United States District Court, D. Maine
DARRYL C. COSKERY, Plaintiff
NANCY A. BERRYHILL, Acting Commissioner of Social Security,  Defendant
REPORT AND RECOMMENDED DECISION
H. Rich III United States Magistrate Judge.
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.
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
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).
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).
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).
Retroactivity of SSR 16-3p
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.
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
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).
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).
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 ...