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Dale W v. Berryhill

United States District Court, D. Maine

May 18, 2018

DALE W., Plaintiff
v.
NANCY A. BERRYHILL, Deputy Commissioner of Operations, Performing the Duties and Functions not Reserved to the Commissioner of Social Security, Defendant

          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 work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that (i) the ALJ failed to consider evidence admitted at the administrative hearing, (ii) the ALJ erred in his assessment of the plaintiff's subjective complaints, (iii) the ALJ's residual functional capacity (“RFC”) formulation is unsupported by substantial evidence, and (iv) the Appeals Council erred in its rejection of the plaintiff's request for a review of the ALJ's decision. See Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 13) at 8-15. 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; 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 last met the insured status requirements of the Social Security Act on December 31, 2015, Finding 1, Record at 14; that he had the severe impairments of residuals of traumatic cervical spine and closed head injury status-post multilevel fusion, bilateral lower extremity osteoarthritis, right upper extremity traumatic injury residuals status-post internal fixation hardware, adjustment reaction with depressed mood, and an antisocial personality disorder, Finding 3, id.; that he had the RFC to perform medium work as defined in 20 C.F.R. § 404.1567(c) except that he was limited to no more than occasional postural adaptations (i.e., stooping, kneeling, crouching, crawling, balancing, or climbing ramps or stairs), was precluded from all exposure to hazards such as unprotected heights, dangerous machinery, or climbing ladders, ropes, or scaffolds, and was relegated to simple, routine, repetitive tasks entailing no more than occasional exercise of independent judgment or discretion and no more than occasional changes in work processes, Finding 5, id. at 16; that, considering his age (53 years old, defined as an individual closely approaching advanced age, on his date last insured, December 31, 2015), [2]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, Findings 7-10, id. at 21; and that he, therefore, had not been disabled from August 1, 2011, his alleged onset date of disability, through December 31, 2015, his date last insured, Finding 11, id. at 22. The Appeals Council declined to review the decision, id. at 1-4, 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 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); 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 Failure To Consider Evidence Admitted at the Hearing

         The plaintiff first argues that the ALJ erred in failing to consider evidence that was admitted at his June 16, 2016, hearing and made part of the record. See Statement of Errors at 8-9. At the outset of the hearing, the plaintiff's counsel requested that the ALJ admit a report of a consultative examination performed two days earlier, on June 14, 2016, by Douglas H. Buxton, M.D., of Maine Medical Partners Neurosurgery & Spine. See Record at 361, 824-29. The ALJ granted that request, stating that he had “determined that there is good cause and we will make that part of the record.” Id. at 362. The Buxton report was indeed made part of the record, see id. at 824-29; however, in his decision, the ALJ stated that he had not found good cause to enter that evidence into the record and made no further mention of it, see id. at 12-21.

         As the commissioner concedes, see Defendant's Opposition to Plaintiff's Itemized Statement of Errors (“Opposition”) (ECF No. 16) at 2, this was error. However, the parties disagree about whether the error was harmless. Compare id. at 2-4 with Statement of Errors at 9. For the reasons that follow, I am persuaded that it was.

         The plaintiff contends that the error was reversible because, in deeming his testimony regarding the severity and functional effects of his symptoms, including pain, “not entirely consistent with the medical evidence and other evidence in the record[, ]” the ALJ erroneously stated that “there [we]re no medical records from 2015 or 2016, suggesting that the [plaintiff]'s condition [wa]s stable and improved.” Statement of Errors at 9; Record at 19-20. He asserts that, to the contrary, as evidenced by the 2016 Buxton record, his cervical spine condition continued to deteriorate, and he continued to suffer pain and functional limitations of sufficient severity that he eventually required further surgery. See Statement of Errors at 9.

         However, as the commissioner observes, see Opposition at 2-3, the Buxton report postdates the plaintiff's date last insured, December 31, 2015, by nearly six months, and nothing therein makes clear that the plaintiff's cervical spine condition had deteriorated as of December 31, 2015. Indeed, Dr. Buxton stated, “Unfortunately, it sounds as though [the plaintiff] has begun to develop a right C8 radicular pattern which is likely the source of his right arm pain and weakness and numbness that involves the third through fifth digits.” Record at 825. Dr. Buxton noted that he had “ordered updated cervical spine x-rays and MRI to reassess the status of the C7-T1 segment” and that, with the benefit of the MRI study, the plaintiff would follow up with Rajiv D. Desai, M.D., “to determine whether further surgical intervention [wa]s required for this issue.” Id.

