The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
SHAWN M., )
)
Plaintiff )
)
v. ) 1:18-cv-00418-JAW
)
ANDREW M. SAUL, Commissioner, )
Social Security Administration, )
)
Defendant )
REPORT AND RECOMMENDED DECISION
On Plaintiff’s application for disability insurance benefits under Title II and
supplemental security income benefits under Title XVI of the Social Security Act,
Defendant, the Social Security Administration Commissioner, found that Plaintiff has
severe impairments, but retains the functional capacity to perform substantial gainful
activity. Defendant, therefore, denied Plaintiff’s request for disability benefits. Plaintiff
filed this action to obtain judicial review of Defendant’s final administrative decision
pursuant to 42 U.S.C. § 405(g).
Following a review of the record, and after consideration of the parties’ arguments,
I recommend the Court affirm the administrative decision.
THE ADMINISTRATIVE FINDINGS
The Commissioner’s final decision is the February 20, 2018 decision of the
Administrative Law Judge. (ALJ Decision, ECF No. 9-2, R. 10.)1 The ALJ’s decision
1 Because the Appeals Council found no reason to review that decision (R. 1), Defendant’s final decision
is the ALJ’s decision.
tracks the familiar five-step sequential evaluation process for analyzing social security
disability claims, 20 C.F.R. §§ 404.1520, 416.920.
The ALJ found that Plaintiff has severe, but non-listing-level impairments
consisting of lumbar degenerative disc disease, alcoholic liver disease, affective disorder,
and borderline intellectual function. (R. 13.) According to the ALJ, the impairments
restrict Plaintiff to light work, occasional ramps, stairs, ladders, stooping, kneeling, and
crouching; preclude work at heights or with concentrated exposure to vibration; and permit
unskilled work involving occasional decision making and public interaction. (R. 15.) The
ALJ found Plaintiff cannot perform past relevant work, but he can transition to other work
in the national economy, including the representative jobs of hand packer, bench assembler,
printer circuit board screener, and bench worker. (R. 18-20.) The ALJ thus determined
that Plaintiff was not disabled. (R. 20.)
STANDARD OF REVIEW
A court must affirm the administrative decision provided the decision is based on
the correct legal standards and is supported by substantial evidence, even if the record
contains evidence capable of supporting an alternative outcome. Manso-Pizarro v. Sec’y
of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per curiam); Rodriguez Pagan v. Sec’y of HHS,
819 F.2d 1, 3 (1st Cir. 1987). Substantial evidence is evidence that a reasonable mind
might accept as adequate to support a finding. Richardson v. Perales, 402 U.S. 389, 401
(1971); Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st Cir. 1981). “The ALJ’s findings
of fact are conclusive when supported by substantial evidence, but they are not conclusive
when derived by ignoring evidence, misapplying the law, or judging matters entrusted to
experts.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).
DISCUSSION
Plaintiff argues the ALJ erred in his assessment of Plaintiff’s mental impairment.
The ALJ found that Plaintiff’s severe mental impairments consist of affective disorder and
borderline intellectual function. (R. 13.) According to Plaintiff, his mental health disorders
also include post-traumatic stress disorder, anxiety, and panic disorder, and his affective
disorder is “major depression, moderate.”2 (R. 6.) Plaintiff contends the ALJ improperly
failed to find at step 2 of the process that Plaintiff’s general anxiety and post-traumatic
stress disorder constitute severe impairments. (Statement of Errors at 3.) Plaintiff also
argues the RFC finding is unsupportable insofar as it fails to include “restrictions which
address the Plaintiff’s inability to concentrate on even simple work tasks” and “inability to
maintain adequate work attendance.” (Id. at 11.)
A. Step 2
At step 2 of the sequential evaluation process, a claimant must demonstrate the
existence of impairments that are “severe” from a vocational perspective, and that the
impairments meet the durational requirement of the Social Security Act. 20 C.F.R. §
416.920(a)(4)(ii). The step 2 requirement of “severe” impairment imposes a de minimis
burden, designed merely to screen groundless claims. McDonald v. Sec’y of HHS, 795
F.2d 1118, 1123 (1st Cir. 1986). An impairment or combination of impairments is not
severe when the medical evidence “establishes only a slight abnormality or combination of
2 Alcohol and drug abuse are significant in Plaintiff’s history, but are noted to be in remission and are
characterized as non-severe addiction disorders by Mary Burkhart, Ph.D. (R. 103.)
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. at 1124 (quoting Social Security Ruling 85–28). In other words, an
impairment is severe if it has more than a minimal impact on the claimant’s ability to
perform basic work activities on a regular and continuing basis. Id.
At step 2, medical evidence is required to support a finding of severe impairment.
