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Christopher D. v. Berryhill

United States District Court, D. Maine

August 24, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant


          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 basis that the ALJ's residual functional capacity (“RFC”) determination is unsupported by substantial evidence because she impermissibly discounted his testimony regarding the extent to which his pain limited him and failed to give adequate weight to the opinions of treating and examining physicians. See Plaintiff's Itemized Statement of Specific Errors and Fact Sheet (“Statement of Errors”) (ECF No. 9) at [6]-[10]. I conclude that the ALJ's RFC determination is supported by substantial evidence. Accordingly, I affirm the commissioner's decision.[2]

         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 December 31, 2018, Finding 1, Record at 22; that he had the severe impairment of a spine disorder, Finding 3, id.; that he had the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b) in that he could lift and/or carry 20 pounds occasionally and 10 pounds frequently, sit for six hours in an eight-hour workday, and stand and/or walk for a total of at least four hours in an eight-hour workday, that he could occasionally crawl, crouch, kneel, stoop, balance, and climb, and that he could not perform constant overhead work bilaterally, Finding 5, id. at 24; that, considering his age (36 years old, defined as a younger individual, on his alleged disability onset date, December 17, 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 he could perform, Findings 7-10, id. at 32; and that he, therefore, had not been disabled from December 17, 2013, through the date of the decision, August 26, 2016, Finding 11, id. at 33. 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 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. Assessment of Plaintiff's Statements Concerning Symptoms

         The ALJ found that, although the plaintiff's “medically determinable impairment[] could reasonably be expected to cause the alleged symptoms[, ]” his “statements concerning the intensity, persistence and limiting effects of these symptoms [we]re not entirely consistent with the medical evidence and other evidence in the record[.]” Record at 28. Specifically, she deemed his allegations not fully supported by his treatment history or activities of daily living and “undermined by contradictory statements and facts in the record.” Id. at 28-30.

         The plaintiff contends that this analysis transgressed Social Security Ruling 96-7p (“SSR 96-7p”) in that the ALJ created inconsistencies where none existed. See Statement of Errors at [6]-[7]. He argues that, contrary to the ALJ's findings, his activities of daily living were consistent with his subjective allegations, his statement that he had right foot drop was consistent with the underlying medical evidence of record, and his reports to various providers about the reasons his back impairment became disabling in December 2013 were consistent with one another. See id. at [6]-[9].

         As a threshold matter, as the commissioner observes, see Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 15) at 2, Social Security Ruling 16-3p (“SSR 16-3p”), rather than SSR 96-7p, supplies the governing rule in this case, the ALJ's decision having issued on August 26, 2016, see Record at 33.[3] Accordingly, I refer herein to SSR 16-3p, although there is no material difference between the two rulings for purposes of the instant appeal.[4]

         Pursuant to SSR 16-3p, the factors that an ALJ is to consider in evaluating the intensity, persistence, and limiting effects of an individual's symptoms include (i) daily activities, (ii) “[t]he type, dosage, effectiveness, and side effects of any medication an individual takes or has taken to alleviate pain or other symptoms[, ]” and (iii) “[t]reatment, other than medication, an individual receives or has received for relief of pain or other symptoms[.]” SSR 16-3p at 671.

         1. Activities of Daily Living

         The ALJ concluded that the plaintiff's “activities of daily living and functioning belie the severity of the symptoms alleged[, ]” explaining:

For example, he testified he lived with his parents, managed finances, watched television, did stretching exercises, performed self-care, and rode in a car. Exhibit 5E dated January 28, 2015, by the [plaintiff] indicated he lived in a house with family, watched television, read, did stretching exercises, walked, performed self-care with some difficulty, took medication independently, prepared simple meals, did small loads of laundry, went outside most days, rode in a car, went out alone, drove until recently, shopped, managed finances, talked on the phone, went out with a friend weekly, and could follow written/oral instructions. . . . Exhibit 19F reflected he went hunting and fishing on occasion, read, watched television, enjoyed sitting by the river and watching nature, walked, did stretching ...

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