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finding a Step Two error harmless when the ALJ considered all symptoms "both severe and non-severe, in assessing Plaintiff's residual functional capacity and there is no indication that the ALJ failed to consider the cumulative effect of those impairments"
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Civil Action No. 11-30074-KPN
12-07-2011
JUAN CARLOS PEREZ, Plaintiff v. MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Defendant
MEMORANDUM AND ORDER REGARDING PLAINTIFF'S MOTION FOR ORDER REVERSING DECISION OF COMMISSIONER, OR, IN THE ALTERNATIVE, TO REMAND and DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER (Document Nos. 13 and 17)
This is an action for judicial review of a final decision by the Commissioner of the Social Security Administration ("Commissioner") regarding an individual's entitlement to Social Security Disability Insurance ("SSDI") benefits and Supplemental Security Income ("SSI") pursuant to 42 U.S.C. §§ 405(g) and 1381(c)(3). Juan Carlos Perez ("Plaintiff") asserts that the Commissioner's decision denying him such benefits -- memorialized in a September 24, 2010 decision of an administrative law judge -- is not supported by substantial evidence. He has filed a motion to reverse or remand and the Commissioner, in turn, has moved to affirm.
The parties have consented to this court's jurisdiction. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. For the following reasons, the court will allow the Commissioner's motion to affirm and deny Plaintiff's motion to reverse and remand.
I. STANDARD OF REVIEW
A court may not disturb the Commissioner's decision if it is grounded in substantial evidence. See 42 U.S.C. §§ 405(g) and 1383(c)(3). Substantial evidence is such relevant evidence as a reasonable mind accepts as adequate to support a conclusion. Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981). The Supreme Court has defined substantial evidence as "more than a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Thus, even if the administrative record could support multiple conclusions, a court must uphold the Commissioner's findings "if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion." Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (citation and internal quotation marks omitted).
The resolution of conflicts in evidence and the determination of credibility are for the Commissioner, not for doctors or the courts. Rodriguez, 647 F.2d at 222; Evangelista v. Sec'y of Health & Human Servs., 826 F.2d 136, 141 (1st Cir. 1987). A denial of benefits, however, will not be upheld if there has been an error of law in the evaluation of a particular claim. See Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In the end, the court maintains the power, in appropriate circumstances, "to enter . . . a judgment affirming, modifying, or reversing the [Commissioner's] decision" or to "remand [ ] the cause for a rehearing." 42 U.S.C. § 405(g).
II. BACKGROUND
Plaintiff filed for SSDI and SSI benefits on May 14, 2009. (Administrative Record ("A.R") at 151-66.) Plaintiff claimed that he was disabled due to chronic back pain and arthritis in his knees, hands and feet, as well as depression and Hepatitis C. (A.R. at 10-11, 13.) After Plaintiff's claim was denied both initially and upon reconsideration, he requested a hearing before an administrative law judge ("ALJ"). The hearing was held on August 12, 2010, at which time both Plaintiff and a vocational expert testified. (A.R. at 43.)
Plaintiff, fifty years old at the time of the hearing, testified that, although he injured his back at work, his employer placed him on light duty so that he could continue working at the wire plant. (A.R. at 15-16.) Plaintiff explained that light duty involved working as a welder for eight hours a day with the ability to sit or stand at will, elaborating that he would normally stand up every half hour. (Id.) Plaintiff continued to work as a welder until the plant closed but did not thereafter attempt to look for work because the pain was becoming worse and he began to suffer from dizzy spells due to his medication. (A.R. at 16-17.)
In a decision dated September 24, 2010, the ALJ denied Plaintiff's claim. (A.R. at 43-52.) The ALJ found that, although Plaintiff's degenerative disc disease and depression were severe impairments, she could not fully credit Plaintiff's subjective complaints regarding his pain and found insufficient objective evidence to support his testimony regarding the severity of the symptoms. (A.R. at 47-51.) Based on these findings and the medical evidence in the record, the ALJ concluded that Plaintiff was not disabled because he was "capable of making a successful adjustment to other work that exists in significant numbers in the national economy." (A.R. at 51.)
Plaintiff was initially informed that the Commissioner's Decision Review Board had selected the ALJ's decision for review. (A.R. at 1.) However, because the Board failed to complete its review within the ninety days allotted, Plaintiff was notified that the ALJ's decision was the final decision of the Social Security Administration. (A.R. at 1-3.) In due course, Plaintiff filed the instant action, the Commissioner compiled the administrative record, and the parties submitted the cross-motions presently at issue.
