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Danielle C. v. Berryhill

United States District Court, D. Maine

May 29, 2019

DANIELLE C., 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 Supplemental Security Income (“SSI”) 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, proceeding pro se, seeks remand on the bases that the ALJ erred in (i) failing to distinguish between symptoms from her degenerative disc disease (“DDD”) and her myofascial pain syndrome, (ii) finding that she had experienced almost 100 percent relief from trigger point injections, (iii) relying on her activities of daily living, and (iv) relying on her volunteer driving work. See [Statement of Errors] (ECF No. 25). 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. § 416.920; 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 had the severe impairment of myofascial pain syndrome, Finding 2, Record at 17; that she had the residual functional capacity (“RFC”) to perform medium work as defined in 20 C.F.R. § 416.967(c), except that she could occasionally climb ladders/scaffolds/ropes and occasionally stoop, Finding 4, id. at 21; that, considering her age (23 years old, defined as a younger individual, on the date she filed her application for SSI benefits, November 3, 2015), 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 perform, Findings 6-9, id. at 24; and that she, therefore, had not been disabled from November 3, 2015, the date her SSI application was filed, through the date of the decision, July 11, 2017, Finding 10, id. at 25. 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. § 416.1481; 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. § 1383(c)(3); 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. § 416.920(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. Overlap Between DDD, Myofascial Pain Syndrome

         The plaintiff first challenges the ALJ's finding that, “even if [her] alleged DDD was a medically determinable impairment, any symptoms resulting from this condition would overlap with her severe impairment of myofascial pain syndrome.” Statement of Errors at [1]; Record at 18. She asserts that the ALJ erred in failing to differentiate between the symptoms caused by her DDD and those caused by her myofascial pain syndrome. See Statement of Errors at [1]. Nonetheless, as the commissioner notes, see Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 30) at 2-5, the ALJ concluded that the plaintiff's alleged DDD was not a medically determinable impairment, see Record at 18.

         “An individual's symptoms . . . will not be found to affect the ability to perform work-related activities . . . unless medical signs or laboratory findings show a medically determinable impairment is present.” Social Security Ruling 16-3p (“SSR 16-3p”), reprinted in West's Social Security Reporting Service, Rulings 1983-1991 (Supp. 2018), at 666. Thus, “[i]n the absence of a medically determinable impairment, a claimant's symptoms rightfully are ignored[.]” Blackmore ex rel. JS v. Astrue, Civil No. 09-385-P-S, 2010 WL 2674594, at *3 (D. Me. June 29, 2010) (rec. dec., aff'd July 19, 2010).

         The ALJ's finding that the plaintiff did not have a medically determinable DDD impairment is supported by substantial evidence. She explained that she did not credit the October 2015 DDD diagnosis of Jerry Lin, D.O., when Dr. Lin “note[d] that the lumbar MRI done in 2014 showed normal findings[, ]” “did not provide a detailed analysis of the [plaintiff]'s lumbar condition, ” and did not “cite to objective testing to support his diagnosis.” Record at 18. And, she relied on the opinions of two agency nonexamining consultants, Benjamin Weinberg, M.D., and David Camenga, M.D., both of whom found no medically determinable DDD impairment, citing normal lumbar spine x-rays and a normal examination on January 20, 2016. See id. at 23, 73-75, 84-87. No. more was required.

         Remand, accordingly, is unwarranted on the basis of the first point of error.

         B. Degree of Relief from Injection Therapy

         The plaintiff next challenges the ALJ's finding that “[e]xam notes show that [she] has experienced over 90% pain relief with trigger point injections.” Statement of Errors at [1]; Record at 22 (citation omitted). She asserts that the relief was closer to 50 percent and that, even with trigger point therapy, she still had severe issues. See Statement of Errors at [1]. The commissioner acknowledges that the plaintiff consistently reported experiencing at least 50 percent relief. See Opposition at 9. However, she points out that, in October 2014, the plaintiff reported having had over 80 percent relief from her prior injection, and in June 2015, just before her alleged onset date of disability, she reported “over 90% pain relief with trigger point injections.” Id. (citing Record at 344; quoting id. at 337). In the circumstances, as the commissioner argues, “[t]he ALJ reasonably ...


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