Bailey v. Berryhill

          REPORT AND RECOMMENDED DECISION ^[1]

          John H. Rich III United States Magistrate Judge.

         This Social Security Disability (“SSD”) appeal raises the question of whether the administrative law judge (“ALJ”) supportably found the plaintiff capable of performing past relevant work as a parking lot attendant and, in the alternative, performing other work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that the ALJ erred in determining his credibility and in erroneously giving greater weight to the opinion of an agency nonexamining physician than to those of examining and treating physicians. See Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 13) at 7-13. I find no 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; 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 March 31, 2010, Finding 1, Record at 23; that, through his date last insured, he had severe impairments of diabetes mellitus, degenerative disc disease, and a history of coronary artery disease, Finding 3, id. at 24; that, through his date last insured, he had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. 404.1567(b), except that he could occasionally climb ramps, stairs, ladders, ropes, and scaffolds, could occasionally stoop, kneel, crouch, and crawl, and should not work with hazardous machinery or near unprotected heights, Finding 5, id. at 26; that, through his date last insured, he was capable of performing past relevant work as a parking lot attendant, which did not require the performance of work-related activities precluded by his RFC, Finding 6, id. at 30; that, in the alternative, considering his age (52 years old, defined as an individual closely approaching retirement age, on his alleged disability onset date, January 1, 2002), 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 through his date last insured, Finding 6, id. at 30-31; and that he, therefore, had not been disabled from January 1, 2002, his alleged onset date of disability, through March 31, 2010, his date last insured, Finding 7, id. at 32. 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; 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); 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 4 of the sequential evaluation process, at which stage the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. § 404.1520(f); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). At this step, the commissioner must make findings of the plaintiff's RFC and the physical and mental demands of past work and determine whether the plaintiff's RFC would permit performance of that work. 20 C.F.R. § 404.1520(f); Social Security Ruling 82-62 (“SSR 82-62”), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.

         In the alternative, 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 his past relevant work. 20 C.F.R. § 404.1520(g); Yuckert, 482 U.S. at 146 n.5; 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 challenges the ALJ's determination of his credibility, contending that it fails to meet the standards of 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 7-10. He 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 9-10.

         Contemporaneous with 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, October 27, 2015, see Record at 32, 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 his 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 deemed “the [plaintiff's] statements concerning the intensity, persistence and limiting effects of [his] symptoms . . . not entirely credible[, ]” finding, as of his date last insured, that (i) “the objective medical evidence [did] not establish that [he] [was] as limited as alleged[, ] (ii) treatment records following back surgery in 1998, a heart attack in 2000, and an episode of diabetic ketoacidosis in 2005 indicated that those conditions were “stable” or required “limited” or “conservative” treatment, and the plaintiff was noncompliant with recommended diabetes treatment, and (iii) “[t]he combination of the [plaintiff's] work activity and hobbies suggest[ed] that he retain[ed] sufficient strength and endurance to sustain the limited demands of sedentary work.” Record at 27-29.

         The plaintiff argues that the first two rationales are insufficient, standing alone, to constitute substantial evidence in support of the ALJ's credibility finding, asserting that his activities were not necessarily inconsistent with his complaints of disabling pain. See Statement of Errors at 10. He contends that the ALJ erred in relying on his activities of daily living because (i) those activities did not reflect an ability to engage in sustained full-time employment, and (ii) the ALJ misconstrued a 2003 report of a psychological evaluation as indicating that he restricted his activities because of concern over surveillance. See id.

         As the commissioner rejoins, see Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 16), at 2-6, the ALJ's credibility determination withstands these challenges.

         1. The Plaintiff's Medical Records

         The plaintiff correctly notes that an ALJ may not reject a claimant's subjective allegations solely on the basis that they are unsupported by objective medical evidence. See Statement of Errors at 9-10; see also, e.g., 20 C.F.R. § 404.1529(c)(2) (“[W]e will not reject your statements about the intensity and persistence of your pain or other symptoms or about the effect your symptoms have on your ability to work solely because the available objective medical evidence does not substantiate your statements.”).

