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Michael H. B. v. Berryhill

United States District Court, D. Rhode Island

August 6, 2018

MICHAEL H. B., Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN UNITED STATES MAGISTRATE JUDGE.

         Before the Court is the motion of Plaintiff Michael H. B. to reverse the Commissioner's decision denying Supplemental Security Income ("SSI") under § 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3) (the "Act"). Plaintiff challenges as unsupported by substantial evidence the Step Two finding of the Administrative Law Judge ("ALJ") that gout is not a severe impairment. He also contends that the ALJ erred in failing to consider the functional limitations caused by gout in determining Plaintiffs residual functional capacity ("RFC").[1] Defendant Nancy A. Berryhill asks the Court to affirm the Commissioner's decision. The matter has been referred to me for preliminary review, findings and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Having reviewed the entirety of the relevant record, I find that the ALJ's findings are consistent with applicable law and amply supported by substantial evidence. I recommend that Plaintiffs Motion to Reverse, without or, Alternatively, with a Remand for a Rehearing of the Commissioner's Final Decision (ECF No. 12) be DENIED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 13) be GRANTED.

         I. Background

         This case presents a narrow and relatively simple issue - whether the ALJ's reliance at Step Two on the report of a consultative examining physician, Dr. Jay Burstein, and on the opinion of an expert file-reviewing physician, Dr. Henry Laurelli, somehow leaves the Step Two finding without the support of substantial evidence.

         Dr. Burstein examined Plaintiff on May 30, 2014, focused on his complaints of chronic pain in the lower extremities based on gout, and found "no other functional limits from the orthopedic perspective," apart from limits on "running and jumping." Tr. 482. Dr. Laurelli examined the file assembled as of June 25, 2014, (which included the Burstein report, as well as observations of knee locking, swelling, tenderness, pulse diminishment and mildly antalgic gait), and opined that '[n]o severe MDI has been identified." Tr. 108. No. contrary opinion was submitted by any treating source. After a detailed survey of the medical evidence, the ALJ found these opinions to be consistent with the "overall record"; based on that finding, the ALJ made the determination that their opinions should be afforded significant weight, resulting in his Step Two finding that gout (including gouty arthropathy) is not a severe impairment. Tr. 19-20. Further, in continuing the sequential analysis based on finding that Plaintiffs depression was severe, the ALJ did not ignore Plaintiffs symptoms of lower extremity pain and difficulty walking, allegedly caused by gout. To the contrary, the ALJ specifically considered Plaintiffs reports of "chronic pain" and "physical problems" in connection with the analysis of Plaintiff s functional limitations that formed the basis for the RFC finding. Tr. 23, 26. Further, the RFC is based, inter alia, on the opinion of the consultative examining psychologist, Dr. Wendy Schwartz, who specifically noted Plaintiffs lower extremity arthritis and claimed need for a cane or walker. Tr. 471-79.

         II. Standard of Review

         The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla - that is, the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam); Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981); Brown v. Apfel, 71 F.Supp.2d 28, 30 (D.R.I. 1999). Once the Court concludes that the decision is supported by substantial evidence, the Commissioner must be affirmed, even if the Court would have reached a contrary result as finder of fact. Rodriguez Pagan v. Sec'y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987); see also Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); Lizotte v. Sec'y of Health & Human Servs., 654 F.2d 127, 128 (1st Cir. 1981).

         The determination of substantiality is based upon an evaluation of the record as a whole. Brown, 71 F.Supp.2d at 30; see also Frustaglia v. Sec'y of Health & Human Servs., 829 F.2d 192, 195 (1st Cir. 1987); Parker v. Bowen, 793 F.2d 1177, 1180 (11th Cir. 1986) (court also must consider evidence detracting from evidence on which Commissioner relied). Thus, the Court's role in reviewing the Commissioner's decision is limited. Brown, 71 F.Supp.2d at 30. The Court does not reinterpret the evidence or otherwise substitute its own judgment for that of the Commissioner. Id. at 30-31 (citing Colon v. Sec'y of Health & Human Servs., 877 F.2d 148, 153 (1st Cir. 1989)). "[T]he resolution of conflicts in the evidence is for the Commissioner, not the courts." Id. at 31 (citing Richardson v. Perales, 402 U.S. 389, 399 (1971)). A claimant's complaints alone cannot provide a basis for entitlement when they are not supported by medical evidence. See Avery v. Sec'y of Health & Human Servs., 797 F.2d 19, 20-21 (1st Cir. 1986); 20 C.F.R. § 416.929(a). The Court must reverse the ALJ's decision if the ALJ applies incorrect law, or if the ALJ fails to provide the Court with sufficient reasoning to determine that the law was applied properly. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam); accord Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).

         III. Disability Determination

         The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelvemonths. 42U.S.C. §§ 416(i), 423(d)(1); 20 C.F.R. §416.905. The impairment must be severe, making the claimant unable to do previous work, or any other substantial gainful activity which exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. § 416.905-911.

         A. The Five-Step Evaluation

         The ALJ must follow five steps in evaluating a claim of disability. See 20 C.F.R. § 416.920. First, if a claimant is working at a substantial gainful activity, the claimant is not disabled. 20 C.F.R. § 416.920(b). Second, if a claimant does not have any impairment or combination of impairments that significantly limit physical or mental ability to do basic work activities, then the claimant does not have a severe impairment and is not disabled. 20 C.F.R. § 416.920(c). Third, if a claimant's impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Appendix 1, the claimant is disabled. 20 C.F.R. § 416.920(d). Fourth, if a claimant's impairments do not prevent doing past relevant work, the claimant is not disabled. 20 C.F.R. § 416.920(e)-(f). Fifth, if a claimant's impairments (considering RFC, age, education and past work) prevent doing other work that exists in the local or national economy, a finding of disabled is warranted. 20 C.F.R. § 416.920(g). Significantly, the claimant bears the burden of proof at Steps One through Four, but the Commissioner bears the burden at Step Five. Wells v. Barnhart, 267 F.Supp.2d 138, 144 (D. Mass. 2003) (five step process applies to SSI claims).

         B. Step Two Determination

         An impairment is "not severe" at Step Two if the medical evidence establishes no more than a slight abnormality that would have only a minimal effect on an individual's ability to work. SSR 85-28 at *2, 1985 WL 56856 (Jan. 1, 1985). As the First Circuit has long held, Step Two is a screening device used to eliminate applicants "whose impairments are so minimal that, as a matter of common sense, they are clearly not disabled from gainful employment." McDonald v. Sec'y of Health & Human Servs.,795 F.2d 1118, 1123 (1st Cir. 1986); Burge v. Colvin. C.A. No. 15-279S, 2016 WL 8138980, at *7 (D.R.I. Dec. 7, 2016), adopted sub nom., Burge v. Berryhill C.A. No. 15-279S, 2017 WL 435753 (D.R.I. Feb. 1, 2017). Further, if there is error at Step Two, but the sequential analysis continues because of another severe impairment, the error is generally deemed harmless. White v. Colvin, C.A. No. 14-171S, 2015 WL 5012614, at *8 (D.R.I. Aug. 21, 2015); see Syms v. Astrue, No. 10-cv-499-JD, 2011 WL 4017870, at *1 (D.N.H. Sept. 8, 2011) ("[A]n error at Step Two will result in reversible error only if the ALJ concluded the decision at Step Two, finding no severe impairment.") (collecting cases). Thus, as long as the ALJ's RFC analysis is performed in reliance on the opinions of state agency reviewing experts or treating sources who considered the functional impact of the impairment in question, ...


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