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Arseneau v. Berryhill

United States District Court, D. New Hampshire

August 14, 2018

Doreen Ratliff Arseneau
v.
Nancy A. Berryhill, Acting Commissioner of Social Security

          ORDER

          Landya McCafferty, United States District Judge.

         Doreen 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.

         STANDARD OF REVIEW

         In 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. 2010).

         In 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. § 404.1520(a)(4)(i)-(iii).

         At the 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).

         BACKGROUND

         A 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 here.

         On 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.

         After 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.

         On 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.

         In 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. Sochat's opinion.[1]

         Elizabeth 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.

         On July 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.

         DISCUSSION

         Arseneau 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 argument below.

         I. Arseneau's Impairments

         Arseneau contends that the ALJ erred at Step Two in finding that her bilateral knee pain, sleep apnea, and depression were not severe impairments.[2] 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 severe impairment.

         A. Step 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).

         1. Bilateral Knee Pain

         In her 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.

         Arseneau 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.

         Arseneau 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.[3] 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.

         2. Sleep Apnea

         The ALJ 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 consistently.

         The 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.”);[4] 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 ...


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