III. DISABILITY STANDARD AND THE ALJ'S DECISION
An individual is entitled to SSDI benefits if, among other things, he has an insured status and, prior to its expiration, is disabled. See 42 U.S.C. § 423(a)(1)(A) and (D). Entitlement to SSI, on the other hand, requires a showing of both disability and financial need. See 42 U.S.C. § 1381a. Plaintiff's need, for purposes of SSI, and his insured status, for purposes of SSDI, are not challenged.
The Social Security Act (the "Act") defines disability, in part, as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). See also 42 U.S.C. § 1382c(a)(3)(A) (similar). . An individual is considered disabled under the Act
only if his physical and mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B). See generally Bowen v. Yuckert, 482 U.S. 137, 146-49 (1987).
In determining disability, the Commissioner follows the five-step protocol described by the First Circuit as follows:
First, is the claimant currently employed? If he is, the claimant is automatically considered not disabled.
Second, does the claimant have a severe impairment? A "severe impairment" means an impairment "which significantly limits the claimant's physical or mental capacity to perform basic work-related functions." If he does not have an impairment of at least this degree of severity, he is automatically not disabled.
Third, does the claimant have an impairment equivalent to a specific list of impairments in the regulations' Appendix 1? If the claimant has an impairment of so serious a degree of severity, the claimant is automatically found disabled.
. . . .
Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982).
Fourth . . . does the claimant's impairment prevent him from performing work of the sort he has done in the past? If not, he is not disabled. If so, the agency asks the fifth question.
Fifth, does the claimant's impairment prevent him from performing other work of the sort found in the economy? If so he is disabled; if not he is not disabled.
In the instant case, the ALJ found as follows with respect to these questions: Plaintiff had not engaged in substantial gainful activity since the alleged onset of his disability (question 1); he has impairments which are "severe," namely, degenerative disc disease and depression, but those impairments do not meet or medically equal one of the listed impairments in 20 C.F.R Part 404, Subpart P, Appendix 1 (questions 2 and 3); and he has the residual functional capacity to perform certain forms of light work (questions 4 and 5). Accordingly, the ALJ determined that Plaintiff was not disabled. (A.R. at 45-52.)
IV. DISCUSSION
In essence, Plaintiff argues that the ALJ failed to properly characterize certain impairments as severe and improperly afforded greater weight to opinions of stage agency physicians than to the opinion of his treating physician. In response, the Commissioner asserts, and the court agrees, that the record supports the ALJ's conclusion.
As an initial matter, Plaintiff seems to suggest that the ALJ erroneously concluded that his impairments did not meet or equal a listed impairment in 20 C.F.R Part 404, Subpart P, Appendix 1. However, aside from his own bald assertion that the ALJ "erred in failing to fully evaluate the mental impairment . . . and the listing of impairments and to then document the procedure," Plaintiff points to no evidence in the record -- and the court is aware of none -- which indicates that his impairments reach listing-level severity. See Torres v. Sec'y of Health and Human Servs., 870 F.2d 742, 745 (1st Cir. 1989) ("[I]t is the claimant's burden to show that he has an impairment or impairments which meets or equal a listed impairment in Appendix 1.").
Plaintiff also argues that the ALJ erred by failing to find that his anxiety, Hepatitis C and arthritis constituted severe impairments. However, at least with regard to his Hepatitis C, his own attorney stated at the administrative hearing that Plaintiff was not receiving any treatment for the illness and, despite some fatigue, does not "really feel[ ] the effect of the Hepatitis C that greatly." (A.R. at 11-12.) To be sure, Plaintiff is correct that the ALJ did not specifically analyze at step two whether his arthritis would constitute a severe impairment. Any error in that regard was harmless, however, as the ALJ explicitly considered "all symptoms," both severe and non-severe, in assessing Plaintiff's residual functional capacity and there is no indication that the ALJ failed to consider the cumulative effect of these impairments. (A.R. at 47, 49, 282-83); see also Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) (concluding that "any error [regarding the severity analysis at step two] became harmless when the ALJ reached the proper conclusion that [plaintiff] could not be denied benefits conclusively at step two and proceeded to the next step of the evaluation sequence"); Burgin v. Comm'r of Soc. Sec., 2011 WL 1170733, at *1 (11th Cir. Mar. 30, 2011) (finding harmless the administrative law judge's failure to characterize at step two certain impairments as severe because "[t]he finding of any severe impairment, based on either a single impairment or a combination of impairments is enough to satisfy step two" and "the ALJ considered all of [plaintiff's] impairments in combination at later steps in the evaluation process.").
