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Malaney v. Berryhill

United States District Court, D. Maine

June 11, 2017

KIMBERLY ANN MALANEY, 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 bases that the administrative law judge's determination of her physical residual functional capacity (“RFC”) is unsupported by substantial evidence; he failed to properly evaluate the physical RFC opinions of record; his determination of her mental RFC is unsupported by substantial evidence; he failed to properly evaluate the mental RFC opinions of record; he erred in relying solely on the so-called “Grid, ” the Medical-Vocational Guidelines contained in Appendix 2 to Subpart P, 20 C.F.R. § 404, to find her capable of performing work; and he erred in failing to rule on her requests to reopen prior applications. See Plaintiff's Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 10) at 3-20. I find no reversible error and, accordingly, 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 September 30, 2007, Finding 1, Record at 23; that she had severe impairments of affective disorders/mood disorder, anxiety-related disorder/anxiety disorder, personality disorder, and substance addiction disorder/polysubstance abuse (current status unclear), Finding 3, id. at 23; that she had the RFC to perform a full range of work at all exertional levels with the following nonexertional limitations: she was limited to simple instructions and could accomplish simple tasks on a consistent schedule to complete a workday and workweek, could interact with co-workers and supervisors but not the general public, and could adapt to occasional routine changes in the workplace, Finding 5, id. at 28; that, considering her age (35 years old, defined as a younger individual, on her alleged disability onset date, July 1, 2006), 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 she could perform, Findings 7-10, id. at 43; and that she, therefore, had not been disabled from July 1, 2006, through the date of the decision, March 27, 2015, Finding 11, id. at 44. 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 her 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. Overview: Challenge to Physical, Mental RFC Determinations

         “The ALJ's [administrative law judge'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.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (citations omitted).

         As counsel for the commissioner contended at oral argument, it is not the job of the court to reweigh the evidence. See, e.g., Rodriguez, 647 F.2d at 222 (“The Secretary may (and, under his regulations, must) take medical evidence. But the resolution of conflicts in the evidence and the determination of the ultimate question of disability is for him, not for the doctors or for the courts.”). The mere fact that a claimant can point to evidence of record supporting a different conclusion does not, in itself, warrant remand. See, e.g., Irlanda Ortiz v. Secretary of Health & Human Servs., 955 F.2d 765, 769-70 (1st Cir. 1991) (noting that, “[a]lthough the record arguably could support a different conclusion, ” substantial evidence supported decision that claimant's capacity for full range of sedentary, unskilled work was not significantly reduced).

         In this case, the administrative law judge carefully summarized the hearing testimony, “raw” medical evidence, and expert opinion evidence of record and explained why he resolved conflicts in that evidence in the manner that he did. See Record at 29-43. For that reason, as well as the reasons that follow, I conclude that his RFC determination survives scrutiny.

         B. Physical RFC Determination

         1. Asserted Lack of Substantial Evidence

         The plaintiff first challenges the finding that she had no severe physical impairment, contending that the administrative law judge erred in determining that she sustained only one injury when she was hit by a car in 2005, a broken arm that fully resolved, and failed to account for symptoms from migraine headaches and asthma. See Statement of Errors at 3-6. She contends that she suffered not only a right arm fracture, which continues to be symptomatic, but also a head injury and back pain as a result of her 2005 accident. See id. at 3-4.

         a. Residuals of 2005 Accident

         With respect to her alleged head injury, the plaintiff relies on an emergency department checkbox indicating that she had a head injury, accompanied by a remark that she had an abrasion on her right forehead, “trauma treatment” that included a CT head scan, and a later summary from Spring Harbor Hospital (“Spring Harbor”) noting “a history of a closed-head injury with loss of consciousness.” Id. at 3; Record at 524-25, 563.

