MCFARLAND v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 19

REPORT AND RECOMMENDED DECISION re 11 Social Security Statement of Errors/Fact Sheet Objections to R&R due by 7/12/2019 By MAGISTRATE JUDGE JOHN H. RICH III. (sfw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
RYAN J. M.,
Plaintiff
v.
ANDREW M. SAUL,
Commissioner of Social Security,1
Defendant

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No. 1:18-cv-00246-JAW

REPORT AND RECOMMENDED DECISION2
This Social Security Disability (“SSD”) appeal raises the question of whether the
administrative law judge (“ALJ”) supportably found the plaintiff capable of performing work
existing in significant numbers in the national economy. The plaintiff seeks remand on the bases
that the ALJ erroneously (i) failed to consider evidence timely submitted in accordance with 20
C.F.R. § 404.935(a) and (ii) determined that had had no severe mental impairment. See Itemized
Statement of Specific Errors (“Statement of Errors”) (ECF No. 11) at 6-10. The commissioner
concedes both errors but contends that the plaintiff has failed to show that they were harmful. See
Defendant’s Opposition to Plaintiff’s Statement of Errors (“Opposition”) (ECF No. 15) at 2-11. I
agree and, accordingly, recommend that the court affirm the commissioner’s decision.

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Pursuant to Federal Rule of Civil Procedure 25(d), Andrew M. Saul is substituted as the defendant in this matter.
This action is properly brought under 42 U.S.C. § 405(g). The commissioner has admitted that the plaintiff has
exhausted his administrative remedies. The case is presented as a request for judicial review by this court pursuant to
Local Rule 16.3(a)(2), which requires the plaintiff to file an itemized statement of the specific errors upon which he
seeks reversal of the commissioner’s decision and to complete and file a fact sheet available at the Clerk’s Office, and
the commissioner to file a written opposition to the itemized statement. Oral argument was held before me pursuant
to Local Rule 16.3(a)(2)(D), requiring the parties to set forth at oral argument their respective positions with citations
to relevant statutes, regulations, case authority, and page references to the administrative record.
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Pursuant to the commissioner’s sequential evaluation process, 20 C.F.R. § 404.1520;
Goodermote v. Sec’y of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the ALJ found, in
relevant part, that the plaintiff met the insured status requirements of the Social Security Act
through December 31, 2021, Finding 1, Record at 31; that he had the severe impairments of
degenerative disc disease, bilateral hip degenerative joint disease, obesity, and bilateral knee
degenerative joint disease, which was severe in combination with his severe musculoskeletal
impairments and obesity, Finding 3, id. at 31-32; that he had the residual functional capacity
(“RFC”) to perform the full range of sedentary work as defined in 20 C.F.R. § 404.1567(a), Finding
5, id. at 37; that, considering his age (33 years old, defined as a younger individual, on his alleged
disability onset date, January 1, 2016), education (at least high school), work experience
(transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in
the national economy that he could perform, Findings 7-10, id. at 46; and that he, therefore, had
not been disabled from January 1, 2016, his alleged onset date of disability, through the date of the
decision, December 27, 2017, Finding 11, id. at 46-47. The Appeals Council declined to review
the decision, id. at 1-4, making the decision the final determination of the commissioner, 20 C.F.R.
§ 404.981; Dupuis v. Sec’y of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).
The standard of review of the commissioner’s decision is whether the determination made
is supported by substantial evidence. 42 U.S.C. § 405(g); Manso-Pizarro v. Sec’y of Health
& Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be
supported by such relevant evidence as a reasonable mind might accept as adequate to support the
conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Sec’y of Health
& Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

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The ALJ reached Step 5 of the sequential evaluation process, at which stage the burden of
proof shifts to the commissioner to show that a claimant can perform work other than his past
relevant work. 20 C.F.R. § 404.1520(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987);
Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the
commissioner’s findings regarding the plaintiff’s RFC to perform such other work. Rosado v.
Sec’y of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).
I. Discussion
A. Failure To Consider Evidence
The plaintiff first contends, and counsel for the commissioner conceded at oral argument,
that the ALJ erroneously declined to accept evidence on the basis that the plaintiff had failed either
to submit it at least five days prior to hearing pursuant to 20 C.F.R. § 404.935 or to argue that he
met any recognized exception to that so-called “five-day rule.” See Statement of Errors at 6-8.3
In his statement of errors, the plaintiff asserted that this error was harmful “because the
records in question consist of surgical consultations and operative reports from Sebasticook Valley
Health Center and physical therapy records from Advanced Health Physical Therapy in 2017, both
tending to show that [he] was more limited due to his physical impairments th[a]n was found by
the ALJ.” Id. at 8 (citing Record at 53-75, 76-82). He did not explain how. See id
As the commissioner argues, see Opposition at 3, this showing is insufficient to warrant
remand, see, e.g., Dax v. Colvin, No. 1:15-cv-21-JHR, 2015 WL 9473405, at *2 (D. Me. Dec. 28,
2015) (claimant who argued that ALJ committed reversible error in failing to admit evidence

