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Nichole P. v. Berryhill

United States District Court, D. Maine

June 1, 2018

NICHOLE P., Plaintiff
v.
NANCY A. BERRYHILL, Deputy Commissioner for 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”) 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 evaluating her testimony and relied on a vocational expert's response to a hypothetical question positing a residual functional capacity (“RFC”) different from that which the ALJ ultimately assessed. See Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 17) at 7-12.[2] 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, 2013, Finding 1, Record at 11; that she had the severe impairments of peripheral arterial disease, emphysema, bipolar disorder, and a personality disorder with cluster B traits, Finding 3, id. at 12; that she had the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except that, inter alia, she could lift and carry 20 pounds occasionally and 10 pounds frequently, sit and stand for a maximum of six hours in an eight-hour workday, was limited to frequent climbing of ramps or stairs, could have no exposure to respiratory irritants, and could respond appropriately to coworkers, supervisors, and usual work situations not involving the public, Finding 5, id. at 15; that, considering her age (37 years old, defined as a younger individual on her alleged disability onset date, April 13, 2013), 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 21; and that she, therefore, had not been disabled from April 13, 2013, through the date of the decision, February 3, 2016, Finding 11, id. at 22. 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).

         The statement of errors also implicates 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), 416.920(f); Bowen, 482 U.S. at 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), 416.920(f); Social Security Ruling 82-62 (“SSR 82-62”), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.

         I. Discussion

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

         The ALJ provided several reasons for deeming the plaintiff's “statements concerning the intensity, persistence and limiting effects” of her symptoms “not entirely credible[.]” Record at 17. The plaintiff challenges those pertaining to her alleged walking, breathing, and social difficulties. See Statement of Errors at 8-10. For the reasons that follow, I find no reversible error in the ALJ's assessment of those allegations.

         Social Security Ruling 96-7p (“96-7p”), which was in effect at the time of the ALJ's decision, provides that a “determination or decision 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.[3]

         “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 basis on which to disturb the credibility determination made in this case.

         1. Walking Difficulties

         The ALJ acknowledged that the plaintiff alleged that, as a result of her peripheral arterial disease, (i) she could not “stand for a long time” and her pain was “constant[, ]” (ii) she had “painful and weak legs[, ]” (iii) “her hips lock[ed] up to 20 times each day[, ]” and (iv) this was “triggered by any pressure on her legs, and in order to treat it she need[ed] to lay down and rest for between 30 and 45 minutes.” Record at 16. He further noted that she had alleged difficulty walking up stairs. See id. at 17.

         Nonetheless, the ALJ observed that Mark E. Bolduc, M.D., had performed exercise testing on March 25, 2013, for a bilateral lower extremity arterial evaluation and “found ‘no significant arterial insufficiency at rest[, and] [m]oderate arterial insufficiency in the right lower extremity with exercise[, with] [n]o significant arterial insufficiency noted on the left.'” Id. (quoting id. at 293). He added that, although the plaintiff had reported pain and weakness in the right leg and difficulty walking up stairs, she “ambulate[d] without assistance[, ] and her record does not contain instances of falls or an antalgic gait.” Id. “In fact, ” he noted, “she has been recorded as having ‘no difficulty walking.'” Id. (quoting id. at 699).

         He recounted that the plaintiff again underwent an arterial study with exercise on May 6, 2014, following which J. Hendrik Jordaan, M.D., “opined that there was no significant arterial insufficiency in either extremity at rest or with exercise.” Id. He added:

These test results were consistent with the ones that Dr. Bolduc had performed a year prior, and in May of 2014 Dr. . . . Bolduc described the [plaintiff] as a “stable peripheral vascular disease patient.” He noted that she was “actually doing quite well” and she had “no symptoms whatsoever.”

Id. (quoting id. at 614-15).

         The plaintiff argues that, in assessing her allegations of walking difficulties, the ALJ erred in citing evidence that she had no significant arterial insufficiency at rest “while ignoring evidence from the same cited testing and examination reports indicating that [she] was able to perform walking exercise testing for less than two minutes before having to stop due to pain on both occasions of testing in 2013 and 2014.” Statement of Errors at 9. She adds that the ALJ ...


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