United States District Court, D. Rhode Island
MICHAEL H. B., Plaintiff,
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN UNITED STATES MAGISTRATE JUDGE.
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"). 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.
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.
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.
Standard of Review
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).
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).
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.
The Five-Step Evaluation
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).
Step Two Determination
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, ...