         Yet, as the commissioner notes, see Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 16) at 2-3, the administrative law judge supportably found that she “did not require admission to the hospital and there is no indication that she lost consciousness or had a head injury, as alleged[, ]” Record at 24-25. Contemporaneous records make clear that, despite the plaintiff's forehead abrasion, she had no loss of consciousness at the scene of her November 28, 2005, accident or in the emergency department thereafter. Record at 524-25. She identifies no abnormal finding from the CT head scan. See Statement of Errors at 3-4. The April 2006 Spring Harbor note on which she relies, noting a “history” of head injury with loss of consciousness, see Record at 563, appears to be uncorroborated by the contemporaneous medical evidence, and the commissioner points to evidence of normal head, neck, and back findings on subsequent physical examinations, see, e.g., id. at 558 (normal physical examination in June 2006), 732, 760-61 (no head, neck, or back abnormalities noted in October 2006), 1180 (no head, neck, or back abnormalities noted by agency examining consultant Renato Medrano, M.D., in December 2012).

         With respect to her alleged back pain, the plaintiff points to findings on x-ray after she was rear-ended in a car accident in February 2006 suggestive of a prior pubic ramus fracture, with some wedging on the first lumbar vertebra and an irregular endplate appearance. See Statement of Errors at 3; Record at 800-01. She notes that discitis or post-traumatic change were possible diagnoses, arguing “[t]hat these injuries needed to be considered in combination with the residuals from the earlier accident and subsequent exacerbations.” Statement of Errors at 3-4; Record at 801. Yet, she points to no definitive diagnosis of those back impairments. See Statement of Errors at 3-4; see also id. at 24 (administrative law judge found “no reliable diagnosis of any impairment of the [plaintiff's] back, neck, or left leg”). Moreover, as the commissioner notes, see Opposition at 3, examinations of the plaintiff's back were normal in October 2006 and March 2008, see Record at 732, 761, 849, and she denied a history of musculoskeletal disorders during examinations in 2008, 2009, 2010, 2013, and 2014, see id. at 813, 822, 878, 909, 922, 929, 947, 1099, 1387, 1411. In addition, in December 2012, Dr. Medrano found no cervical, thoracic, or lumbar spine abnormality. See id. at 1180-81.

         The plaintiff concedes that her arm fracture itself essentially healed, but asserts that the administrative law judge erred in finding no ongoing residuals, see Statement of Errors at 4, pointing to documentation of (i) a visit to the emergency department in October 2006 for right shoulder pain following an incident in which she fell off a step stool, resulting in a diagnosis of shoulder sprain, see Record at 743-44, (ii) her report in May 2008 that she had right shoulder pain at ¶ 10/10 intensity, see id. at 842, (iii) a visit to the emergency department in December 2008 for acute right arm pain, constant, burning, and squeezing in nature, see id. at 815, (iv) her report of increasing right arm pain in March 2009, see id. at 959, (v) a June 2009 x-ray revealing that there might be an underlying fracture of the bone although the hardware remained intact, see id. at 942, and (vi) a visit to the emergency department in August 2013 when she exacerbated her right arm pain while trying to clean a refrigerator, see id. at 1249-51.

         However, as the commissioner argues, see Opposition at 4, despite these flare-ups, the administrative law judge supportably concluded that the right arm/shoulder injury was not significantly limiting. By August 2006, the plaintiff's surgeon noted that her fracture was well-healed and that she had a full range of motion with no pain on palpation. See Record at 569. She retained full range of motion and intact sensation in October 2006. See id. at 760. She had non-tender extremities with normal range of motion in March 2008, see id. at 849, and denied a history of musculoskeletal disorder in August 2008, see id. at 822. Although she complained of right arm pain in December 2008, see id. at 810, an x-ray was normal, see id. at 818, and she did not receive follow-up care. She reported increasing arm pain three times in the spring of 2009, but left without treatment each time. See id. at 955, 964, 966. Dr. Medrano observed normal extremities with full strength, no muscle atrophy, and intact sensation in December 2012. See Id. at 1180. The plaintiff denied musculoskeletal problems in November 2013 and November 2014. See id. at 1387, 1411.

         b. Migraine Headaches

         The administrative law judge found “no reliable diagnosis of migraine headaches in the current record.” Id. at 24. He acknowledged that the plaintiff had presented to the emergency department in March 2004 and May 2004 with complaints of a “migraine” but pointed out that she reportedly left abruptly when denied requested pain medication. See id. He added: “The record describes numerous other attempts at obtaining requested drugs through the emergency room with complaints of headaches or pain that cannot be substantiated on independent exams; and when declined, the [plaintiff] becomes combative.” Id. (citations omitted).