20 C.F.R. § 404.1521. See also Social Security Ruling 96-3p (“Symptoms, such as pain,
fatigue, shortness of breath, weakness, or nervousness, will not be found to affect an
individual’s ability to do basic work activities unless the individual first establishes by
objective medical evidence (i.e., signs and laboratory findings) that he or she has a
medically determinable physical or mental impairment(s) and that the impairment(s) could
reasonably be expected to produce the alleged symptom(s).”) (citation omitted). A
diagnosis, standing alone, does not establish that the diagnosed impairment would have
more than a minimal impact on the performance of work activity. Dowell v. Colvin, No.
2:13-cv-00246-JDL, 2014 WL 3784237, at *3 (D. Me. July 31, 2014). Moreover, even
severe impairments may be rendered non-severe through the ameliorative influence of
medication and other forms of treatment. Parsons v. Astrue, No. 1:08-cv-218-JAW, 2009
WL 166552, at *2 n.2, aff'd, 2009 WL 361193.
Plaintiff alleged an onset of disability of December 2014. (Fact Sheet, ECF No. 13-
1.) The record includes the treatment records of Katherine Page, MSW, CSW, who began
treating Plaintiff in March 2016, with whom Plaintiff counseled for depression, post-
traumatic distress disorder, panic attacks, and anxiety. (Exs. 10F, 15F, 16F, 18F, 19F.)
Ms. Page diagnosed significant depression and anxiety, periodic panic attacks, and
agoraphobia. Consulting examiner James Werrbach, Ph.D., who saw Plaintiff in August
2016, diagnosed Plaintiff with post-traumatic stress disorder, panic disorder, generalized
anxiety disorder, and major depressive episode. (Ex. 8F.) Consulting examiner Mary
Burkhart, Ph.D., who reviewed the record (including Dr. Werrbach’s report and Ms. Page’s
treatment notes through November 2016) in connection with Plaintiff’s request for
reconsideration, found that the “treatment evidence does not report psychiatric dxs except
Alcohol Dependence,” but considered the listings associated with anxiety disorders and
affective disorders as part of her review. (R. 104.)
Ms. Page, Dr. Werrbach, and Dr. Burkhart all imposed limitations upon Plaintiff’s
ability to work due to the diagnosed mental health conditions, including Plaintiff’s anxiety
disorder, which limitations would have more than a minimal effect on Plaintiff’s work
activity. The ALJ, therefore, erred when he did not find that Plaintiff’s anxiety disorder
constitutes a severe impairment. 3
Remand, however, is only appropriate when the claimant can demonstrate that an
omitted impairment imposes an additional restriction beyond those recognized in the
Commissioner’s RFC finding, and that the additional restriction is material to the ALJ’s
“not disabled” finding at step 4 or step 5. Socobasin v. Astrue, 882 F. Supp. 2d 137, 142
(D. Me. 2012) (citing Bolduc v. Astrue, No. 09–CV–220–B–W, 2010 WL 276280, at *4 n.
3 The ALJ observed that Plaintiff’s allegations of post-traumatic stress disorder relate to experiences in
childhood and young adulthood, but that Plaintiff worked in a substantial capacity for many years after the
events and has no treatment history until 2016. Dr. Burkhart did not credit the PTSD diagnosis.
3 (D. Me. Jan. 19, 2010) (“[A]n error at Step 2 is uniformly considered harmless, and thus
not to require remand, unless the plaintiff can demonstrate how the error would necessarily
change the outcome of the plaintiff’s claim.”)). The issue is thus whether the ALJ’s RFC
adequately addressed the anxiety-related limitations.
B. RFC Finding
Plaintiff argues he is unable to concentrate on simple work throughout a workday
or attend work on a regular schedule, allegedly as the result of pain and
cognitive/anxiety/depressive symptoms. The ALJ found that despite Plaintiff’s mental and
physical impairments, Plaintiff did not demonstrate “conditions that preclude all work.”
(R. 17.)
The ALJ reasonably accounted for Plaintiff’s allegations of debilitating chronic
pain, observing that the consultants of record did not find the evidence of physical
dysfunction persuasive. (R. 17-18.) The ALJ supportably gave this evidence great weight.4
As explained below, the ALJ also supportably found Plaintiff had work capacity despite
his mental impairment.
Dr. Werrbach, who did not make a formal mental RFC assessment, determined that
Plaintiff would have difficulty performing even simple tasks as he described Plaintiff as
“limited somewhat” in concentration and persistence and highly distrustful of others. (R.
4 To the extent Plaintiff suggests that the RFC finding failed to account adequately for his experience of
chronic pain (Statement of Errors at 9 (caption of argument II), 13), the ALJ restricted Plaintiff to light
work despite a history of heavy and medium work and imposed some postural and environmental
restrictions, even though consulting reviewers regard Plaintiff’s physical impairment as non-severe (Ex.