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The version of 20 C.F.R. § 404.935 in effect at the relevant time provided that a claimant need only submit such
evidence, or inform the commissioner about it, no later than five business days before a scheduled hearing date. See
20 C.F.R. § 404.935(a). There is no dispute that the plaintiff informed the ALJ of the evidence at issue by the deadline
to do so. See Opposition at 2. The ALJ, thus, erred, in failing to consider the evidence, as did the Appeals Council in
finding that the plaintiff “did not have good cause for why [he] missed informing us about or submitting this evidence
earlier.” Record at 2.

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pursuant to five-day rule did not make “the showing of prejudice necessary to warrant reversal and
remand” when he did “not even address the question of how the contents of the report would
require, or even support, a different outcome on the merits of his claim”) (citation, internal
quotation marks, and footnote omitted).
At oral argument, the plaintiff’s counsel elaborated that the omitted evidence demonstrated
that his client had flares of lumbar-spine and knee pain requiring injections, which counsel
characterized as inconsistent with the ability to sustain sedentary work on an ongoing basis. He
asserted that this was so because the plaintiff reported that there were days on which he was not
able to engage in some of the activities on which the ALJ relied, such as working out at the gym,
and a vocational expert would testify that employers will not tolerate more than one unexcused
absence a month. As counsel for the commissioner rejoined, this remains too vague a showing on
which to predicate harmful error, the plaintiff having failed to explain how the omitted evidence
painted a materially different picture than the evidence on which the ALJ relied.
In any event, as the commissioner suggests, see Opposition at 3-8, the contents of the
omitted records comport with the ALJ’s finding that, while the plaintiff’s “symptoms have waxed
and waned, and while he has had some flares, they are generally associated with increased physical
exertion well in excess of a sedentary work capacity, and have generally responded well to
treatment[,]” Record at 39 (citations omitted). See, e.g., Record at 58 (November 24, 2017, report
by plaintiff that he was enrolled in a master’s degree of social work program through Simmons
College), 63 (August 11, 2017, report by plaintiff that an injection for back pain had worked,
resulting in an 80 to 85 percent improvement, and that he had been “more active[,]” including
participating in water aerobics and walking, although he did get increase in pain with his activities
and, therefore, “ha[d] been more careful about long-distance walking”), 79 (August 4, 2017, report

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by plaintiff of 95 percent improvement following course of physical therapy for right knee pain,
with pain when performing such activities as carrying laundry, walking long distances, or making
a quick twisting motion), 82 (October 26, 2017, report by plaintiff of 90 percent improvement
following course of physical therapy for right knee pain, left knee pain, and muscle spasm, with
greatest functional difficulty climbing stairs, getting in and out of car, getting off of floor, walking
on uneven ground, and walking longer than a half mile).
Remand, accordingly, is unwarranted on the basis of this point of error.
B. Erroneous Finding of No Severe Mental Impairment
The plaintiff next asserts, and the commissioner concedes, that the ALJ erroneously
determined that he had no severe mental impairment. See Statement of Errors at 8-10; Opposition
at 8. Nonetheless, as the commissioner asserts, see Opposition at 8-11, the error is harmless.
The ALJ relied on the so-called “Grid,” the Medical-Vocational Guidelines contained in
Appendix 2 to Subpart P, 20 C.F.R. § 404, to find the plaintiff capable of performing jobs existing
in significant numbers in the national economy. See Record at 46.
Use of the Grid is appropriate when a rule accurately describes an individual’s capabilities
and vocational profile. See, e.g., Heckler v. Campbell, 461 U.S. 458, 462 & n.5 (1983). When a
claimant’s impairments involve only limitations related to the exertional requirements of work, the
Grid provides a “streamlined” method by which the commissioner can meet his burden of showing
that there is other work a claimant can perform. See, e.g., Heggarty v. Sullivan, 947 F.2d 990, 995
(1st Cir. 1991). However, in cases in which a claimant suffers from nonexertional as well as
exertional impairments, the Grid may not accurately reflect the availability of other work he or she
can do. See, e.g., id. at 996; Ortiz v. Sec’y of Health & Human Servs., 890 F.2d 520, 524 (1st Cir.
1989). Whether the commissioner may rely on the Grid as a “framework” in these circumstances

