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Heidi M. v. Berryhill

United States District Court, D. Rhode Island

December 26, 2018

HEIDI M., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          Patricia A. Sullivan, United States Magistrate Judge.

         Plaintiff Heidi M., a “younger” person, filed her claim for Disability Insurance Benefits (“DIB”) on October 17, 2014, alleging that she had been disabled from October 23, 2013, when she was medically retired from military service, until her date last insured, March 31, 2018. As grounds, she contends that she suffered from disabling fibromyalgia, cervical and lumbar spine disorders, carpal tunnel syndrome, migraine headaches, asthma, depression, anxiety and panic attacks. In this case, she challenges the decision of an Administrative Law Judge (“ALJ”) that, despite an array of severe impairments, [1] she retained the residual functional capacity (“RFC”)[2] to perform sedentary work with a sit/stand option, postural and environmental limits, and limits on reaching, handling and fingering, as well as mental limitations, including no more than a low-stress job, with no production pace work and limited social interaction. Tr. 28.

         Pending before the Court for determination based on the parties' consent are the parties' motions for summary judgment. For the reasons that follow, as well as for the reasons stated on the record during the hearing held on November 2, 2018, Plaintiff's motion (ECF No. 12) is denied and Defendant's motion (ECF No. 15) is granted.


         In support of her appeal from the ALJ's decision, Plaintiff relied on five arguments: (1) that the ALJ failed to consider the disability rating of the U.S. Department of Veterans Affairs (“VA”); (2) that the ALJ failed to afford appropriate weight to the opinion of a treating psychologist, Dr. Kevin McKay, particularly the reference to the “WHODAS” rating results; (3) that the ALJ erred in affording partial weight to the mental health opinions of a VA psychologist, Dr. Jennifer Primack, who performed a single examination, as well as to the state agency psychologists, all of whom opined that Plaintiff's mental limitations permitted her to work; (4) that the ALJ failed to assign RFC limitations based on Plaintiff's headaches; and (5) that the ALJ did not accept Plaintiff's statements regarding the severity and intensity of her fibromyalgia symptoms.

         At the hearing before the Court on the parties' dueling motions for summary judgment held on November 2, 2018, the Court laid out the relevant background and applicable law and ruled against Plaintiff on each of these arguments.[3] However, citing Silva v. Colvin, No. CA 14- 301 S, 2015 WL 5023096, at *13 (D.R.I. Aug. 24, 2015), the Court sua sponte raised an issue not mentioned by Plaintiff - the ALJ's obvious error at Steps Four and Five in relying on the testimony of the vocational expert (“VE”) that Plaintiff would be unable to perform past relevant work, but retained the RFC to work as a hand packager, assembler or inspector. Tr. 38. In fact, the VE's testimony was the opposite: she actually stated that Plaintiff could perform her past work as a general office clerk, but that the limitations on the use of her hands would prevent her from working as a sedentary hand packager, assembler or inspector. Tr. 114-15. Noting that, if the ALJ's finding of the inability to perform past relevant work is well founded, while the hand packager, assembler or inspector finding is an obvious error because Plaintiff's manipulative limitations precluded those jobs, the result would be an award of benefits, the Court found that justice required that the issue be raised sua sponte. See Moore v. Astrue, No. CV-10-36-GF-SEH-RKS, 2011 WL 1532407, at *3 (D. Mont. Mar. 30, 2011), adopted, 2011 WL 1539871 (D. Mont. Apr. 21, 2011) (courts may raise issues sua sponte to prevent injustice).

         During the hearing, the parties presented argument regarding this issue and the Court advised them of its preliminary decision as set out below. Post-hearing, they submitted supplemental briefs. ECF Nos. 19 & 20. The case is now ripe for decision.


         The ALJ's findings shall be conclusive if they are supported by substantial evidence, and must be upheld “if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion, ” even if the record could also justify a different conclusion. Applebee v. Berryhill, 744 Fed.Appx. 6, 2018 WL 6266310, at *1 (1st Cir. Nov. 30, 2018) (per curiam) (unpublished opinion) (quoting Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222-23 (1st Cir. 1981)). In applying the “substantial evidence” standard, it is clear that it is the province of the ALJ, not the courts, to find facts, decide issues of credibility, draw inferences from the record, and resolve conflicts of evidence. See Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam) (citing Rodriguez, 647 F.2d at 222).

