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Valerie R. v. Berryhill

United States District Court, D. Maine

October 21, 2018

VALERIE R., Plaintiff
v.
NANCY A. BERRYHILL, Acting 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 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 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 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).

         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 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).

         I. Discussion

         A. Weighing of Opinion Evidence

         The 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 agree.

         1. Opinion of Dr. Poulopoulos

         The ALJ 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.[2]

         The ALJ 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 [plaintiff]'s self-report.

Id. (citations omitted).

         On the 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.

         The 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 (citations omitted).

         However, 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 ...


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