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Ronald A. v. Berryhill

United States District Court, D. Maine

March 24, 2019

RONALD A., 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 or, in the alternative, work existing in significant numbers in the national economy. The plaintiff seeks remand on eight bases. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 20) at 5-19.[2] For the reasons that follow, I find no reversible 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, 2016, Finding 1, Record at 19; that he had the severe impairment of degenerative joint disease of the left thumb (status post October 2013 suspensionplasty), Finding 3, id.; that he had the residual functional capacity (“RFC”) to perform medium work as defined in 20 C.F.R. § 404.1567(c), except that he could sit, stand, and/or walk for about six hours in an eight-hour workday, frequently climb ladders, ropes, and scaffolds, frequently crawl, and was limited to occasional handling with the left (non-dominant) hand, Finding 5, id. at 23; that he was capable of performing past relevant work as a fast food worker and customer service representative, which did not require the performance of work-related activities precluded by his RFC, Finding 6, id. at 26; that, in the alternative, considering his age (57 years old, defined as an individual closely approaching advanced age, on his alleged disability onset date, October 23, 2013), education (at least high school), work experience (transferability of skills immaterial), and RFC, there were other jobs existing in significant numbers in the national economy that he could perform, id. at 26-27; and that he, therefore, had not been disabled from October 23, 2013, his alleged onset date of disability, through the date of the decision, May 11, 2016, Finding 7, id. at 27-28. 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.

         In the alternative, 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); Yuckert, 482 U.S. at 146 n.5; 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

         The plaintiff seeks remand on the bases that the ALJ erred in (i) not associating a prior ALJ decision with the current record, as a result of which she failed to adopt prior findings favorable to him, (ii) deeming his cervical degenerative disc disease nonsevere, (iii) according no weight to the testimony of medical expert Peter Webber, M.D., (iv) giving “strong weight” to the opinions of agency examining consultant Stacie Kunas, FNP-C, countersigned by Alan Bean, M.D., and Margaret A. Morrison, Ph.D., but ignoring FNP Kunas's finding that he required a sit/stand option and Dr. Morrison's opinion that he was prone to verbal altercations, (v) failing to supply good reasons for discounting the opinion of treating source John A. Johnstone, D.O., (vi) ignoring the opinions of treating otolaryngologist John Roediger, M.D., and neurologist David Camenga, M.D., (vii) failing to consider a finding by the United States Department of Veterans Affairs (“VA”), in awarding a non-service-connected pension, that he was totally and permanently disabled, and (viii) misconstruing the testimony of a vocational expert (“VE”) in deeming him capable of past relevant work and relying on flawed hypothetical questions to the VE in finding him capable of performing both past relevant work and other work. See Statement of Errors at 5-19.

         At oral argument, the plaintiff's counsel focused on the third point (rejection of the Webber testimony), the sixth point, insofar as it asserts error in ignoring the Roediger opinion, and the eighth point insofar as it bears on the Roediger and Webber errors. He contended that these errors undermined the ALJ's findings that his client could perform either past relevant work or other work in the national economy. For the reasons that follow, I find no reversible error.

         A. Points Highlighted by Plaintiff's Counsel at Oral Argument

         1. Past Relevant Work

         The ALJ explained that she relied on the testimony of the VE to find the plaintiff capable of performing his past relevant work as a fast food worker and a customer service representative, both as generally performed and as he actually performed them. See Record at 26.

         At oral argument, the plaintiff's counsel contended that, in response to the hypothetical question most closely tracking the ALJ's RFC determination, the VE ruled out fast food work. See also Statement of Errors at 18. Counsel for the commissioner conceded the point but argued that any error was harmless because the ALJ also relied on the plaintiff's ability to perform past relevant work as a telemarketer (i.e., a customer service representative). See also Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 23) at 19. The plaintiff's counsel rejoined that this finding, as well, is unsupported by substantial evidence because the ALJ ignored evidence to the contrary, including (i) Dr. Roediger's opinion that it was “very doubtful” that the plaintiff could resume work at a call center and (ii) Dr. Webber's testimony that the plaintiff's hoarseness “could well” reoccur if he returned to work that required a lot of talking. Statement of Errors at 10, 13-14 (citations and internal quotation marks omitted). I find no harmful error.