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depends on whether a nonexertional impairment “significantly affects [a] claimant’s ability to
perform the full range of jobs” at the appropriate exertional level. Ortiz, 890 F.2d at 524 (citation
and internal quotation marks omitted).

If a nonexertional impairment is significant, the

commissioner generally may not rely on the Grid to meet his Step 5 burden but must employ other
means, typically use of a vocational expert. See, e.g., id.
Even in cases in which a nonexertional impairment is determined to be significant,
however, the commissioner may yet rely exclusively upon the Grid if “a non-strength impairment
. . . has the effect only of reducing that occupational base marginally[.]” Id. “[A]though a
nonexertional impairment can have a negligible effect, ordinarily the ALJ must back such a finding
of negligible effect with the evidence to substantiate it, unless the matter is self-evident.” Seavey
v. Barnhart, 276 F.3d 1, 7 (1st Cir. 2001) (citation and internal quotation marks omitted).
As the commissioner concedes, see Opposition at 8-9, in finding no severe mental
impairment, the ALJ erroneously relied on a March 2016 opinion of agency nonexamining
consultant Brian Stahl, Ph.D., completed in connection with an earlier claim, and erroneously
stated that agency nonexamining consultant John Petzelt, Ph.D., agreed with that opinion, see
Record at 34. In fact, all three agency nonexamining consultants who rendered opinions with
respect to the instant claim – Mary A. Burkhart, Ph.D., Dr. Petzelt, and Dr. Stahl in a December
2017 opinion – agreed that the plaintiff had a severe mental impairment and that he should not
have frequent public contact. See Opposition at 8-9.
Nonetheless, as the commissioner notes, see id. at 10, the ALJ found, in the alternative,
that “even if Dr. Burkhart’s restriction of no more than frequent contact with the public had been
adopted, it would not substantially erode the unskilled sedentary occupational base[,]” Record at
34 (citations omitted). At oral argument, the plaintiff’s counsel correctly observed that this

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alternative finding, as well, contained an error: Dr. Burkhart indicated that the plaintiff could have
no frequent contact with the public. See Record at 34. Nonetheless, this error, too, is harmless.
Even a preclusion from public contact does not undermine reliance on the Grid. See, e.g., GarciaMartinez v. Barnhart, 111 F. App’x 22, 23 (1st Cir. 2004); Littlefield v. Berryhill, No. 1:16-cv486-JCN, 2017 WL 2804898, at *4 (D. Me. June 28, 2017); Swormstedt v. Colvin, No. 2:13-cv00079-JAW, 2014 WL 1513347, at *6 (D. Me. Apr. 16, 2014).4
II. Conclusion
For the foregoing reasons, I recommend that the commissioner’s decision be AFFIRMED.
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 after being served with a copy thereof. A responsive memorandum
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.
Dated this 28th day of June, 2019.

/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

At oral argument, the plaintiff’s counsel disputed the harmlessness of the error, noting that, in Boyer v. Colvin, No.
15-2542, slip op. at 3 (1st Cir. Oct. 5, 2016), the First Circuit held remand warranted to determine whether a limitation
to no more than occasional public contact impaired a claimant’s ability to perform the full range of unskilled work
identified in the Grid. As counsel for the commissioner rejoined, this court rejected a similar argument in Davenport
v. Berryhill, No. 1:16-cv-00420-NT, 2017 WL 2731304 (D. Me. June 25, 2017) (rec. dec., aff’d Sept. 29, 2017),
explaining that, “[t]o the extent that the [First Circuit in Boyer] remanded the case for a discussion of whether the
public interaction limitation affected the ALJ’s reliance on the Grid, the result should be limited to the unique
circumstances of the case, where the ALJ’s purported Step 5 grounds were inaccurate, and thus unclear.” Davenport,
2017 WL 2731304, at *4. In this case, as in Davenport, the ALJ made clear that he relied on the Grid. Compare id.
at *1 with Record at 46.
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