CAOUETTE v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
Filing
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REPORT AND RECOMMENDED DECISION re 8 Social Security Statement of Errors/Fact Sheet. Objections to R&R due by 11/20/2018. By MAGISTRATE JUDGE JOHN C. NIVISON. (MFS)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
LYNN C.,
Plaintiff
v.
SOCIAL SECURITY ADMINISTRATION
COMMISSIONER,
Defendant
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2:17-cv-00449-LEW
REPORT AND RECOMMENDED DECISION
On Plaintiff Lynn C.’s application for disability insurance benefits under Title II 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 November 9, 2016, decision of the
Administrative Law Judge. (ALJ Decision, ECF No. 6-2.)1 The ALJ’s decision tracks the
familiar five-step sequential evaluation process for analyzing social security disability
Because the Appeals Council found no reason to review the decision (R. 1), the Acting Commissioner’s
final decision is the ALJ’s decision.
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claims, 20 C.F.R. §§ 404.1520, 416.920.
The ALJ found that Plaintiff has severe, but non-listing-level impairments
consisting of “other and unspecified arthropathies,” diabetes mellitus, peripheral
neuropathy, and dermatitis. (ALJ Decision, R. 26, 29, ECF No. 6-2.) In her step 2
discussion, the ALJ concluded that Plaintiff has several non-severe impairments, including
carpal tunnel syndrome and psoriatic arthritis.2 (R. 27 – 29.) Based on her review of
Plaintiff’s symptoms3 and the medical evidence, the ALJ determined that Plaintiff has the
residual functional capacity (RFC) to perform light work, occasionally push or pull with
the right upper extremity, and occasionally climb ramps and stairs, balance, stoop, kneel,
crouch, and crawl, but cannot climb ladders, ropes, or scaffolds, or perform overhead work
with her right extremity.4 (R. 29.)
Based on the RFC finding, Plaintiff’s age on the date of hearing (52 years),
Plaintiff’s education and vocational background, and the testimony of a vocational expert,
the ALJ determined that Plaintiff is capable of performing past relevant, sedentary work as
an appointment clerk in a call center. (R. 35.) Accordingly, the ALJ found Plaintiff was
The ALJ also found that Plaintiff’s report of fibromyalgia is unpersuausive because, given the record
evidence, fibromyalgia is not a medically determinable impairment, and that Plaintiff does not have any
medically determinable mental impairment. Plaintiff has not challenged either assessment in her Statement
of Errors.
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Plaintiff asserts she is totally disabled by diabetes, arthritis, fibromyalgia, neuropathy, chronic pain in the
back, neck, shoulder, legs, knees, and hands, bilateral numbness in her extremeities, fatigue, lack of manual
dexterity, and medication-related fog. (R. 30 – 33; Hr’g Tr., ECF No. 6-2.)
In support of her RFC finding, the ALJ gave “greatest weight” to the expert medical opinions of reviewing
physicians acting on behalf of Disability Determination Services. (R. 35.) Based on her review of the
record, the ALJ discounted Plaintiff’s subjective complaints, a third party report by Plaintiff’s former
spouse, and medical opinions offered by two providers and a consultative examiner. (R. 33 – 34.)
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not disabled through the date of the ALJ’s decision, and denied Plaintiff’s claim. (R. 35 –
36.)
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 decision is not supported by substantial evidence because the
ALJ erroneously found that psoriatic arthritis and carpal tunnel syndrome are not severe
impairments. Plaintiff observes that appropriate consideration of the limitations associated
with the conditions (specifically, Plaintiff’s ability to handle objects) would rule out a
return to past relevant work, and that a restriction to sedentary work would dictate a finding
of disabled under Defendant’s Medical-Vocational Guidelines.
At step 2 of the sequential evaluation process, a claimant must demonstrate that he
or she has impairments that are “severe” from a vocational perspective, and that the
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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
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, to
constitute a severe impairment, the impairment must have 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).
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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, severe
impairments may be deemed non-severe through the ameliorative influence of medication
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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.
A. Carpal tunnel syndrome
The ALJ found the impairment related to Plaintiff’s carpal tunnel syndrome was not
severe because Plaintiff’s physical examinations were “negative for limitation of motion,
atrophy, decreased strength, and upper extremity motor, sensory, or reflex loss.” (R. 28,
citing Exs. 1F, 3F, 4F, 5F, 16F.)
Arthur Scott, M.D., a consultative examiner, assessed a decreased ranged of motion
in both wrists and a loss of strength in the right hand. (Ex. 5F, R. 295 – 96.) Additionally,
an EMG report prepared by Christopher Hughes, M.D., reflects “prolonged distal latency
and “mild to moderate” (left) and “moderate” (right) “slowing through the carpal tunnel.”
