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Applebee v. Berryhill

United States District Court, D. Maine

December 20, 2017

DEVYN ELLEN APPLEBEE, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          REPORT AND RECOMMENDED DECISION [1]

          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 (“ALJ”) 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 ALJ erred in his assessment of the plaintiff's subjective complaints and assigned improper weight to several medical source opinions. See Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 15) at 8-19. 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. Sec'y of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the ALJ found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act through December 31, 2015, Finding 1, Record at 17; that she had the severe impairments of degenerative disc disease of the lumbar spine, status-post surgery x 2, lumbar radiculopathy, asthma, and hypothyroidism, Finding 3, id. at 18; that she had the residual functional capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), except that she could occasionally climb ramps and stairs, never climb ropes, ladders, or scaffolds, could occasionally stoop, kneel, crouch, and crawl, needed to avoid concentrated exposure to vibration and even moderate exposure to hazards such as dangerous moving machinery and unprotected heights, and needed to avoid more than occasional exposure to respiratory and pulmonary irritants, Finding 5, id. at 20; that, considering her age (43 years old, defined as a younger individual, on her amended alleged disability onset date, November 15, 2010), 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 26; and that she, therefore, had not been disabled from November 15, 2010, through the date of the decision, November 6, 2015, Finding 11, id. at 27.[2] 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. Sec'y 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. Sec'y 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. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

         The ALJ 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. Sec'y of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

         I. Discussion

         A. The ALJ's Assessment of the Plaintiff's Credibility

         The plaintiff first challenges the ALJ's determination of her credibility, contending that it fails to pass muster pursuant to Social Security Ruling 16-3p (“SSR 16-3p”), which took effect in March 2016, superseding Social Security Ruling 96-7p (“SSR 96-7p”). See Statement of Errors at 8-9. She argues, in the alternative, that if SSR 96-7p applies, the credibility determination is flawed for the same reasons pursuant to that standard. See id. at 9.

         Subsequent to the filing of the plaintiff's statement of errors, this court held that SSR 16-3p is not retroactive, see Coskery v. Berryhill, No. 1:16-cv-00477-NT, 2017 WL 2417847, at *2-4 (D. Me. June 4, 2017) (rec. dec. aff'd July 7, 2017), and the plaintiff's counsel offered no reason at oral argument to revisit that ruling. Accordingly, SSR 96-7p, which applied as of the date of the ALJ's decision, November 6, 2015, see Record at 28, supplies the standard pursuant to which the supportability of the ALJ's credibility determination must be reviewed.

         SSR 96-7p provides, in relevant part, that a determination “must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight.” SSR 96-7p, reprinted in West's Social Security Reporting Service Rulings 1983-1991 (Supp. 2017), at 133. “The credibility determination by the ALJ, who observed the claimant, evaluated [her] demeanor, and considered how that testimony fit in with the rest of the evidence, is entitled to deference, especially when supported by specific findings.” Frustaglia v. Sec'y of Health & Human Servs., 829 F.2d 192, 195 (1st Cir. 1987). I find no reason to disturb that determination in this case.

         The ALJ articulated six reasons, in addition to objective testing and examination results, for deeming the plaintiff's subjective complaints about the limiting effects of her impairments less than fully credible:

The [plaintiff] has an inconsistent work record, reflective of minimal work orientation. Furthermore, the [plaintiff] previously filed an application for disability benefits, which an [ALJ] dismissed for failure to appear at her scheduled hearing. Dr. Waterman [treating surgeon Wayne R. Waterman, D.O.] indicated that the [plaintiff] had not complied with his recommendation to increase activity. Similarly, Mr. Marquis [treating physician's assistant (“PA”) Dallas Marquis, PA-C] indicates that, by April 22, 2015, the [plaintiff] had not received pain management care in six months, and had not presented for primary care in over ten months. This is inconsistent with the [plaintiff's] complaints of debilitating pain. Moreover, despite complaints of disabling depression and anxiety, the medical evidence of record is significant for a paucity of treatment for these alleged symptoms. The fact that the claimant re-established treatment in April 2015, apparently for the sole purpose of establishing disability, further erodes the credibility of the [plaintiff's] allegations.

Record at 22-23 (citation omitted).

         The plaintiff takes issue with all six rationales, asserting that none is supported by substantial evidence. See Statement of Errors at 9-12. The commissioner concedes that the ALJ erred in relying on the first rationale, this court having held that “it is improper to draw a negative inference based on a claimant's assertedly poor work record[.]” Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 17) at 6 (quoting Kenney v. Colvin, No. 2:13-cv-296-GZS, 2014 WL 3548986, at *8 (D. Me. July 17, 2014)). However, she contends that the remaining rationales are supported by substantial evidence, as a result of which remand is unwarranted. See id.; Kenney, 2014 WL 3548986, at *8 (“[R]emand is not warranted when, as here, an [ALJ] provides other valid bases for a negative credibility determination.”). I agree.

         1. Failure To Appear at Prior Disability Hearing

         The plaintiff filed prior claims for SSD and SSI benefits for which, on June 14, 2011, she requested a hearing. See Record at 73. She was sent a notice of hearing dated April 19, 2012, following which her then-attorney confirmed that she was aware of the time and place of the hearing and would be present. See id. She neither appeared nor demonstrated good cause for her non-appearance, on the basis of which, by decision dated July 13, 2012, the commissioner dismissed her hearing request, leaving in effect an adverse June 2, 2011, determination. See id. at 73-74. The plaintiff filed the instant SSD claim on December 26, 2012, and the instant SSI claim on October 31, 2013, initially alleging disability commencing on January 23, 2011, but amending her alleged onset date of disability to November 15, 2010. See id. at 15.