         However, that is not what happened here. As noted above, the ALJ articulated several bases for her finding. She did not err in relying in part on inconsistency between the plaintiff's allegations and the objective medical evidence of record. See, e.g., id. (describing objective medical evidence as “a useful indicator to assist us in making reasonable conclusions about the intensity and persistence of your symptoms and the effect those symptoms, such as pain, may have on your ability to work”); Flood v. Colvin, No. 15-2030, 2016 WL 6500641, at *1 (1st Cir. Oct. 20, 2016) (ALJ supportably based credibility determination on “(i) Claimant's history of conservative treatment; (ii) improvement of symptoms with treatment; (iii) a lack of objective medical findings supporting Claimant's allegations of disabling restrictions; and (iv) the extent of Claimant's daily activities”).^[2]

         2. The Plaintiff's Treatment

         In a similar vein, the plaintiff contends that an ALJ may not reject a claimant's subjective allegations solely on the basis of lack of treatment or conservative treatment. See Statement of Errors at 10. Again, that did not happen here. The ALJ properly relied in part on the plaintiff's conservative treatment and failure to follow a prescribed diet (to the extent feasible given his limited budget). See Record at 27-29; Flood, 2016 WL 6500641, at *1; see also, e.g., SSR 96-7p at 139 (a claimant's “statements may be less credible if the level or frequency of treatment is inconsistent with the level of complaints, or if the medical reports or records show that the individual is not following the treatment as prescribed and there are no good reasons for this failure”).^[3]

         3. The Plaintiff's Activities of Daily Living

         The plaintiff finally challenges the ALJ's reliance on his activities of daily living in deeming his allegations less than fully credible. See Statement of Errors at 10.

         The ALJ stated, in relevant part:

[T]he [plaintiff] worked during the alleged period of disability as a self-employed landscaper. [He] confirmed that he mowed lawns during the summer. He asserted that he would only perform this work for a couple of hours per day before experiencing aggravat[ing] pain. He also stated that he lost money every year because he needed to maintain his equipment. Nevertheless, [his] ability to sustain demanding physical activity such as landscaping on a regular basis suggests that he retained significant physical skills. Although [he] suggested that he lost money on the business each year, he remained able to stay in business and earn sufficient revenue to justify continuing to work. The record also refers to surveillance recordings describing activities . . . such as hunting and farming. The [plaintiff] acknowledged that he fishes, spends time at a park that he owns, gardens, and performs light mechanical work and woodworking. Notably, the record indicates that [he] restricted his personal activities because of surveillance concerns rather than physical difficulties. The combination of [his] work activity and hobbies suggest that he retains sufficient strength and endurance to sustain the limited demands of sedentary work.

Id. at 29 (citations omitted).

         The plaintiff complains that “[n]one of the activities cited by the ALJ - working for a couple hours per day as a self-employed landscaper and occasionally engaging in activities such as hunting, gardening, and yard work - necessarily indicate that [his] testimony regarding his symptoms caused by chronic pain . . . should have been disregarded.” Statement of Errors at 10. He adds that the ALJ misconstrued a 2003 psychological evaluation report as evidence that he “restricted his personal activities because of surveillance concerns rather than physical difficulties[.]” Id. (internal quotation marks omitted). I find no error.

         As the commissioner points out, see Opposition at 5, “while a claimant's activities of daily living, standing alone, do not constitute substantial evidence of a capacity to undertake full-time remunerative employment, an [ALJ] properly may take such activities into consideration in assessing the credibility of a claimant's allegations[, ]” Rucker v. Colvin, Civil No. 2:13-CV-218-DBH, 2014 WL 1870731, at *7 (D. Me. May 8, 2014) (citations omitted). The ALJ supportably deemed the wide array of activities in which the plaintiff engaged, including landscaping, hunting, yard work, light mechanical work, and woodworking, inconsistent with his allegations of disabling limitations.

         Beyond this, the ALJ pointed to evidence in the form of 2003 surveillance videotapes indicating that the plaintiff was able to perform this array of activities on a more sustained basis than he claimed. After viewing those videotapes on September 4, 2003, independent medical examiner Peter Esponnette, M.D., described them as revealing “[a]ctivities . . . greatly in excess of [the plaintiff's] reports of activity tolerance at the time of the IME [independent medical examination]” that Dr. Esponnette had performed on July 25, 2003. Record at 542. Dr. Esponnette noted that they showed “an extremely ...