(Ex. 1F, R. 247.) The findings, however, do not necessarily establish that the condition
has more than a miminal impact on Plaintiff’s ability to perform basic work activities. The
overall record, including the absence of a surgery recommendation, Plaintiff’s July 2016
report to Dr. Hughes that numbness in her hands is better when she wears her braces (Ex.
16F), Dr. Hughes’ related, recent neurology exam, which fails to identify any motor
limitations in Plaintiff’s hands, and the assessment of Tom Dees, M.D., a consultative
expert, who found no limitations caused by carpal tunnel syndrome,5 contains substantial
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Plaintiff believes Dr. Dees overlooked the EMG report in Exhibit 1 and that the ALJ assessed the severity
of carpal tunnel syndrome on her own. (Statement of Errors at 2 – 3.) However, the record reviewed by
Dr. Dees included both the Hughes EMG study and Dr. Scott’s report. In fact, the reconsideration decision
that contains Dr. Dees’ opinion specifically states that the record contains an earlier finding of
“superimposed mild to moderate carpal tunnel syndrome.” (Ex. 3A, R. 93.) In the explanation portion of
his RFC opinion, Dr. Dees stated that the record contained “[n]o confirmation of carpal tunnel syndrome.”
(R. 96.)
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evidence in support of the ALJ’s determination that Plaintiff’s carpal tunnel syndrome is
not a severe impairment.
B. Psoriatic arthritis
The ALJ recognized that rheumatologist Brian Keroack, M.D., diagnosed psoriatic
inflammatory arthritis in 2008 (Ex. 13F), but questioned the significance of the diagnosis
because the symptom at the time was limited to “a swollen finger on the right hand, and
not on serologic findings.” (R. 27.) The ALJ concluded that other references to the
diagnosis merely reflect that the diagnosis continued in the medical history, but the record
since 2008 includes no other documented joint swelling and/or synovitis, or other
supportive diagnostic findings. (Id.)
Plaintiff argues the more recent records reinforce and demonstrate the significance
of the diagnosis, which records include the consultative exam of Dr. Scott (Ex. 5F), a
January 20, 2015 progress note from Leonic Temken, M.D. (Ex. 4F:1), and an October 30,
2015 progress note from Steven Petrin, N.P. (Ex. 10F:2). Plaintiff also contends Disability
Determination Services consulting physicians did not review all of the relevant medical
records related to psoriatic arthritis, specifically Dr. Keroack’s diagnosis and Nurse
Practitioner Petrin’s progress note. Plaintiff further argues that both the consultative
examiner, Dr. Scott, and Plaintiff’s provider, Christine Sullivan, M.D., would impose
restrictions related to handling and lifting based on the arthritis. (Statement of Errors 2.)
Finally, Plaintiff notes that Dr. Keroack found she was allergic to the preferred
medications. (Id.; Ex. 13F.)
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Plaintiff alleges an onset of disability in August 2014. (Fact Sheet, ECF No. 8.)
The ALJ permissibly concluded that Plaintiff had failed to demonstrate that the 2008
diagnosis for psoriatic arthritis in her right hand was a severe impairment in the relevant
time period.
First, the mere fact Dr. Keroack diagnosed the condition in 2008 is
insufficient, without more, to support the conclusion of a severe impairment. The evidence
that supports the ALJ’s determination consists of the October 2015, expert opinion of Dr.
Dees, who reviewed the medical record, including Dr. Keroack’s diagnosis, for Disability
Determination Services and specifically noted there was “[n]o confirmation of arthritis in
hands” and that “[t]he actual findings of arthritis are minimal in knees, nonexistent in
hands.”6 (Ex. 3A, R. 95.) Moreover, although Plaintiff has an allergy to the preferred
medication, there is no evidence to suggest medication was not beneficial, and Plaintiff
denied joint pain or swelling in April 2016. (Ex. 15F, R. 399.)7 None of the evidence
compels a determination that the psoriatic arthritis had more than a minimal impact on
Plaintiff’s ability to perform work activities. In short, the ALJ’s finding that Plaintiff’s
psoriatic arthritis is not a severe impairment is supported by substantial evidence on the
record.
Dr. Dees also considered the consultative examination report of Dr. Scott, including his “poor” prognosis
for Plaintiff’s polyarthritis. (Ex. 5F, R. 298.)
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The record of Igor Prokopiw, M.D. listed psoriatic arthritis as part of Plaintiff’s “past medical history,”
not as part of her “history of present illness.” (Ex. 15F, R. 397 – 98.) Dr. Prokopiw also noted the absence
of a skin rash or discoloration typically associated with psoriasis. Similarly, in 2013 a pain clinic provider
noted that Plaintiff “has a history of psoriatic arthritis which has been primarily managed with pain
medications.” (Ex. 4F, R. 277.)
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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, and request for oral
argument before the district judge, if any is sought, within fourteen (14) days
of being served with a copy thereof. A responsive memorandum and any
request for oral argument before the district judge 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 6th day of November, 2018.
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