         The ALJ deemed the plaintiff's gastroesophageal reflux disease (“GERD”) and related laryngitis nonsevere, explaining that, despite his testimony that he would lose his voice for “weeks at a time” if he had to talk for extended periods, the objective record did not confirm any impact on his work-related capability. Record at 21 (citation and internal quotation marks omitted). She noted that the plaintiff had attended speech therapy, had undergone an otolaryngology evaluation in 2011 with Dr. Roediger, and “was assessed with hoarseness due to cigarette smoking and increased hours working at a call-center[, ]” but had continued to smoke against medical advice. Id.

         She further explained that (i) the plaintiff's receipt of a 2012 worker's compensation settlement was not dispositive because the “award specifically denied continuing liability where [the employer] found [the plaintiff's] claims as to vocal dystonia ‘doubtful and disputed[, ]'” (ii) the plaintiff had spoken clearly throughout his hearing, which lasted more than two hours, and (iii) a gastroscopy performed in November 2013 showed that a previous pyloric ulceration had healed, and the plaintiff was advised to continue acid suppression medications. Id. (citations omitted).[3]

         The ALJ did not discuss Dr. Roediger's opinion that it was doubtful that the plaintiff could return to work at a call center. See id. at 21, 24-26. However, as the commissioner contends, see Opposition at 16-17, any error in not addressing that opinion is harmless. The plaintiff does not separately challenge the ALJ's finding that his GERD and laryngitis were nonsevere, see Record at 21; Statement of Errors at 5-19, and, in any event, the ALJ identified substantial evidence in support of that finding, including the prominent role played by smoking in causing the condition and the characterization of the plaintiff's claim of vocal dystonia as doubtful and disputed, see Record at 21.

         While the ALJ did not discuss Dr. Webber's testimony that the plaintiff's laryngitis “could well” recur if the plaintiff were in the same kind of situation, id. at 791-92, she adequately addressed his testimony as a whole, explaining that she gave it “no weight” because he had “failed to provide definitive medically determinable impairments or concise physical capacity parameters thereto based upon objective medical data[, ]” id. at 25.

         Indeed, Dr. Webber described no specific limitation on the plaintiff's speech or use of his voice. See id. at 791-92, 839-40. He attributed only one limitation to the plaintiff's GERD/laryngitis - a need to avoid bending over if, as a result of acid reflux, doing so would bother him, see id. at 839-40. The ALJ deemed this “suggestion” both “wholly inconsistent with the preponderance of medical data, including laboratory tests and physical examinations, ” and inconsistent with the plaintiff's “evinced level of regular activity such as driving, sitting and standing without evinced limitation, playing with his grandchildren and using a snow blower and lawn mower.” Id. at 25 (citations omitted). These were adequate reasons to discount it. See, e.g., Bailey v. Colvin, No. 2:13-cv-57-GZS, 2014 WL 334480, at *4 (D. Me. Jan. 29, 2014) (ALJ did not err in discounting Webber opinion when Dr. Webber had “qualified his testimony several times” and based it in part on claimant's testimony).

         2. Other Work Existing in Substantial Numbers in the National Economy

         The ALJ found, in the alternative, that even if the plaintiff was not capable of performing past relevant work, he remained capable of performing the representative jobs of food service worker (hospital) and dining room attendant, both of which are performed at the medium exertional level. See Record at 27.

         At oral argument, the plaintiff's counsel contended that this alternative finding is unsupported by substantial evidence because the ALJ ignored Dr. Webber's testimony bearing on the plaintiff's back pain, need for a sit/stand option, inability to bend, and difficulty moving his head as a result of his neck pain. He noted that the VE made clear that either a need for a sit/stand option or an inability to bend would preclude the performance of medium level jobs. See id. at 855, 857.

         As discussed above, the ALJ supportability discounted Dr. Webber's limitation on bending. She did not address his endorsement of the Kunas sit/stand option. See Id. at 25, 789. However, as the commissioner argues, see Opposition at 10, her general objections that Dr. Webber “failed to provide definitive medically determinable impairments or concise physical capacity ...


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