         The plaintiff complains that the ALJ neglected to explain how her failure to appear for a disability hearing on a prior claim impacted the credibility of her allegations in this claim, arguing that the observation was “not supported by substantial evidence in this respect.” Statement of Errors at 12. Yet, generally speaking, a failure to cooperate in the disability claims process is a proper basis on which to draw a negative credibility inference. See, e.g., Bisbee v. Colvin, No. 2:13-CV-95-GZS, 2014 WL 294495, at *5 (D. Me. Jan. 27, 2014) (claimant's failure to attend a scheduled consultative examination bore on his credibility). I perceive no error in the ALJ's partial reliance on the plaintiff's non-appearance in connection with her prior applications for SSD and SSI benefits, particularly in view of their proximity in time to the instant applications.

         2. Dr. Waterman's Treatment Note

         Following complaints of low back pain, the plaintiff had MRI testing on November 23, 2010, that revealed disc herniation at ¶ 4-L5 and L5-S1 with nerve root impingement. See Record at 21, 709, 711-12. On January 18, 2011, she underwent a multilevel discectomy, performed by Richard Buonocore, M.D. See id. at 21, 709-10. Although her condition initially improved, she began experiencing lower extremity pain and cramping and ultimately underwent interbody fusion at ¶ 4-L5 and L5-S1, performed by Dr. Waterman on October 17, 2013. See id. at 21-22, 665-67.

         The plaintiff contends that, in stating that she “had not complied with [Dr. Waterman's] recommendation to increase activity[, ]” id. at 22, the ALJ “misrepresent[ed] Dr. Waterman's April 2014 treatment note[.]” Statement of Errors at 10. I disagree.

         On October 30, 2013, less than two weeks after her surgery, the plaintiff reported to Dr. Waterman that she had “5/10 discomfort” but was “doing much better than before surgery.” Id. at 753. Dr. Waterman prescribed physical therapy and advised that the plaintiff “start to increase her activities as tolerated.” Id.

         However, in the note at issue, describing the plaintiff's six-month post-surgery follow-up on April 15, 2014, Dr. Waterman stated:

At this point [the plaintiff] still says she has 5-6/10 discomfort in her low back and legs. Says she is better than before surgery but having tightness in her calves when she gets up to try to exercise. She says she has just recently started physical therapy and they are working on some hip unleveling, and she is discouraged by this because she believes they should be working on her low back. I asked her if she does daily stretching and exercise. She says other than the stretches and exercises physical therapy has given her, she is not up walking and trying to increase her ambulatory tolerance, which is something that we had hoped her to do previously to this.

Id. at 751. In the “recommendations” section of his note, Dr. Waterman observed:

At this point her problem is that she is about 6 months behind the average patient since she has not done any significant physical therapy or any strengthening of her core muscles or increasing her ambulatory tolerance. My recommendation is that she get up and start walking every day starting at an eighth of a mile, then working to a quarter of a mile, half a mile, a mile, and maybe more, 2-3 miles a day to try to increase her ambulatory tolerance and stretch out her legs and her hamstrings. . . . I think that if she increases her back strength, her abdominal core strength and her ambulatory tolerance, she can reap full benefit from the surgery.

Id.

         These passages indeed suggest that the plaintiff did not fully comply with Dr. Waterman's prescribed post-surgical exercise and physical therapy program, retarding the progress of her recovery from surgery and expected improvement in functionality. Thus, the ALJ supportably found that “Dr. Waterman indicated that the [plaintiff] had not complied with his recommendation to increase activity.” Record at 22. He did not err in drawing a negative credibility inference therefrom. See, e.g., Dubriel v. Astrue, Civil No. 08-406-B-W, 2009 WL 1938986, at *7 (D. Me. July 6, 2009) (rec. dec. aff'd July 24, 2009) (ALJ's finding that claimant had been “lax” and “without good excuse” in seeking treatment or following up on recommended treatment was “a proper basis upon which to discount a claimant's credibility”). At oral argument, the plaintiff's counsel contended that the plaintiff was in too much pain to comply with Dr. Waterman's recommendations, but that is not apparent from the August 15, 2014, note. The fact that Dr. Waterman, at that visit, recommended an increase in her activity level, however, suggests otherwise.

         3. PA Marquis' Treatment Notes

         The plaintiff next argues that the ALJ misrepresented April 2015 treatment notes of PA Marquis in making two of his six contested credibility findings: that she (i) had not received pain management care in six months or primary care for more than 10 months and (ii) had apparently reestablished treatment for the sole purpose of establishing disability. See Statement of Errors at 10-11. I find no error.

         On the first point, the plaintiff observes that PA Marquis noted that she was seeking further treatment for ongoing chronic back pain for which prescribed medication had proved ineffective, and he did not indicate that she had failed to comply with any recommended or prescribed treatment. See id. at 11; Record at 842. Yet, in that context, PA Marquis did note her prior gap in treatment. See Record at 843-44.

         The plaintiff presented to PA Marquis on April 22, 2015, complaining of back pain of two weeks' duration after she stood up from a chair and heard a loud crack. See Record at 851. She returned for a follow-up visit on April 30, 2015. See id. at 841. PA Marquis indicated that he had referred her to a pain management specialist, noting that she had not seen such a specialist in more than six months and had not seen a primary care provider in more than 10 months. See id. at 843-44. The ALJ reasonably viewed that treatment gap as cutting against the credibility of her allegations of disabling pain. See, e.g., Baxter v. Colvin, No. 2:13-cv-344-GZS, 2014 WL ...


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