United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
H. Rich III United States Magistrate Judge.
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
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).
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).
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.
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).
The ALJ'S Assessment of the Plaintiff's
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.
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.
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.
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.
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.
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
The Plaintiff's Medical Records
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.”).
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
The Plaintiff's Treatment
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
The Plaintiff's Activities of Daily Living
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.
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).
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.
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
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 ...