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John M. v. Berryhill

United States District Court, D. Maine

November 30, 2018

JOHN M., Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          MEMORANDUM 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 past relevant work as a collector and a customer service representative. The plaintiff seeks remand on the bases that, in determining his residual functional capacity (“RFC”), the ALJ erroneously (i) discounted two treating provider opinions, those of treating nurse practitioner Melissa C. Hackett, F.N.P.-C., co-signed by treating physician Linda Hermans, M.D., and treating nurse practitioner Meneah R. Haworth, F.N.P., (ii) gave great weight to the opinion of an agency nonexamining consultant, Jonathan Jaffe, M.D., and (iii) ignored a finding by the State of Maine Department of Labor (“DOL”), Bureau of Rehabilitation Services, that he was significantly disabled. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 13) at 3-15.[2] I find no error and, accordingly, 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, 2019, Finding 1, Record at 12; that he had the severe impairments of congestive heart failure, hypertension, diabetes mellitus, and obesity, Finding 3, id.; that he had the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b), except that he could stand and/or walk for about two hours in an eight-hour workday and had additional postural and environmental limitations, Finding 5, id. at 14; that he was capable of performing past relevant work as a collector and a customer service representative, neither of which required the performance of work precluded by his RFC, Finding 6, id. at 18; and that he, therefore, was not disabled from June 5, 2014, his alleged onset date of disability, through October 20, 2016, the date of the decision, Finding 7, id. at 19. 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 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); Bowen v. Yuckert, 482 U.S. 137, 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); Social Security Ruling 82-62 (“SSR 82-62”), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.

         I. Discussion

         A. ALJ's Weighing of Expert Opinions of Record

         The ALJ explained that she gave the January 7, 2016, opinion of Dr. Jaffe “great weight” because it was “consistent with the [plaintiff]'s impairments, his conservative treatment, his positive response to that treatment, and his activities of daily living.” Record at 17; see also id. at 94-99.

         The ALJ gave “little weight” to the June 25, 2015, opinion of FNP Haworth, who had indicated, inter alia, that the plaintiff could not walk a city block, could sit or stand/walk for less than two hours in an eight-hour workday, would require the option to shift at will from sitting, standing, or walking, would often require unscheduled breaks throughout a workday, could never lift or carry any weight, could never twist, had significant limitations in repetitive reaching, handling, or fingering that FNP Haworth had been unable to evaluate, and was likely to be absent from work for more than four days per month. See id. at 17-18, 277-79.[3] The ALJ explained that she found that “the evidence of record, including the [plaintiff]'s own reports to his doctors that he can walk at least a quarter of a mile, as well as his activities of daily living such as volunteering 20 hours per week, do not support a finding that the [plaintiff] is this limited.” Id. at 18. She added, “Likewise, the [plaintiff]'s routine and conservative treatment is not indicative of limitations as severe as those outlined by [FNP] Haworth in her opinion.” Id.

         Finally, the ALJ gave “little weight” to the June 23, 2016, opinion of FNP Hackett/Dr. Hermans that the plaintiff could lift and/or carry less than 10 pounds occasionally, could never lift frequently, could stand and/or walk for less than two hours in an eight-hour workday, needed to periodically alternate between sitting and standing, could not consistently push or pull with his upper or lower extremities bilaterally, could never climb, kneel, crouch, crawl, or stoop, could only occasionally balance, could reach, finger, and feel for less than two-and-a-half hours a day, and had limitations in his ability to tolerate temperature extremes, dust, vibration, humidity, wetness, hazards, and pulmonary irritants. Id. at 18, 422-25. The ALJ explained that this opinion was “unreasonably restrictive given the [plaintiff]'s activities of daily living (including volunteer work, shopping, and driving), as well as his reports to his doctors of improvement with conservative treatment.” Id. at 18.

         1. Hackett/Hermans and Haworth Opinions

         The plaintiff contends, and the commissioner does not contest, that the Hackett/Hermans opinion qualifies as that of a treating physician, Dr. Hermans. See Statement of Errors at 6; Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 15) at 4-6. The ALJ, accordingly, was obliged to supply “good reasons” for the weighing of that opinion. See, e.g., 20 C.F.R. §§ 404.1527(a)(2) (defining a “treating source” as “your own acceptable medical source who provides you, or has provided you, with medical treatment and evaluation and who has, or has had, an ongoing treatment relationship with you”), 404.1527(c)(2) (stating, “We will always give good reasons in our notice of determination or decision for the weight we give your treating source's medical opinion.”).

         As the commissioner notes, see Opposition at 3-4 & n.1, FNP Haworth did not qualify as a “treating source” pursuant to the regulations in place at the time of the ALJ's decision, see 20 C.F.R. §§ 404.1502(a)(7), 404.1513(a)(2), 404.1527(a)(2).[4] The ALJ, thus, was not required to supply “good reasons” for the weight given to her opinion. See, e.g., King v. Astrue, Civil No. 09-337-P-H, 2010 WL 4457447, at *4 (D. Me. Oct. 31, 2010) (rec. dec., aff'd Nov. 22, 2010) (ALJ not expressly required to supply “good reasons” for discounting the opinion of a source who is not an acceptable medical source). Instead, the ALJ was obliged only to “explain the weight given to” her opinion “or otherwise ensure that the discussion of the evidence . . . allows a claimant or subsequent reviewer to follow [her] reasoning[.]” Social Security Ruling 06-03p, reprinted in West's Social Security Reporting Service Rulings 1983-1991 (Supp. 2018) (“SSR 06-03p”), at 331.[5] The ALJ's discussion satisfied that obligation here.

         In any event, the ALJ supplied good reasons for according little weight to both the Hackett/Hermans and Haworth opinions: that each was unreasonably restrictive in view of the plaintiff's activities of daily living and reports to his doctors of improvement with conservative treatment. See Record at 17-18. “[I]nconsistency with other substantial evidence of record [is a] well-recognized bas[i]s for affording a treating source's medical opinion little or no weight.” Campagna v. Berryhill, No. 2:16-cv-00521-JDL, 2017 WL 5037463, at *4 (D. Me. Nov. 3, 2017) (rec. dec., aff'd Jan. 2, 2018).

         The plaintiff, nonetheless, contends that the ALJ erred in according the Hackett/Hermans and Haworth opinions little weight because the opinion of a treating source generally is entitled to greater weight than that of a nonexamining source and because, unlike Dr. Jaffe, FNP Hackett, Dr. Hermans, and FNP Haworth accounted for his back pain in assessing limitations. See Statement of Errors at 5-8. At oral argument, his counsel elaborated that Dr. Jaffe lacked the benefit of review not only of the Hackett/Hermans and Haworth opinions but also of evidence of worsening back pain following the plaintiff's 16-day hospitalization in February 2016 for cellulitis and sepsis.[6]She noted that this later evidence was available to FNP Hackett and Dr. Hermans. Finally, she asserted that the ALJ's reliance on both the plaintiff's activities of daily living and conservative treatment was misplaced.

         For the reasons discussed below, I find no error in the ALJ's reliance on the Jaffe opinion. Nor do I find error in her reliance on the plaintiff's ...


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