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Coskery v. Berryhill

United States District Court, D. Maine

June 4, 2017

DARRYL C. COSKERY, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant

          REPORT AND RECOMMENDED DECISION [2]

          John H. Rich III United States Magistrate Judge.

         This Social Security Disability (“SSD”) and Supplemental Security Income (“SSI”) appeal raises the question of whether the administrative law judge supportably found the plaintiff capable of performing work existing in significant numbers in the national economy. The plaintiff seeks remand on the basis that the administrative law judge erroneously assessed his credibility in violation of Social Security Ruling 16-3p (“SSR 16-3p”), which took effect on March 16, 2016, superseding Social Security Ruling 96-7p (“SSR 96-7p”). See Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 12) at 6-10. I conclude that SSR 16-3p cannot be applied retroactively to the August 24, 2015, decision at issue.

         The plaintiff made no alternative argument that the credibility determination was flawed pursuant to SSR 96-7p. See generally id. At oral argument, however, he disputed the commissioner's assertion that he had waived that point by failing to include it in his statement of errors, see Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 17) at 4 n.2. I agree with the plaintiff that he did not waive any argument that the credibility determination fails to pass muster pursuant to SSR 96-7p because he did raise the issue of the determination's supportability. See Farrin v. Barnhart, No. 05-144-P-H, 2006 WL 549376, at *5 (D. Me. Mar. 6, 2006) (rec. dec., aff'd Mar. 28, 2006) (“Counsel for the plaintiff in this case and the Social Security bar generally are hereby placed on notice that in the future, issues or claims not raised in the itemized statement of errors required by this court's Local Rule 16.3(a) will be considered waived and will not be addressed by this court.”) (footnote omitted) (emphasis added). However, for the reasons that follow, I conclude that the credibility determination passes muster pursuant to SSR 96-7p. Accordingly, I recommend that the court affirm the commissioner's decision.

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. §§ 404.1520, 416.920; Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the administrative law judge found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act through March 31, 2015, Finding 1, Record at 10; that he had severe impairments of disorders of the back and dysfunction of major joints, Finding 3, id.; that he had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), could lift and carry 20 pounds occasionally and 10 pounds frequently, sit for six hours and stand/walk for six hours in an eight-hour workday, occasionally push/pull hand controls bilaterally, and frequently climb ramps and stairs, could not climb ladders, ropes, and scaffolds, could occasionally balance, stoop, and crawl, could frequently kneel and crouch, could not perform overhead reaching with his left non-dominant upper extremity, and could perform a full extension reach in front or laterally with his left upper extremity on an occasional basis, Finding 5, id. at 12; that, considering his age (47 years old, defined as a younger individual, on his alleged disability onset date, October 1, 2009, and subsequently changing age categories to closely approaching advanced age), education (at least high school), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that he could perform, Findings 7-10, id. at 17; and that he, therefore, had not been disabled from October 1, 2009, through the date of the decision, August 24, 2015, Finding 11, id. at 18-19. The Appeals Council declined to review the decision, id. at 1-3, making the decision the final determination of the commissioner, 20 C.F.R. §§ 404.981, 416.1481; Dupuis v. Secretary of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).

         The standard of review of the commissioner's decision is whether the determination made is supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Manso-Pizarro v. Secretary of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

         The administrative law judge reached Step 5 of the sequential evaluation process, at which stage the burden of proof shifts to the commissioner to show that a claimant can perform work other than his past relevant work. 20 C.F.R. §§ 404.1520(g), 416.920(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the commissioner's findings regarding the plaintiff's RFC to perform such other work. Rosado v. Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

         I. Discussion

         A. Retroactivity of SSR 16-3p

         In his statement of errors, the plaintiff did not address the retroactivity of SSR 16-3p, although he cited a 2016 decision of the United States Court of Appeals for the Seventh Circuit, Cole v. Colvin, 831 F.3d 411 (7th Cir. 2016), discussing that ruling. See Statement of Errors at 6-10. At oral argument, in response to the commissioner's citation to authorities in support of the proposition that the ruling should not be applied retroactively, see Opposition at 3-4, the plaintiff's counsel cited Rioux v. Massanari, No. 00-305-P-H, 2001 WL 574615 (D. Me. May 25, 2001) (rec. dec., aff'd July 2, 2001), for the proposition that it should be.[3]

         My research reveals that courts have split on whether SSR 16-3p should be retroactively applied, see, e.g., Phillips v. Berryhill, Case No. 4:15-CV-00218-MHH, 2017 WL 1210150, at *6 & nn. 5-6 (N.D. Ala. Mar. 31, 2017); Lane v. Berryhill, CV616-024, 2017 WL 976923, at *4 n.8 (S.D. Ga. Feb. 16, 2017) (rec. dec., aff'd Mar. 13, 2017), and that neither this court nor the First Circuit has addressed the point. I conclude that the commissioner has the better argument.

         First, as the commissioner argues, see Opposition at 4, Cole does not address the retroactivity issue. In Cole, the Seventh Circuit observed:

Recently the Social Security Administration announced that it would no longer assess the “credibility” of an applicant's statements, but would instead focus on determining the “intensity and persistence of [the applicant's] symptoms.” Social Security Ruling 16-3p; “Titles II and XVI: Evaluation of Symptoms in Disability Claims, ” 81 Fed. Reg. 14166, 14167 (effective March 28, 2016). The change in wording is meant to clarify that administrative law judges aren't in the business of impeaching claimants' character; obviously administrative law judges will continue to assess the credibility of pain assertions by applicants, especially as such assertions often cannot be either credited or rejected on the basis of medical evidence.

Cole, 831 F.3d at 412 (emphasis in original). The Seventh Circuit twice cited the above Federal Register notice, as well as other authorities, in holding that the administrative law judge's decision was “unreasoned, ” warranting remand; however, it never held that SSR 16-3p applied retroactively or that the decision violated that ruling. See id. at 415-16. Indeed, it recognized that the ruling became effective in March 2016. See id. at 412. See also Huigens v. Colvin, Civil Action Number 4:16-cv-00600-AKK, 2017 WL 588606, at *3 (N.D. Ala. Feb. 14, 2017) (Cole “does not endorse (or otherwise discuss) retroactive application” of SSR 16-3p).

         Second, as the commissioner notes, see Opposition at 3-4, a number of courts have held that SSR 16-3p does not apply retroactively because the ruling does not provide for its retroactive application, see, e.g., Wright v. Colvin, Case No. 15-cv-02495-BLF, 2017 WL 697542, at *9 (N.D. Cal. Feb. 22, 2017); Hoop v. Commissioner of Soc. Sec., Civil Action 2:16-cv-140, 2017 WL 696701, at *9 n.1 (S.D. Ohio Feb. 22, 2017) (rec. dec., aff'd Mar. 10, 2017); Thayer v. Colvin, CASE NO. 2:16-CV-00545-DWC, 2017 WL 132450, at *7 (W.D. Wash. Jan. 13, 2017), appeal docketed, Case No. 17-35199 (9th Cir. Mar. 9, 2017); Lopez v. Colvin, Civil No. 3:16cv24 (JAG), 2016 WL 6594107, at *4 n.3 (E.D. Va. Oct. 13, 2016) (rec. dec., aff'd Nov. 4, 2016); Regalado v. Colvin, Case No. 15-cv-299-PB, 2016 WL 4775525, at *8 (D.N.H. Sept. 14, 2016).

         That line of cases relies on Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988), in which the United States Supreme Court observed: “Retroactivity is not favored in the law. Thus congressional enactments and administrative rules will not be construed to have retroactive ...


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