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Faye W. v. Berryhill

United States District Court, D. Maine

January 18, 2019

FAYE W., 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 past relevant work as a caregiver and an auto clerk. The plaintiff seeks remand on the basis that the ALJ erred in several respects in weighing the expert opinion evidence of record. See Plaintiff's Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 10) at 3-17. 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, 2018, Finding 1, Record at 77; that she had the severe impairments of cervical dystonia with head tremors, mild degenerative disc disease of the thoracic spine, degenerative disc disease of the cervical spine at C5-C6 and C6-C7 with facet disease at C3-C4, C4-C5, and C6-C7, and residual right inguinal pain from nerve entrapment surgery, Finding 3, id. at 78; that she had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b), except that she could no more than occasionally rotate, flex, or extend her neck, no more than occasionally push or pull with the bilateral upper extremities, frequently reach with the right upper extremity, only occasionally reach with the left upper extremity, no more than occasionally reach overhead with the bilateral upper extremities, frequently handle and finger bilaterally, and needed to avoid excessive vibration, dangerous moving machinery on the work floor, and unprotected heights, Finding 5, id. at 82; that she was capable of performing past relevant work as a caregiver and an auto clerk, which did not require the performance of work-related activities precluded by her RFC, Finding 6, id. at 88; and that she, therefore, had not been disabled from May 1, 2013, her alleged onset date of disability, through December 29, 2016, the date of the decision, Finding 7, id. at 89. 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. Background

         The record contained five opinions from four experts: that of agency nonexamining consultant Margel Guie, D.O., dated September 25, 2014, see Record at 66-68; that of treating primary care physician Sarah B. Shinn, M.D., dated March 18, 2015, see id. at 317-20; those of treating physiatrist Peter G. Arabadjis, M.D., dated November 7, 2016 (“First Arabadjis Opinion”), and November 14, 2016 (“Second Arabadjis Opinion”), see id. at 533-39; and the undated opinion of a later treating primary care physician, Thomas H. Bugbee, M.D., see id. at 540.[2]

         The ALJ gave “great weight” to Dr. Guie's opinion that the plaintiff could perform a restricted range of light work with additional environmental limitations, explaining:

In support of her determination, . . . [Dr. Guie] cited the [plaintiff]'s ability to perform activities of daily living, playing cards, and her improvement with medication. . . . [Dr. Guie] had the opportunity to review the longitudinal medical record[, ] and her opinion is consistent with Dr. Arabadjis's assessment from November 7, 2016. In addition, the [plaintiff] did not allege any new impairments after her assessment. Furthermore, the new evidence submitted does not support more limitations.

Id. at 86-87.

         The ALJ gave “limited weight” to the portion of the Shinn opinion in which Dr. Shinn assessed the plaintiff's ability to walk, stand, and sit, which was based on the plaintiff's reporting and cited no “objective measures[, ]” “great weight” to the portion in which Dr. Shinn indicated that the plaintiff could “lift up to 20 pounds and rotate her neck occasionally and ha[d] no manipulative limitations[, ]” and “little weight” to the portion in which Dr. Shinn indicated that the plaintiff would miss more than four days of work per month. Id. at 87.

         The ALJ gave “great weight” to the First Arabadjis Opinion, which was “consistent with the light exertional level with some additional reaching limitations, especially of the non-dominant left upper extremity[, ]” contained no postural limitations, and indicated that the plaintiff “could tolerate no more than occasional exposure to vibration and no more than frequent exposure to moving mechanical parts” and “could no more than occasionally move her neck.” Id. (citation omitted). He explained that “the limitations presented are supported by a narrative discussion[, ]” Dr. Arabadjis was “a specialist in the field of Physiatry, who ha[d] treated the [plaintiff] since December of 2015[, ]” and the opinion was “consistent with the [plaintiff]'s positive response to treatment and physical examination findings.” Id.

         The ALJ gave “little weight” to the Second Arabadjis Opinion, explaining that it was submitted “only a week after . . . his first opinion that was supported by a narrative discussion[, ]” was “based solely from the [plaintiff]'s subjective reporting without any citations to any objective medical evidence[, ]” and was “entirely inconsistent with her activities of daily living, such as driving, and her positive response to treatment.” Id. He noted that, as Dr. Arabadjis had stated in his revised assessment, the plaintiff had “described a ‘significant benefit' from Botox injections.” Id.

         Finally, the ALJ gave “little weight” to the Bugbee opinion, which “state[d] [that] the [plaintiff was] incapable of full-time employment[, ]” because, “[w]hile the [plaintiff] sees Dr. Bugbee on a regular basis, his opinion consists mostly of the [plaintiff]'s subjective complaints and vague statements about her inability to work, which is a determination reserved to the [c]ommissioner (Social Security [Ruling] 96-5p).” Id. He added that even Dr. Bugbee “admit[ted] in his opinion that the [plaintiff] has the ability to escort others to their appointments” and that his opinion was “not consistent with the other opinion evidence in the record that states that the [plaintiff] can perform at the light exertional level, with some manipulative and environmental limitations, and range of motion of the neck deficits.” Id.

         B. Analysis

         The plaintiff contends that the ALJ failed to supply the requisite good reasons for rejecting both the Second Arabadjis Opinion and the Bugbee opinion, having ignored factors that supported them and supplied insufficient and/or factually inaccurate rationales for discounting them. See Statement of Errors at 8-17; see also, e.g., 20 C.F.R. § 404.1527(c)(2) (the commissioner will “always give good reasons in [her] notice of determination or decision for the weight [she] give[s] [a claimant's] treating source's medical opinion”).

         The commissioner rejoins that the ALJ's resolution of conflicts in the expert opinion evidence is supported by substantial evidence, in that he (i) “accurately recognized that Dr. Arabadjis drafted two contradictory opinions within one week of each other, and . . . supportably credited the opinion that was the most consistent with the evidence of record[, ]” and (ii) “permissibly assigned little weight to the opinion of Dr. Bugbee, whose opinion that [the] [p]laintiff could not perform full-time work was entitled to no special significance as it was an opinion on an issue reserved to the [c]ommissioner[, ]” and whose “vague statements about [the] [p]laintiff's limited ability to work” the ALJ supportably deemed “inconsistent with her positive response to treatment, her sporadic treatment history, her ...


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