         As the commissioner points out, see Opposition at 2-4, this court held an ALJ's failure to consider evidence postdating a claimant's date last insured harmless in Stain v. Astrue, No. 2:11-CV-225-DBH, 2012 WL 1067867 (D. Me. Mar. 28, 2012) (rec. dec., aff'd Apr. 17, 2012), and noted in Pierce v. Astrue, No. 1:10-cv-242-JAW, 2011 WL 2678919 (D. Me. July 7, 2011) (rec. dec., aff'd July 29, 2011), that a medical opinion phrased in the present tense is not indicative of a claimant's condition prior to his or her date last insured, see Stain, 2012 WL 1067867, at *5; Pierce, 2011 WL 2678919, at *5.

         That is so here. While Dr. Buxton obtained the plaintiff's medical history, he evaluated his condition as of the date of the examination, June 14, 2016. See Record at 824-29. And, although he noted that the plaintiff's symptoms suggested that he had begun to develop a right C8 radicular pattern and that further surgery might be necessary, he stated that any decision regarding surgery would be made only after fresh diagnostic studies were reviewed by Dr. Desai. See id. at 825 (noting that “[n]o recent cervical spine imaging has been obtained”).

         Thus, although the ALJ erred both in declining to admit evidence he had already admitted and in stating that there were no medical records from 2016, nothing in the Buxton record could have made a material difference in his assessment that the plaintiff's spine condition was stable and improved as of his date last insured, December 31, 2015. The error, accordingly, is harmless.

         B. The ALJ's Evaluation of the Plaintiff's Subjective Complaints

         The plaintiff next argues that the ALJ erred in evaluating his testimony regarding his subjective complaints, in violation of Social Security Ruling 16-3p (“SSR 16-3p”). See Statement of Errors at 9-13.[3]

         The ALJ found that the plaintiff's “statements concerning the intensity, persistence and limiting effects of [his] symptoms [we]re not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” Record at 19. The plaintiff construes this conclusion to have been based on the following 10 findings:

[The ALJ's] finding that “[c]uriously, the hospital records for the [plaintiff']s ice shoot [sic] accident are not contained in the medical evidence”; (2) evidence of past alcohol abuse in the record; (3) evidence of a past incarceration for drug trafficking; (4) evidence of use of non-prescribed medications and diversion of prescribed medications; (5) evidence of “normal” or “mild” examination findings and lack of treatment for knee pain or left shoulder pain “during the relevant time”; (6) the psychological consultative examination report of Donna Gates, Ph.D.; (7) a finding that “[i]t is unclear where the [plaintiff's] diagnosis of anxiety came from” (followed immediately by a finding that anxiety was diagnosed by [the plaintiff's] primary care provider Dr. John Dickens); (8) a finding that “[t]here is no evidence the [plaintiff] was treated for back pain as he has had no physical therapy, acupuncture, or steroid injections related to his back”; (9) findings that [the plaintiff] was able to perform activities of daily living and spend the winter of 2014 in Florida; and (10) a finding that “there are no medical records from 2015 or 2016, suggesting that the [plaintiff]'s condition is stable and improved.”

         Statement of Errors at 10-11 (citing, and quoting, Record at 17-20). He complains, as a general matter, that the ALJ failed to explain which of his symptoms he found “consistent or inconsistent with the evidence” in the record and how his evaluation of the plaintiff's symptoms led to that conclusion. Id. at 11 (quoting SSR 16-3p, reprinted in West's Social Security Reporting Service Rulings 1983-1991 (Supp. 2017), at 672). He then takes issue with each of the 10 findings on which he construes the ALJ's partial rejection of his claimed symptoms to have been based. See id. at 11-13.

         However, as the commissioner contends, the ALJ's analysis survives scrutiny. See Opposition at 4-9.

         First, the ALJ provided an adequate explanation of his assessment of the plaintiff's claimed symptoms pursuant to SSR 16-3p, articulating reasons why he deemed particular categories of alleged symptoms (knee pain, left shoulder pain, neck pain, depression, anxiety, back pain, and muscle spasms in the ...


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