Plaintiff also takes aim at the ALJ's decision to accord greater weight to the state agency assessments performed by Drs. Romany Hakeem Girgis and Ludmila Perel than to the medical opinion of his treating physician, Dr. Daniel Dress. Plaintiff, it should be noted, does not challenge the ALJ's characterization of the state physicians' findings; he simply argues that Drs. Girgis's and Perel's opinions are not entitled to great weight because they did not have an opportunity to review any of Plaintiff's medical records submitted after their August and November of 2009 assessments.
The court finds Plaintiff's attempts to oppugn the state agency assessments unavailing. Plaintiff refers to no specific evidence -- aside from Dr. Dress's opinion which, for the reasons below, the ALJ chose not to credit -- which would undermine those assessments. To the contrary, as the ALJ noted, the record indicates that Plaintiff's symptoms actually improved after Dr. Girgis made his assessment in August 2009 as a result of therapeutic injections for his back pain and that Plaintiff's physical examinations consistently yielded significant normal findings. (A.R. at 49-50.) As Plaintiff's later medical records support the state physicians' conclusions, the ALJ reasonably relied on these assessments in making her determination.
As to not according controlling weight to Dr. Dress's opinion, the ALJ found that, contrary to the conclusions contained in his residual functional capacity form, Dr. Dress's treatment notes contain no reference to any limitations imposed on Plaintiff. In particular, the ALJ noted, Dr. Dress's notes contain nothing that would support his view that Plaintiff would need to miss four days of work each month or would require an option to lie down, as well as sit and stand. Indeed, according to Plaintiff's own testimony, he was able to engage in light duty following his back injury until his employer decided to close the plant. In light of these findings and the record evidence conflicting with Dr. Dress's opinion, the ALJ, in the court's opinion, reasonably accorded Dr. Dress's opinion diminished weight.
Persevering, Plaintiff argues that the ALJ erroneously relied on a report by Dr. Caroline Cole which found insufficient evidence of a severe mental condition. Plaintiff asserts that the insufficiency was not due to an examination of Plaintiff but, rather, to the fact that attempts to contact him were unsuccessful and that there was no evidence of his mental condition in the record at the time. First, Plaintiff's argument, in the court's opinion, is unpersuasive as the extent to which the ALJ actually relied on Dr. Cole's assessment is unclear. Second, and more to the point, the ALJ actually found that Plaintiff suffered from severe depression, noted that the depression affected his ability to concentrate, and limited his work to jobs involving simple instructions and limited interaction with the public. This was also reflected in the series of hypothetical questions posed by the ALJ to the vocational expert.
The first hypothetical involved an individual with Plaintiff's age, education and work experience, who is limited to light exertion, lifting twenty pounds occasionally and ten pounds frequently and sitting, standing, and/or walking for a total of six hours in a day. (A.R. at 26.) The ALJ added that the work not involve extreme temperature changes or hazards such as heights and machinery. (A.R. at 27.) In response, the vocational expert opined that an individual with such limitations could not perform any of Plaintiff's past relevant work but could work as an inserter, printed circuit board inspector, or small product assembler. (A.R. at 27-28.)
The ALJ then modified the hypothetical to include an individual with the same limitations previously identified but who would require a sit/stand option and where the work would involve simple and detailed instructions frequently, with no exposure to the general public and no limitations on minor routine changes in the workplace. (A.R. at 28-29.) In response, the vocational expert said that such an individual could not perform any of the previously mentioned jobs but could work as a greeter or an usher. (A.R. at 30.)
The ALJ concluded by asking the vocational expert whether any of the jobs mentioned in response to the first hypothetical could be performed by someone requiring frequent breaks of at least a half an hour, two to three times a day because of medication effects, and who needed to lay down because of pain. (A.R. at 30-31.) The vocational expert replied that such an individual would not be able to perform any of the jobs discussed. (A.R. at 31.) --------
Plaintiff not only ignores the ALJ's findings of severity in the first two hypotheticals but, as well, the consistency of those findings with limitations set forth in the record. In the end, the court finds, the ALJ's residual functional capacity findings regarding Plaintiff's physical and mental limitations are supported by substantial evidence in the record.
V. CONCLUSION
For the reasons stated, Plaintiff's motion to reverse or remand is DENIED and the Commissioner's motion to affirm is ALLOWED. SO ORDERED. DATED: December 7, 2011
/s/ Kenneth P. Neiman
KENNETH P. NEIMAN
U.S. Magistrate Judge