         The plaintiff contends, inter alia, that the claimed absence of support for headaches is contradicted by documentation of migraines featuring photophobia in March and May 2004. See Statement of Errors at 5. Yet, as noted above, the administrative law judge questioned the reliability of those diagnoses based on contemporaneous notations of concern for drug-seeking behavior. See Record at 24, 650, 656, 667. Moreover, as the commissioner suggests, see Opposition at 5, during the relevant time period, the plaintiff denied headaches in May 2007, July 2008, and February and April 2010, see Record at 709, 827, 865, 872, 1141. When she reported headaches in September 2011 and September 2012, she was not diagnosed with a headache disorder. See Opposition at 5; Record at 1038-39, 1075, 1077. She denied headaches in November 2012, February 2013, and February 2014. See Opposition at 5; Record at 1109, 1265, 1411-12.

         c. Asthma

         The plaintiff, finally, faults the administrative law judge for failing to assess limitations resulting from a severe asthma/shortness of breath impairment, noting that an agency nonexamining consultant, Donald Trumbull, M.D., characterized asthma as her primary impairment, and pointing to instances in which she complained of shortness of breath/anxiety in February 2010, panic/asthma attack in April 2010, and shortness of breath in November 2012. See Statement of Errors at 5-6. However, the administrative law judge supportably determined that the plaintiff's asthma was well-controlled with inhaler medication and nonsevere. See Record at 24. Dr. Trumbull found the plaintiff's asthma nonsevere after specifically mentioning the April 2010 record on which the plaintiff partly relies, see id. at 997, and the asthma exacerbation noted in November 2012 improved within a few weeks, see id. at 1109-10, 1212. The plaintiff points to no subsequent evidence of uncontrolled asthma. See Statement of Errors at 5-6. As the commissioner suggests, see Opposition at 5-6, the record evidence indicates otherwise. Dr. Medrano noted no functional limitations stemming from asthma on examination in December 2012, see Record at 1181, and agency nonexamining consultants J.H. Hall, M.D., and Anthony Pileggi, M.D., found no severe asthma impairment in January 2013 and September 2013, respectively, see id. at 130, 166.

         2. Challenge To Weighing of Opinion Evidence

         The plaintiff next seeks remand on the basis that the administrative law judge improperly rejected the physical RFC opinion of examining orthopedic surgeon Frank A. Graf, M.D., while crediting the opinions of agency nonexamining consultant Dr. Trumbull and agency examining consultant Dr. Medrano. See Statement of Errors at 6-11.

         a. Dr. Graf

         In a letter to the plaintiff's counsel dated January 21, 2015, Dr. Graf noted that he had examined and interviewed the plaintiff and reviewed certain medical records, diagnosing her with (i) direct impact injuries to the occiput with occipital scalp hematoma and altered short-term memory and intermittent visual effects, (ii) comminuted fracture proximal humerus on the right status post ORIF [open reduction internal fixation] with long plate and screws applied, (iii) intermittent numbness and tingling in both hands in a C6, C7, and C8 spinal nerve root pattern with C6 dominant, and (iv) chronic lumbosacral pain with intermittent left lateral thigh pain. See Record at 1434-37. He summarized:

This individual has ongoing residuals of car-pedestrian motor vehicle accident with continued weakness and restricted ranges of motion in the right upper extremity. She has ongoing proximal cervical component to right and left upper extremity intermittent numbness and tingling. She has chronic lumbosacral pain without full-fledged radiculopathy in the lower extremities with diminished tendo Achilles reflex and lateral thigh pain patterning.
The [plaintiff] was last employed gainfully in 2005 with no employment subsequent to the motor vehicle accident. While the [plaintiff] has training as a CNA [certified nursing assistant], her certification has lapsed and because of the upper extremity weakness and sensory changes, she would not be able to participate in codes or patient transfers. With her psychiatric diagnoses and her recent efforts ...

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