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King v. Berryhill

United States District Court, D. Maine

October 11, 2017

KORY S. KING, Plaintiff
v.
NANCY A BERRYHILL, ACTING COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant

          REPORT AND RECOMMENDED DECISION

          John C. Nivison U.S. Magistrate Judge.

         On Plaintiff Kory King's application for disability insurance benefits under Title II and supplemental security income benefits under Title XVI of the Social Security Act, Defendant, the Social Security Administration Acting Commissioner, found that Plaintiff has severe impairments, but retains the functional capacity to perform substantial gainful activity. 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 December 29, 2015, decision of the Administrative Law Judge (ALJ). (ECF No. 9-2, R. 22.)[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, 416.920.

         The ALJ found that Plaintiff has severe, but non-listing-level impairments consisting of diabetes, gastroparesis, peripheral neuropathy, affective disorder, and substance abuse. (ALJ Decision ¶¶ 3 - 4.) The ALJ further determined that, despite his impairments, Plaintiff has the residual functional capacity (RFC) to perform light exertion work, stand/walk for six hours in an eight-hour day, and sit for six hours in an eight-hour day, but is subject to multiple postural and environmental restrictions, and is able to maintain attention, concentration, persistence, and pace for simple, routine work that does not involve more than occasional contact with the public. (Id. ¶ 5.) While concluding that the RFC would prevent Plaintiff from performing his past relevant work as an electrical engineer, based in part on the testimony of a vocational expert, the ALJ found Plaintiff could perform other substantial gainful activity, including the representative occupations of assembler and packager. (Id. ¶¶ 6, 10.) The ALJ, therefore, concluded that Plaintiff was not under a disability from the alleged onset date of September 12, 2013, through the date of decision, December 29, 2015. (Id. ¶ 11.)

         Standard of Review

         A court must affirm the administrative decision provided the ALJ applied the correct legal standards and the decision is supported by substantial evidence. This is so 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).

         Discussion

         Plaintiff argues that the ALJ erred when he relied on the opinion of Disability Determination Services consultant Craig Billinghurst, M.D., because Dr. Billinghurst did not adequately assess the impact of Plaintiff's gastroparesis symptoms. (Statement of Errors at 3 - 5, ECF No. 11.) Plaintiff cites multiple medical records that support his symptoms, including nausea, vomiting, and diarrhea, and their frequency. (Id. at 5.) In addition, to the extent the ALJ found Plaintiff to be noncompliant with his care providers' recommendations, Plaintiff contends the ALJ did not perform the required regulatory analysis. (Id. at 6 - 7, citing Social Security Ruling 82-59 and Program Operations Manual System (POMS) § DI 23010.005.) Plaintiff asserts that the only probative evidence of a recommendation that would reduce Plaintiff's symptoms is the opinion of Nurse Practitioner Deborah Martin, who advised that Plaintiff will need to visit the emergency department “about every 4 weeks” to manage his symptoms. (R. 7 - 8, citing R. 1077.)

         A. Gastroparesis

         As a consequence of type I diabetes and other factors, Plaintiff experiences severe gastroparesis, a condition that causes his stomach to empty slowly and results in nausea and vomiting. (Ex. 14F, R. 1077.) The condition is difficult to control, particularly as Plaintiff has an allergy to the most commonly prescribed medication for the condition. (Id.) The medical records reflect Plaintiff has a history of visiting the emergency department on a near monthly basis as a consequence of symptoms associated with gastroparesis.

         The consulting experts who have assessed Plaintiff's combined impairments, including gastroparesis, and Plaintiff's RFC, have determined that Plaintiff retains the capacity for a subset of light work. (Richard T. Chamberlin, MD, RFC Assessment of June 17, 2014, Ex. 2A, R. 70 - 72, Ex. 4A, R. 85 - 87; Craig Billinghurst, MD, RFC Assessment of Oct. 29, 2014, Ex. 6A, R. 101 - 103 & Ex. 8A, R. 117 - 119.) In particular, Dr. Billinghurst's RFC assessment fully supports the ALJ's RFC findings. Plaintiff has not introduced a competing RFC assessment or any assessment from an acceptable medical source whose opinion may be entitled to controlling weight. 20 C.F.R. §§ 404.1513(a), 404.1527, 416.913(a), 416.927; Edgecomb v. Colvin, No. 1:14-CV-00004-JCN, 2015 WL 224765, at *2 (D. Me. Jan. 15, 2015).

         Plaintiff argues that Dr. Billinghurst's opinion is not reliable given that record evidence reflects Plaintiff's gastroparesis is not and cannot be controlled, which evidence includes a letter of Nurse Practitioner Martin. (Ex. 15F, R. 1077.) Dr. Billinghurst and the ALJ were not persuaded that Plaintiff's gastroparesis cannot be controlled. The ALJ cited Plaintiff's daily activities, his diet, his drug use, his failure to take prescribed medication when ordered, and his decision to end prior hospitalizations against medical advice, to support the ALJ's determination that, with compliance, the symptoms are controllable and that the condition does not limit Plaintiff's activity level to the degree Plaintiff contends. (ALJ Decision at 7, R. 28-29, citing Ex. 13F, R. 937, 977, 978, 1055, 1057 - 58; see also R. 1059 - 60.) The ALJ thus supportably found Plaintiff's testimony ...


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