4A, R. 92; Ex. 6A, R. 102) and Plaintiff’s treatment provider as of August 2016 indicated that she did not
“have any reason to consider him disabled.” (Ex. 17F, R. 648.)
543.) Dr. Burkhart, who reviewed Dr. Werrbach’s findings, regarded Plaintiff’s anxiety to
be his most significant mental impairment after borderline intellectual function. (R. 103.)
In her mental RFC assessment at the reconsideration stage, Dr. Burkhart found that Plaintiff
can understand and remember simple instructions and tasks, carry out simple tasks for two-
hour blocks over the course of a normal workday/week, interact with coworkers and
supervisors (but not the public on a frequent basis), and adapt to simple changes. (R. 106-
107.) In her RFC assessment, Ms. Page found Plaintiff to be markedly limited in multiple
areas, including his ability to understand and learn terms, to make work decisions, to handle
conflicts with others, to adapt to changes, and to sustain an ordinary routine and regular
attendance at work. (R. 661-62.)
After noting that Thomas Knox, Ph.D., a state agency consultant who reviewed the
medical record at the initial determination stage, found no severe mental impairment, and
after acknowledging that Dr. Burkhart determined Plaintiff to be limited in understanding
and memory, sustained concentration and persistence, social interaction, and adaption, the
ALJ observed that the “medical consultants’ mental assessments are given weight only to
the extent that the opinions are consistent with the above residual functional capacity.” (R.
18.) The ALJ then gave great weight to Dr. Burkhart’s mental RFC opinion. (Id.) The
ALJ gave little weight to Dr. Werrbach’s opinion that Plaintiff’s ability to interact socially
with others and adapt to new social situations appeared to be “highly impaired.” (Id.) The
ALJ characterized Ms. Page’s opinion concerning Plaintiff’s mental limitations as
“exaggerated considering other opinions and the remaining medical evidence of record.”
(R. 18; Exs. 18F, 19F.)
To the extent the ALJ found Plaintiff able to concentrate on work throughout the
workday and attend work on a normal schedule, the finding is supported by Dr. Burkhart’s
mental RFC assessment. However, to the extent the ALJ determined that Plaintiff has the
ability to perform unskilled work involving occasional decision-making and public
interaction (R. 15), the ALJ’s finding requires more scrutiny given that the finding does
not appear to contemplate that Plaintiff is limited to a subset of “simple” work, a limitation
consistently identified by the medical experts of record who considered Plaintiff’s mental
health condition to constitute a severe impairment.
Regardless of the weight the ALJ afforded to each medical opinion, a fair reading
of all the medical opinions, including the opinion to which the ALJ afforded great weight
(i.e., the opinion of Dr. Burkhart), reveals that the medical experts agree that a “simple
work” restriction is warranted. The ALJ’s omission of a “simple work” restriction from
the RFC is thus not supportable and, therefore, the RFC, as written, does not adequately
account for Plaintiff’s anxiety-related limitations. Such a finding, however, does not
conclude the assessment of whether the Step 2 error is harmless.
At the hearing, the ALJ incorporated the simple work restriction into the
hypothetical RFC posed to the vocational expert. All the jobs cited by the ALJ in support
of the step 5 determination were provided by the vocational expert in response to a request
for jobs involving “simple, routine, repetitive tasks in a work environment free of fast
paced production requirements involving only simple work-related decision with, if any,
workplace changes [sic]” and “no more than occasional interaction with the public.” (Hr’g
Tr. at 35-36, R. 71-72.) 5 In his question of the vocational expert, therefore, the ALJ
included a simple work restriction even though the restriction was not included in the ALJ’s
RFC.
Because a person with a simple work restriction could perform all the jobs identified
by the vocational expert, the ALJ’s failure to include the simple work restriction in
Plaintiff’s RFC does not warrant remand. The ALJ’s determination that Plaintiff is not
disabled is thus supported by substantial evidence on the record.
CONCLUSION
Based on the foregoing analysis, I recommend the Court affirm the administrative
decision.
NOTICE
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, within fourteen
(14) days of being served with a copy thereof. A responsive memorandum
and any request shall be filed within fourteen (14) days after the filing of the
objection.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court's order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 16th day of July, 2019.
5 Dr. Burkhart’s RFC opinion, considered with the ALJ’s further discussion of the longitudinal record,
Plaintiff’s history of working alongside others, and Plaintiff’s activities of daily living, provides substantial
evidence to support the ALJ’s hypothetical concerning a claimant capable of sustaining work effort at
“simple” unskilled tasks requiring no more than occasional decision-making and public interaction.
Although the record contains contradictory opinion evidence from Ms. Page, the ALJ supportably
discounted Ms. Page’s opinion concerning Plaintiff’s mental limitations. (R. 18; Exs. 18F, 19F.)