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Jennifer C. v. Berryhill

United States District Court, D. Maine

June 4, 2018

JENNIFER C., 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 The plaintiff seeks remand on the bases that the ALJ (i) applied the wrong standard, the now-superseded Social Security Ruling 96-7p (“SSR 96-7p”), in assessing her testimony concerning the intensity, persistence, and limiting effects of her symptoms, and (ii) erroneously concluded that she had no medically-determinable impairment of fibromyalgia. See Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 17) at 4-9. I find no reversible error, and, accordingly, I 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 15; that she had the severe impairment of anxiety, Finding 3, id.; that she had the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels, but with a limitation in her concentration, persistence, and pace with the ability to understand, remember, and carry out simple tasks, Finding 5, id. at 17; that, considering her age (45 years old, defined as an individual closely approaching advanced age, on her alleged disability onset date, January 1, 2009), 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 23-24; and that she, therefore, had not been disabled from January 1, 2009, through the date of the decision, March 18, 2016, Finding 11, id. at 25. 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 2 of the sequential evaluation process. Although a claimant bears the burden of proof at Step 2, it is a de minimis burden, designed to do no more than screen out groundless claims. McDonald v. Sec'y of Health & Human Servs., 795 F.2d 1118, 1124 (1st Cir. 1986). When a claimant produces evidence of an impairment, the commissioner may make a determination of non-disability at Step 2 only when the medical evidence “establishes only a slight abnormality or [a] combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work even if the individual's age, education, or work experience were specifically considered.” Id. (quoting Social Security Ruling 85-28).

         I. Discussion

         A. Subjective Symptom Evaluation

         The plaintiff testified that (i) she felt she was disabled as a result of her fibromyalgia and anxiety, the symptoms of which she stated left her “exhausted” after “just being out more than two or three hours, ” (ii) she could sit in one place for between 15 and 20 minutes or stand in one place for 20 or 25 minutes before having to move, (iii) she could lift between 10 and 15 pounds, (iv) she suffered from “constant” headaches on a daily basis and panic attacks roughly once per month, (v) her anxiety “always” made her feel nauseous and “like [she] ha[d] butterflies in [her] chest[, ]” and (vi) she had “constant” pain in her hands, forearms, and the front of her ankles. Record at 34, 39-40, 45, 47-49.

         The ALJ articulated several reasons why she deemed the plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms “not entirely credible[, ]” id. at 19, including that (i) “her allegations [we]re not supported by the record[, ]” which reflected “little change in her functional status[, ]” (ii) “[s]he ha[d] . . . not followed medical advice regarding the appropriate use of medication, or counseling to address her mood issues[, ]” (iii) she engaged in activities of daily living, including social interaction, that were inconsistent with her allegation that she suffered from disabling anxiety, and (iv) “she was not entirely forthcoming at the hearing when asked about substance abuse issues[, ]” id. at 22-23.

         The plaintiff contends that, in so doing, the ALJ wrongly applied SSR 96-7p instead of Social Security Ruling 16-3p (“SSR 16-3p”), which had taken effect on March 16, 2016, two days prior to the issuance of the ALJ's decision, superseding SSR 96-7p. See Statement of Errors at 4-7. She contends that neither the ALJ's individual findings nor her explanation for them passes muster pursuant to SSR 16-3p, warranting remand. See id.

         The commissioner rejoins that, because she clarified on March 24, 2016, that the effective date of SSR 16-3p was March 28, 2016, the ALJ correctly applied SSR 96-7p. See Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 19) at 2; Social Security Ruling 16-3p; Titles II and XVI: Evaluation of Symptoms in Disability Claims, 81 Fed. Reg. 15776, 15776 (Mar. 24, 2016).[2] In the alternative, she argues that any error in applying SSR 96-7p was harmless. See Opposition at 2-12.

         The plaintiff is correct that the ALJ should have applied SSR 16-3p. The commissioner's regulations provide that:

We publish Social Security Rulings in the Federal Register under the authority of the Commissioner of Social Security. They are binding on all components of the Social Security Administration. These rulings represent precedent final opinions and orders and statements of policy and interpretations that we have adopted.

20 C.F.R. § 402.35(b)(1). Because, as of March 18, 2016, the commissioner had not yet corrected the effective date of SSR 16-3p, the ALJ was bound as a “component[] of the Social Security Administration” to apply SSR 16-3p in evaluating the plaintiff's subjective symptoms. Id.; see also Social Security Ruling 16-3p; Titles II and XVI: Evaluation of Symptoms in Disability Claims, 81 Fed. Reg. 14166, 14166-67 (Mar. 16, 2016) (setting forth effective date of March 16, 2016, for SSR 16-3p; advising, “This SSR will remain in effect until we publish a notice in the Federal Register that rescinds it, or we publish a new SSR that replaces or modifies it.”).

         Nonetheless, I agree with the commissioner that the error is harmless.

         As the plaintiff's counsel emphasized at oral argument, in adopting SSR 16-3p, the commissioner “eliminat[ed] the use of the term ‘credibility' from [her] sub-regulatory policy” because her “regulations do not use this term.” SSR 16-3p, reprinted in West's Social Security Reporting Service Rulings 1983-1991 (Supp. 2017), at 665. She “clarif[ied] that subjective symptom evaluation is not an examination of an individual's character[, ]” id., noting, “In evaluating an individual's symptoms, [ALJs] will not assess an individual's overall character or truthfulness in the manner typically used during an adversarial court litigation[, ]” id. at 674.[3]

         In deeming the plaintiff's subjective allegations only partially “credible” because “she was not entirely forthcoming at the hearing when asked about substance abuse issues[, ]” Record at 19, 22, the ALJ made precisely the type of assessment of a claimant's overall character or truthfulness prohibited by SSR 16-3p.

         Nevertheless, the ALJ offered additional reasons for her assessment of the plaintiff's subjective allegations. For the reasons discussed below, those reasons pass muster pursuant to SSR 16-3p, notwithstanding the plaintiff's arguments to the contrary. The ALJ's analysis, accordingly, survives scrutiny pursuant to the applicable deferential standard of review. See, e.g., Frustaglia v. Sec'y of Health & Human Servs., 829 F.2d 192, 195 (1st Cir. 1987) (“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.”); Flood v. Colvin, No. 15-2030, 2016 WL 6500641, at *1 (1st Cir. Oct. 20, 2016) (even assuming that ALJ erred in considering claimant's drug-seeking behavior in assessing his credibility, “any error would be harmless because substantial evidence of record supports the ALJ's credibility determination”).

         Those additional reasons are as follows:

         Objective medical evidence.

         The ALJ found that “the record as a whole does not support [the plaintiff's] statements of ...


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