HESSON v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 23

ORDER AFFIRMING RECOMMENDED DECISION OF THE MAGISTRATE JUDGE adopting Report and Recommended Decision re 18 Report and Recommendations. By JUDGE D. BROCK HORNBY. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JOHN HESSON,
PLAINTIFF
V.

CAROLYN W. COLVIN, ACTING
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
DEFENDANT

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CIVIL NO. 2:15-CV-106-DBH

ORDER AFFIRMING RECOMMENDED DECISION
OF THE MAGISTRATE JUDGE
On September 29, 2015, the United States Magistrate Judge filed with the
court, with copies to counsel, his Report and Recommended Decision.

The

plaintiff filed an objection to the Recommended Decision on October 7, 2015. I
held oral argument on November 12, 2015. I have reviewed and considered the
Recommended Decision, together with the entire record; I have made a de novo
determination of all matters adjudicated by the Recommended Decision; and I
concur with the recommendations of the United States Magistrate Judge for the
reasons set forth in the Recommended Decision, as elaborated below, and
determine that no further proceeding is necessary.
In addition to the United States Magistrate Judge’s thorough explanation
of why remand is not appropriate in this case despite the Administrative Law
Judge’s (ALJ) error in finding that the plaintiff had no medically determinable
back impairment, I add the following.

Contrary to the plaintiff’s position at oral argument, Socobasin v. Astrue,
882 F.Supp.2d 137 (D. Me. 2012), is not directly analogous to this case. In
Socobasin, the magistrate judge determined that the ALJ’s error in determining
the plaintiff’s impairment was non-severe was not harmless because “the record
would have been devoid of any expert opinion regarding functional limitations
imposed by the plaintiff’s [ ] impairment.” Id. at 142. Thus, “[t]he determination
of the plaintiff’s [ ] RCF, in the absence of an expert opinion . . . .would have
exceeded the administrative law judge’s competence as a layperson.” Id.
Even though the ALJ in this case erred in not finding that the plaintiff had
a medically determinable back impairment, and even assuming, arguendo, that
such impairment was “severe” for the purposes of meeting the plaintiff’s de
minimis burden at step 2, see Ramos v. Barnhart, 60 F. App’x 334, 335 (1st Cir.
2003), the record is not “devoid of any expert opinion regarding functional
limitations,” Socobasin, 882 F.Supp.2d at 142, for the purpose of determining
the plaintiff’s residual functional capacity at step 4. See Freeman v. Barnhart,
No. 2:02-cv-78-DBH, 2002 WL 31599017, at *6 (D. Me. Nov. 20, 2002) report
and recommendation adopted, 2002 WL 31855278 (D. Me. Dec. 19, 2002) (“[A]
finding that an impairment passes muster at Step 2 is not necessarily
inconsistent with a finding upon closer examination at Step 4 that the same
impairment does not restrict RFC in a manner ultimately worthy of mention.”).
Rather, the medical evidence considered by the ALJ, including Dr.
Buxton’s examination report—which occurred after the plaintiff’s MRI in
December 2012—was simply not indicative of any functional limitations imposed
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by the plaintiff’s medically determinable back impairment—severe or not. See
20 C.F.R. § 404.1523 (specifying that when an ALJ assesses a claimant’s
residual functional capacity at step 4, all impairments—both severe and nonsevere—are considered). It was the plaintiff’s burden of proof to provide such
evidence:
At the point in the sequential evaluation process at which an
applicant’s residual functional capacity is determined, the
burden of proof remains with the applicant. If the applicant
has not submitted any medical evidence to support a more
restricted residual functional capacity than that assigned by
the administrative law judge, he or she is not entitled to a
remand merely because the administrative law judge made a
determination on the basis of what evidence was available to
him or her.

Gonsalves v. Astrue, No. 1:09-cv-181-JAW, 2010 WL 1935753, at *6 (D. Me.
May 10, 2010) report and recommendation adopted, 2010 WL 2540945 (D. Me.
June 16, 2010); see also Rodriguez v. Sec’y of Health & Human Servs., 923 F.2d
840 (1st Cir. 1990).
It is therefore ORDERED that the Recommended Decision of the Magistrate
Judge is hereby ADOPTED.
SO ORDERED.
DATED THIS 16TH DAY OF NOVEMBER, 2015
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

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