         Courts should not overturn administrative decisions tainted only by harmless error. The federal “harmless-error” statute is codified at 28 U.S.C. § 2111, which directs courts to review cases for errors of law “without regard to errors” that do not affect the parties' “substantial rights.” Shinseki v. Sanders, 556 U.S. 396, 407 (2009). Based on the harmless error doctrine as codified, a mistake by an administrative body “does not mechanically compel reversal when [it's] one that clearly had no bearing on the procedure used or the substance of the decision reached.” Kurzon v. U.S. Postal Serv., 539 F.2d 788, 796 (1st Cir. 1976).

         It is well settled that the harmless error rule is applicable to the judicial review of Social Security ALJs. See Slimane v. Astrue, Civil Action No. 11-10058-RWZ, 2012 WL 1836371, at *7 (D. Mass. May 17, 2012) (“even if the ALJ mischaracterized [the plaintiff's treatment providers'] opinions, such error was not prejudicial because it did not affect the ALJ's ultimate disability determination”). In reliance on the rule, courts are reluctant to remand Social Security cases for the purely formulaic purpose of having an ALJ write out what seems plain on a review of the record. Shaw v. Sec'y of Health & Human Servs., 25 F.3d 1037, 1994 WL 251000, at *5 (1st Cir. June 9, 1994) (unpublished table decision); see Ward v. Comm'r of Soc. Sec., 211 F.3d 652, 656 (1st Cir. 2000) (“a remand is not essential if it will amount to no more than an empty exercise”). An “ALJ's error is harmless where it is ‘inconsequential to the ultimate nondisability determination.'” Rivera v. Comm'r of Soc. Sec. Admin., Civil No. 12-1479(BJM), 2013 WL 4736396, at *11 (D.P.R. Sept. 3, 2013) (quoting Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)). If the likely outcome on remand is clear and the same as that reached by the ALJ, the error is harmless and the court should uphold the denial of benefits. Ward v. Apfel, No. 98-168-B, 1999 WL 1995199, at *3 (D. Me. June 2, 1999), aff'd, Ward v. Comm'r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). The “burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.” Shinseki, 129 S.Ct. at 1706.


         One of the limitations that the ALJ incorporated in the primary hypothetical directed to the VE at the hearing, which he ultimately adopted in his decision, was that Plaintiff could do “frequent handling and fingering, all bilaterally, ” but could not perform work that required constant use of the hands. Tr. 28, 106-10. Review of the hearing transcript reveals that this limitation created confusion at the hearing in that the VE initially testified that Plaintiff could both perform prior work and also sedentary jobs (hand packager, assembler or inspector) available in the regional and national economy. Tr. 109-10. Then, the VE abruptly announced that her opinion had omitted consideration of the ALJ's limitations on the use of the hands. Tr. 112 (“Oh, my God. I am so sorry.”). The ALJ walked her back through her answers - the second time, she did not change her testimony about prior work, opining that the hand limits would not preclude prior work, Tr. 114 (“The general office clerk is frequent. It's not constant.”), but would rule out all of the sedentary jobs the VE had previously mentioned, Tr. 115 (“I would have to eliminate the, all of the assembler, hand packager, inspector jobs --”). As the ALJ summarized in his final question regarding prior work, “So the past work is still there. . . . Is that right?” Tr. 114. The VE responded, “Right.” Id.

         The ALJ went over this testimony until it was crystal clear: the VE's testimony was that Plaintiff could perform her prior work, but that there were no other jobs available. Tr. 115-16. After the clarifying testimony was on the record, the ALJ specifically advised Plaintiff's counsel that, although he had not made a final decision regarding what RFC to adopt, if his primary hypothetical were adopted for the RFC, the case would be determined based on the ability to perform prior work. Tr. 116 (“So I'm looking at this at either a Step 4 or hypothetical 3 ...

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