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Salisbury v. Berryhill

United States District Court, D. Maine

July 7, 2017

TAMMY L. SALISBURY, Plaintiff
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant

          REPORT AND RECOMMENDED DECISION

          John C. Nivison U.S. Magistrate Judge

         In this action, Plaintiff Tammy L. Salisbury seeks disability insurance benefits under Title II of the Social Security Act. Defendant, the Social Security Administration Acting Commissioner, found that Plaintiff has a severe impairment, but retains the functional capacity to perform substantial gainful activity, including her past relevant work. Defendant, therefore, denied Plaintiff's request for disability benefits. Plaintiff filed this action for judicial review of Defendant's final administrative decision pursuant to 42 U.S.C. § 405(g).

         Following a review of the record, and after consideration of the parties' arguments, I recommend the Court affirm the administrative decision.

         The Administrative Findings

         The Commissioner's final decision is the September 17, 2015, decision of the Administrative Law Judge (ALJ) (ECF No. 9-2).[1] The ALJ's decision tracks the familiar five-step sequential evaluation process for analyzing social security disability claims, 20 C.F.R. § 404.1520.

         The ALJ found that Plaintiff has a severe, but non-listing-level impairment: sleep disorder. (Decision ¶¶ 3 - 4.) The ALJ determined that Plaintiff has the residual functional capacity (RFC) for the full-range of exertional activity, but must avoid heights, hazardous machinery, motor vehicle operation, and sharp instruments. (Id. ¶ 5.) The ALJ further found that with her RFC, Plaintiff has the capacity to perform past relevant work and other substantial gainful activity. (Id. ¶ 6.) The ALJ, therefore, concluded that Plaintiff was not disabled from January 12, 2012, through the date of decision, September 17, 2015. (Id. ¶ 7.)

         Plaintiff's Statement of Errors

         Plaintiff asserts that the ALJ's step 2 characterization of Plaintiff's condition as a sleep disorder is erroneous. Citing the findings of several treating neurologists, Plaintiff contends the proper diagnosis is narcolepsy. (Statement of Errors at 1 - 4.) Plaintiff argues the step 2 error led to error at step 3 because the proper listing for evaluation of narcolepsy is Listing 11.02 (epilepsy), not Listing 3.10 (sleep related breathing disorders). (Id. at 3.) Plaintiff maintains her condition is equivalent to a condition that would meet Listing 11.02. (Id. at 4 - 6.)

         Plaintiff also challenges the ALJ's RFC finding, and argues the ALJ improperly relied on the state agency non-examining expert who diagnosed sleep disorder (Susan Moner, M.D.), improperly weighed the findings of a treating source (James Stevenson, M.D.), and improperly assessed Plaintiff's credibility regarding her report of her subjective symptoms. (Id. at 8 - 18.)

         Discussion

         A. Standard of Review

         A court must affirm the administrative decision provided that the ALJ applied the correct legal standards and provided that the decision is supported by substantial evidence, even if the record contains evidence capable of supporting an alternative outcome. Manso-Pizarro v. Sec'y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per curiam); Rodriguez Pagan v. Sec'y of HHS, 819 F.2d 1, 3 (1st Cir. 1987). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a finding. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981). “The ALJ's findings of fact are conclusive when supported by substantial evidence, but they 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).

         B. Analysis

         1. Narcolepsy at step 2

         At step 2, the ALJ found that Plaintiff has a sleep disorder that causes more than a slight restriction in her ability to perform basic work-related activities. (Decision ¶ 3.) In his discussion of Plaintiff's RFC, the ALJ noted “a history of narcolepsy dating back to age 13, ” but also observed that “the record fails to show that her condition worsened on her alleged onset date.” (R. 17.) According to Plaintiff, although she managed her condition with medication for years, the medication became ineffective and her symptoms became unmanageable for employment purposes because she “came down with insomnia.” (R. 45 - 46.) “The medication that worked before … was no longer working because [she] was falling asleep without knowing it on the medication.” (R. 47.) Plaintiff received a series of neurological evaluations in 2010 and 2011, following her report of symptoms such as blackout episodes, loss of time, and resulting loss of employment. (Ex. 3F, R. 268.)

         On September 8, 2011, Maine Disability Determination Services consulting physician Robert Hayes, D.O., reported: “Although the claimant reports long history of narcolepsy, this diagnosis is not confirmed by consulting neurologists' records.” (Ex. 1A, R. 61.) He then provided an RFC assessment for sleep disorder, which assessment was somewhat more restrictive than the RFC assessed by the ALJ. On November 25, 2013, Maine Disability Determination Services consulting physician Susan Moner, M.D., found ...


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