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 work existing in significant numbers in the
national economy. The plaintiff seeks remand on the bases
that the ALJ (i) erroneously evaluated the opinion evidence
of record, (ii) erroneously evaluated her testimony regarding
her symptoms and limitations, and (iii) failed to obtain
medical expert testimony pursuant to Social Security Ruling
83-20 (“SSR 83-20”). See Itemized
Statement of Specific Errors (“Statement of
Errors”) (ECF No. 16) at 1. 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 December 31, 2009, Finding 1, Record at 19; that,
through her date last insured (“DLI”), she had
the severe impairments of scoliosis and sciatica, Finding 3,
id. at 20; that, through her DLI, she had the
residual functional capacity (“RFC”) to perform
light work as defined in 20 C.F.R. § 404.1567(b), with
additional limitations not relevant here, Finding 5,
id. at 22; that, through her DLI, considering her
age (50 years old, defined as an individual closely
approaching advanced age, on her DLI), 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 have
performed, Findings 7-10, id. at 25-26; and that
she, therefore, had not been disabled at any time from June
2, 2008, her alleged onset date of disability, through her
DLI, December 31, 2009, Finding 11, id. at 27. The
Appeals Council declined to review the decision, id.
at 1-3, making the ALJ's 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 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); 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).
Weighing of Opinion Evidence
plaintiff first takes issue with the ALJ's assignment of
little weight to the opinions of two treating physicians,
Markos Poulopoulos, M.D., and Stratton John Shannon, D.O.
See Statement of Errors at 5-8. As the plaintiff
observes, see id. at 5, an ALJ must supply
“good reasons” for the weight given to the
opinion of a treating source, 20 C.F.R. §
404.1527(c)(2). She contends that the ALJ failed to do so
here because his findings regarding both the Poulopoulos and
Shannon opinions were erroneous and unsupported by
substantial evidence. See Statement of Errors at 5.
The commissioner counters that the ALJ supplied the requisite
good reasons, supported by substantial evidence, for his
assignment of little weight to both. See
Defendant's Opposition to Plaintiff's Statement of
Errors (“Opposition”) (ECF No. 18) at 2-7. I
Opinion of Dr. Poulopoulos
acknowledged that Dr. Poulopoulos, a neurologist who
diagnosed the plaintiff with cerebellar ataxia in 2015,
expressed the opinion in a May 2, 2016, letter that, although
“[i]t has not been determined to be exact, . . . [the
plaintiff] has probably more than a 10 year history of
progressive ataxia.” Record at 20, 920. However, the
ALJ gave that opinion little weight, determining that the
plaintiff did not have a medically determinable impairment of
cerebellar ataxia prior to her DLI of December 31, 2009.
See id. at 20.
supplied two reasons for assigning little weight to the
Poulopoulos opinion: that it was “based at least in
part on the subjective reporting” of the plaintiff,
which he deemed unreliable and, hence, could not credit, and
that “there [was] no corroborating evidence in the
contemporaneous medical records” that she was falling
on a regular basis prior to her DLI. Id. at 20-21.
On the first point, he elaborated:
While I do not see an effort on behalf of the [plaintiff] to
mislead, the record suggests her reporting is somewhat
unreliable. Specifically, while [she] reported to Dr.
Poulopoulos that her symptoms of imbalance with falling
started approximately 9 years ago, she told [Suzanne M.
Bourque, M.D.] that “her gait was not abnormal prior to
the frostbite injury” in 2014. At a visit with Dr.
Bourque in 2014, the [plaintiff] reported that some of her
decline in functioning predated the frostbite injury in 2014.
However, the [plaintiff]'s daughter-in-law was present
for the appointment and explained that there had been a
“relatively subacute decline over the last year or
two.” Similarly, while the [plaintiff] testified that
she worked for Woolwich School Department through 2009,
records document she last worked for the school department in
2004. Given the [plaintiff]'s seemingly unreliable
memory, and the lack of corroborating evidence, I cannot
credit her reports concerning the onset of her gait
abnormalities without additional medical evidence. Since I
cannot credit the [plaintiff]'s subjective allegations on
this issue, I likewise am unable to give significant weight
to Dr. Poulopoulos's opinion concerning onset of ataxia,
given that the opinion is based[, ] in part, on the
Id. (citations omitted).
second point, he noted that “even if the
[plaintiff]'s recollection is accurate as to when she
first began experiencing falls, by all accounts [her] decline
has been slow and progressive, and thus while she may have
first fallen prior to the [DLI], there is no corroborating
evidence in the contemporaneous medical records that those
falls occurred on a regular basis.” Id. at 21
(citation omitted). He stated that he had nonetheless
considered all evidence relating to the plaintiff's
physical functioning as of her DLI, regardless of whether
caused by her documented scoliosis or sciatica or undiagnosed
cerebellar ataxia. See id.
plaintiff takes issue with the ALJ's handling of the
Poulopoulos opinion on several bases. First, she argues that,
although the ALJ cited the 2014 Bourque records as evidence
that her gait was not affected by cerebellar ataxia prior to
a frostbite injury in 2014, Dr. Bourque was puzzled by her
report that her gait was not abnormal prior to the frostbite
injury, and her daughter-in-law had known her for only three
years, as a result of which the daughter-in-law's
“report provides no evidence at all to support the
absence of an impairment prior to [her] DLI, contrary to the
ALJ's finding.” Statement of Errors at 5-6
as the commissioner rejoins, see Opposition at 3,
the ALJ did not cite the Bourque records as affirmative
evidence that the plaintiff had no gait abnormality prior to
her DLI but, rather, as evidence that the plaintiff's own
reports were unreliable, as a result of which ...