United States District Court, D. New Hampshire
McCafferty, United States District Judge.
Arseneau seeks judicial review, pursuant to 42 U.S.C. §
405(g), of the decision of the Acting Commissioner of the
Social Security Administration, denying her application for
disability insurance benefits. Arseneau moves to reverse the
Acting Commissioner's decision, and the Acting
Commissioner moves to affirm. For the reasons discussed
below, the decision of the Acting Commissioner is affirmed.
reviewing the final decision of the Acting Commissioner in a
social security case, the court “is limited to
determining whether the [Administrative Law Judge] deployed
the proper legal standards and found facts upon the proper
quantum of evidence.” Nguyen v. Chater, 172
F.3d 31, 35 (1st Cir. 1999); accord Seavey v.
Barnhart, 276 F.3d 1, 9 (1st Cir. 2001). The court
defers to the ALJ's factual findings as long as they are
supported by substantial evidence. 42 U.S.C. § 405(g);
see also Fischer v. Colvin, 831 F.3d 31, 34 (1st
Cir. 2016). “Substantial evidence is more than a
scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Astralis Condo. Ass'n v. Sec'y Dep't of
Housing & Urban Dev., 620 F.3d 62, 66 (1st Cir.
determining whether a claimant is disabled, the ALJ follows a
five-step sequential analysis. 20 C.F.R. §
404.1520(a)(4). The claimant “has the burden of
production and proof at the first four steps of the
process.” Freeman v. Barnhart, 274 F.3d 606,
608 (1st Cir. 2001). The first three steps are (1)
determining whether the claimant is engaged in substantial
gainful activity; (2) determining whether she has a severe
impairment; and (3) determining whether the impairment meets
or equals a listed impairment. 20 C.F.R. §
fourth step of the sequential analysis, the ALJ assesses the
claimant's residual functional capacity
(“RFC”), which is a determination of the most a
person can do in a work setting despite her limitations
caused by impairments, Id. § 404.1545(a)(1),
and her past relevant work, id. § 404.1520(a)(4)(iv). If
the claimant can perform her past relevant work, the ALJ will
find that the claimant is not disabled. See Id.
§ 404.1520(a)(4)(iv). If the claimant cannot perform her
past relevant work, the ALJ proceeds to Step Five, in which
the ALJ has the burden of showing that jobs exist in the
economy which the claimant can do in light of the RFC
assessment. See Id. § 404.1520(a)(4)(v).
detailed statement of the facts can be found in the
parties' Joint Statement of Material Facts (doc. no.
13). The court provides a brief summary of the case
September 22, 2014, Arseneau filed an application for
disability insurance benefits, alleging a disability onset
date of June 6, 2014, when she was 51 years old. She alleged
a disability due to a benign brain tumor and Meniere's
disease, an inner ear disorder that can cause symptoms such
as hearing loss, vertigo, and dizziness.
Arseneau's claim was denied, she requested a hearing in
front of an ALJ. On March 8, 2016, the ALJ held a hearing.
Arseneau, who was represented by an attorney, appeared and
testified by video.
March 30, 2016, the ALJ issued an unfavorable decision. She
found that Arseneau had the following severe impairments:
diabetes mellitus, benign positional vertigo, hypertension,
bilateral low frequency hearing loss, obesity, and
fibromyalgia. The ALJ also found that Arseneau's
obstructive sleep apnea, benign brain tumor, and
osteoarthritis of the knee were not severe impairments. She
further found that Arseneau had the residual functional
capacity to perform light work, as defined in 20 C.F.R.
§ 404.1567(b), with certain limitations.
assessing Arseneau's residual functional capacity, the
ALJ gave significant weight to the opinion of Dr. Natacha
Sochat, a state agency physician who reviewed Arseneau's
medical records. The ALJ ultimately adopted a more
restrictive RFC assessment than was contained in Dr.
C. Laflamme, an impartial vocational expert, testified at the
hearing. In response to hypotheticals posed by the ALJ,
Laflamme testified that a person with Arseneau's RFC
could perform jobs that exist in significant No. in the
national economy, including price marker, laundry classifier,
and mail room clerk. Based on Laflamme's testimony, the
ALJ found at Step Five that Arseneau was not disabled.
