Sullivan v. Berryhill

317 F. Supp. 3d 658
CourtDistrict Court, District of Columbia
DecidedJuly 10, 2018
DocketCIVIL ACTION NO. 17–10379–RWZ
StatusPublished
Cited by3 cases

This text of 317 F. Supp. 3d 658 (Sullivan v. Berryhill) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sullivan v. Berryhill, 317 F. Supp. 3d 658 (D.D.C. 2018).

Opinion

Id. at 24. The ALJ explained that he "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence," and that he "also considered opinion evidence" in accordance with the Social Security regulations. Id. He ultimately concluded that although plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms ... [his] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible." Id. at 31.

At the fourth step, the ALJ concluded that the plaintiff is unable to perform any past relevant work. But at step five, the ALJ determined, based on the VE's testimony, "that, considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform." Id. at 33. The VE testified that the claimant could perform representative occupations such as order filler, cashier, electrical assembler, and merchandise tagger. Crediting this testimony, the ALJ concluded that the claimant was not disabled.

C. The Appeal

Plaintiff appealed the ALJ's decision to the Social Security Administration's Appeals Council, which denied review on February 6, 2017. The ALJ's decision then became the final decision of the Commissioner, and plaintiff brought this case under 42 U.S.C. § 405(g), seeking reversal thereof.

II. Standard of Review

The Commissioner's findings of fact are conclusive if based on the correct legal standard and supported by substantial evidence. 42 U.S.C. § 405(g) ;

*662Seavey, 276 F.3d at 9. Substantial evidence includes "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ). So long as the Commissioner's determinations are supported by substantial evidence, they must be affirmed, "even if the record arguably could justify a different conclusion." Rodriguez Pagan v. Sec'y Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987) (per curiam).

III. Discussion

In support of his motion to reverse the Commissioner's decision, plaintiff argues that the ALJ erred in concluding at step two that his bilateral shoulder impairments were not severe and in weighing the related medical opinion evidence. He urges that the resulting RFC and hypothetical question posed to the VE were thus also erroneous and require reversal.

A. Severity of Bilateral Shoulder Impairment

A step-two severity finding requires plaintiff to show that his medically determinable impairment significantly limits his physical or mental ability to do basic work activities. 20 C.F.R. §§ 416.920(c), 416.921. The parties agree that this regulation is "a de minimis policy, designed to do no more than screen out groundless claims." McDonald v. Sec'y of Health & Human Servs., 795 F.2d 1118, 1124 (1st Cir. 1986) ("[A] finding of 'non-severe' is only to be made where '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 ...' " (quoting Social Security Ruling 85-28) ).

Plaintiff contends that because medical evidence established that his bilateral shoulder condition resulted in functional limitations, the ALJ erred in finding the condition non-severe at step two. He points to the May 2015 report of his treating physician, Dr. Covett, opining that "bilateral hypertrophic changes" limit plaintiff's ability to push and pull, with arthritis in both shoulders limiting his ability to reach and grasp. R. 981-82. Dr. Covett also noted degenerative joint disease in plaintiff's left shoulder, and the radiology report showed calcific tendinopathy in the right shoulder. In finding the shoulder impairments non-severe, the ALJ explicitly addressed the evidence upon which plaintiff now relies:

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Related

Anderson v. Berryhill
368 F. Supp. 3d 128 (District of Columbia, 2019)
Hosseini v. Berryhill
D. Massachusetts, 2018

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Bluebook (online)
317 F. Supp. 3d 658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sullivan-v-berryhill-dcd-2018.