 2 that a claimant's impairment is severe is foreclosed when the remand order does not specifically direct the administrative law judge to undertake that task. Day v. Astrue, No. 1:12-cv-141-DBH, 2012 WL 6913439, at *5 (D. Me. Dec. 30, 2012); Maddocks v. Astrue, No. 1:11-cv-461-NT, 2012 WL 5255197, at *3 (D. Me. Sept. 30, 2012) (in the absence of "persuasive evidence that the administrative law judge labored under a basic misconception of the evidence, it would be inappropriate to disturb prior administrative findings that have neverbeen challenged"). Nothing in my earlier decision recommending that the first decision be vacated may reasonably be construed to direct the administrative law judge to revisit the Step 2 finding.² Report and Recommended Decision, Staples v. Astrue, Civil No. 09-440-P-S (ECF No. 18). Record at 705-18. See also Drummond v. Commissioner of Soc. Sec., 126 F.3d 837, 842 (6^th Cir. 1997) (administrative law judge may not on remand change finding of severe to not severe absent evidence of improvement in claimant's condition).

This court's opinion in 2010 that vacated the decision of the first administrative law judge at Step 5 did not permit the second administrative law judge to reject the Step 2 finding of severity by the first administrative law judge. Because that error unfairly deprived the plaintiff of a finding in his favor at Step 2, where the burden of proof is de minimis, the plaintiff is entitled to yet another remand.

For the benefit of the parties on remand, and in the hope of minimizing the time and effort to be spent in yet another consideration by the commissioner, I will briefly address the plaintiff's arguments concerning the administrative law judge's alternate findings at Step 5.

B. Step 5 Issues

1. Law of the Case

The plaintiff contends that the administrative law judge's decision at Step 5 was "precluded by the law of the case" and was impermissibly based upon "his lay judg[]ment . . . in crafting an RFC finding which was contradicted by all of [the] assessments completed by the acceptable medical sources of record." Itemized Statement at 14. The defendant does not respond to the plaintiff's law-of-the-case argument.

Specifically, the plaintiff describes his law-of-the-case argument as follows:

This very issue of whether an ALJ could make his own assessment of RFC without a supporting medical opinion in this case was presented to this Court previously in docket No. 09-cv-440. It was decided adversely to the Commissioner there and remains the law of the case.

Id. at 15.

At first glance, this appears to be merely the plaintiff's invocation of the precept of Social Security law that an administrative law judge may not, in most instances, craft an RFC based on his own interpretation of raw medical evidence or that an RFC must be supported by substantial evidence, rather than an instance appropriate for application of the doctrine of law of the case. As I understand the plaintiff's brief argument, however, he apparently means to contend that, because this court found when it first remanded this claim in 2010 that the RFC assessment made for the plaintiff at that time was not supported by substantial evidence in the record, the RFC assessment in this case, with no further medical evidence in the record, must be found to suffer from a similar lack of support.

This argument misapprehends my...