10, 2017, the Appeals Council denied Arseneau's request
for review, making the ALJ's decision the Acting
Commissioner's final decision. This action followed.
raises three broad claims of error on appeal. She argues that
the ALJ erred in (1) evaluating the severity and effect of
Arseneau's impairments, (2) evaluating Arseneau's
subjective complaints and symptoms, and (3) weighing the
medical opinions in the record. The court addresses each
contends that the ALJ erred at Step Two in finding that her
bilateral knee pain, sleep apnea, and depression were not
severe impairments. She also argues that the ALJ erred in
failing to consider the effects of Arseneau's obesity on
her RFC assessment, despite the ALJ finding that it was a
Two - Severe Impairments At Step Two, the ALJ determines
based on the record evidence whether the claimant has one or
more medically determinable impairments that are severe. 20
C.F.R. § 404.1520(a)(ii). An impairment or a combination
of impairments is severe at Step Two if it
“significantly limits [the claimant's] physical or
mental ability to do basic work activities.”
Id. § 404.1520(c). It is the claimant's
burden at Step Two to show that she has a medically
determinable severe impairment. Bowen v. Yuckert,
482 U.S. 137, 146, 149 (1987).
Bilateral Knee Pain
decision, the ALJ addressed Arseneau's complaints of
bilateral knee pain. The ALJ noted that an MRI of
Arseneau's knee revealed “some really minor
degenerative changes” and that Arseneau testified at
the hearing that her knee pain had improved with cortisone
injections. Admin. Rec. at 48. The ALJ concluded that
Arseneau's bilateral knee pain was therefore non-severe.
contends that the ALJ erred in making that determination
because Arseneau testified that her knee pain was going to be
reevaluated in “a few months” and that “if
the pain starts to come back again we'll go into MRI and
seeing the possibilities if there's a need for
surgery.” Doc. no. 10-1 at 4. She also notes
that medical records showed that she had fallen several times
because of Meniere's disease, including one time when she
landed on her knees and “significantly injured her left
patella.” Id. at 5.
has not shown that the ALJ committed error at Step Two
regarding her bilateral knee pain. The fall she references
occurred in March 2014, see Admin. Rec. 361-63, before she
received the cortisone injections that she testified helped
her knee pain. In addition, her testimony that she could
eventually need surgery if her knee pain returns is
insufficient to show that her knee pain was severe during the
relevant time, particularly because she points to no evidence
in the record that her symptoms persisted after her cortisone
injections. See Leech v. Berryhill, No.
2:16-CV-00487-GZS, 2017 WL 2817023, at *4 (D. Me. June 28,
2017), report and recommendation adopted by 2017 WL 3185154
(D. Me. July 26, 2017) (noting that reliance on
speculation as to the future effect of an impairment is
insufficient to show reversible error at Step Two).
Therefore, Arseneau has not shown that the ALJ erred in her
Step Two determination with regard to Arseneau's
bilateral knee pain.
found that Arseneau's sleep apnea was not a severe
impairment, noting that the condition is “generally
well corralled with use of a CPAP machine.” Admin. Rec.
at 48. Arseneau contends that this finding was in error
because she testified that she continues to experience
fatigue even with the use of a CPAP machine, and her medical
records show that she complained about her fatigue
only medical record Arseneau cites concerning her sleep apnea
is a March 2014 progress note from Dartmouth-Hitchcock
Medical Center. This note contains Arseneau's subjective
complaints about her sleep apnea without any medical evidence
to corroborate her symptoms. A claimant's subjective
complaints alone, however, do not provide a basis for an
impairment. See 20 C.F.R. § 404.1528 (A claimant's
“statements alone are not enough to establish that
there is a physical or mental
impairment.”); see also Durgin v. Berryhill, No.
2:17-CV-00241-DBH, 2018 WL 1532668, at *4 (D. Me. Mar. 28,
2018), report and recommendation adopted by 2018 WL 2108012
(D. Me. May 7, 2018) (noting that statements in medical
record reflecting plaintiff's subjective reports are not
medical opinions). Further, a “claimant has the burden
to show that any error at Step Two is outcome
determinative.” Chabot v. U.S. Soc. Sec.
Admin., No. 13-cv-126-PB, 2014 WL 2106498, at *10
(D.N.H. May 20, 2014). Thus, even if the ALJ had not properly
evaluated Arseneau's sleep apnea, any error is harmless
because Arseneau has not pointed to any medical evidence to
show that the diagnosis caused any functional ...