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I have been working on a federal court brief, which will be filed today. Here in Maine, we have local rule 16.3, which streamlines Social Security appeals. These cases are routed to the magistrate judge in Portland, Hon. John Rich III, who decides the appeal based upon an Itemized Statement of Errors filed by the Plaintiff and the oral argument of both parties. Well, technically the magistrate judge issues a recommended decision for the district court judge, but that recommended decision is routinely adopted by the distict court judge, so as a practical matter, the magistrate judge decides the appeal. 

All the decisions of Judge Rich are available on-line. It has been a while since I did a federal court appeal, so I reviewed his recent Social Security cases, to make sure I wasn't arguing an issue that had been decided the other way, and to have current citations for the issues I briefed. And, of course, to see if there were some helpful cases for my issues on appeal.

Below are a few snippets from the District of Maine cases that were relevant to my appeal. Those of you who do Appeals Council briefs or federal court work will recognize familiar, recurring issues:

Evaluating treating source opinions

A medical opinion by a treating source is given "controlling weight" when it is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the case record. See 20 C.F.R. § 404.1527(d)(2); Social Security Ruling 96-2p, reprinted in West’s Social Security Reporting Service Rulings 1983-1991 (Supp. 2010) ("SSR 96-2p"), at 111. When such an opinion is not given controlling weight, it is nonetheless evaluated pursuant to the factors enumerated in section 404.1527(d)(2)-(6). See id. § 404.1527(d)(2). The fact that a medical opinion is not entitled to controlling weight does not mean that it should be rejected. See SSR 96-2p at 114. "Treating source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 CFR 404.1527 and 416.927." Id. The commissioner must "always give good reasons in [his] notice of determination or decision for the weight [he] give[s] your treating source’s opinion." 20 C.F.R. § 404.1527(d)(2).

RFC determinations

While administrative law judges are not precluded from “rendering common-sense judgments about functional capacity based on medical findings,” they are “not qualified to assess residual functional capacity based on a bare medical record[,]” Gordils v. Secretary of Health & Human Servs., 921 F.2d 327, 329 (1st Cir. 1990). See also, e.g., Eshelman v. Astrue, No. 06-107-B-W, 2007 WL 2021909, at *3 (D. Me. July 11, 2007) (rec. dec. aff’d July 31, 2007) (“While the First Circuit does permit an administrative law judge to pick and choose among physicians’ findings and opinions, it does not permit the crafting of an RFC based on the raw medical evidence of record unless common-sense judgments about functional capacity can be made.”) (citations, internal quotation marks, and footnote omitted). Kaylor v. Astrue, No. 2:10-cv-33-GZS (D. Me. December 30, 2010)(rec. dec. aff'd February 7, 2011) 

The administrative law judge, as a layperson, is not competent to assess the plaintiff’s physical RFC on the basis of the raw medical evidence of record. See, e.g., Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) ("The ALJ’s findings of fact are conclusive when supported by substantial evidence, but are not conclusive when derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts.")

Step 2 and Harmful Error

Although a claimant bears the burden of proof at Step 2, it is a de minimis burden, designed to do no more than screen out groundless claims. McDonald v. Secretary of Health & Human Servs., 795 F.2d 1118, 1124 (1st Cir. 1986). When a claimant produces evidence of an impairment, the commissioner may make a determination of non-disability at Step 2 only when the medical evidence "establishes only a slight abnormality or [a] 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. (quoting Social Security Ruling 85-28). Guber v. Astrue, Civil No. 1:10-cv-172-JAW (D. Me March 30, 2011).

"[A]n error at Step 2 is uniformly considered harmless, and thus not to require remand, unless the plaintiff can demonstrate how the error would necessarily change the outcome of the plaintiff's claim." Bolduc v. Astrue, Civil No. 09-220-B-W, 2010 WL 276280, at *4 n.3 (D. Me. Jan. 19, 2010).

Simple instructions

A limitation to simple instructions and tasks correlates to jobs with a GED R level 1 or 2. Pepin v. Astrue, Civil No.09-464-P-S (D. Me. August 24, 2010)(rec. dec. aff'd September 16, 2010).

7/7/11 update: After reviewing the Statement of Errors and the administrative record, Assistant Regional Counsel determined that a remand is appropriate. Excellent!