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Vito S. S. v. Saul

United States District Court, D. Maine

June 24, 2019

VITO S. S., JR., Plaintiff
v.
ANDREW M. SAUL, Commissioner of Social Security, [1] Defendant

          REPORT AND RECOMMENDED DECISION [2]

          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 project manager. The plaintiff seeks remand on the bases that the ALJ erred in evaluating his subjective symptoms, determining his physical and mental residual functional capacity (“RFC”), and concluding that he could perform past relevant work as a project manager as actually or generally performed. See Itemized Statement of Errors (“Statement of Errors”) (ECF No. 12) at 9-20.[3] I find no reversible 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 24; that he had the severe impairments of degenerative disc disease status post laminectomy in 2013 and 2015 and joint dysfunction of the right shoulder, Finding 3, id. at 25; that he had the RFC to perform sedentary work as defined in 20 C.F.R. § 404.1567(a), except that he could frequently and occasionally lift and carry 10 pounds, stand/walk for two hours in an eight-hour day with unrestricted sitting, could not operate foot controls with his right lower extremity, required the use of a cane when ambulating outdoors or on uneven terrain, could occasionally climb ramps and stairs but never ladders, ropes, or scaffolds, could occasionally balance, stoop, kneel, crouch, and crawl, could not work on irregular or sloped surfaces or at unprotected heights, and could not reach overhead, Finding 5, id. at 27; that he was capable of performing past relevant work as a project manager, which did not require the performance of work-related activities precluded by his RFC, Finding 6, id. at 31, and that he, therefore, had not been disabled from August 1, 2012, his alleged onset date of disability, through the date of the decision, May 19, 2017, Finding 7, id. at 32. The Appeals Council declined to review the decision, id. at 9-11, 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. Challenge to Evaluation of Subjective Symptoms

         The plaintiff first contends that, in partially discounting his allegations of subjective symptoms and limitations, the ALJ ignored portions of his functional report, relied on gaps in treatment without acknowledging his inability to afford it, overstated his daily activities, and ignored the third-party report of a friend, James Hartigan. See Statement of Errors at 9-11. I find no basis on which to disturb the ALJ's assessment.

         Pursuant to Social Security Ruling 16-3p (“SSR 16-3p”), the factors that an ALJ is to consider in evaluating the intensity, persistence, and limiting effects of an individual's symptoms include (i) whether the individual's statements “are consistent with the medical signs and laboratory findings of record[, ]” that is, the objective medical evidence, (ii) the individual's daily activities, (iii) “[t]he type, dosage, effectiveness, and side effects of any medication an individual takes or has taken to alleviate pain or other symptoms[, ]” and (iv) “[t]reatment, other than medication, an individual receives or has received for relief of pain or other symptoms[.]” SSR 16-3p, reprinted in West's Social Security Reporting Service Rulings 1983-1991 (Supp. 2018), at 668-69, 671.

         The commissioner adopted SSR 16-3p to “eliminat[e] the use of the term ‘credibility'” and “clarify that subjective symptom evaluation is not an examination of an individual's character.” Id. at 665. However, but for the use of the term “credibility, ” the deferential standard of review of an ALJ's evaluation of a claimant's statements continues to apply. See Frustaglia v. Sec'y of Health & Human Servs., 829 F.2d 192, 195 (1st Cir. 1987) (“The credibility determination by the ALJ, who observed the claimant, evaluated his demeanor, and considered how that testimony fit in with the rest of the evidence, is entitled to deference, especially when supported by specific findings.”).

         That is true here. First, as the commissioner notes, see Defendant's Opposition to Plaintiff's Itemized Statement of Errors (“Opposition”) (ECF No. 16) at 3, the ALJ relied “fundamentally” on the fact that the objective medical evidence did not corroborate the plaintiff's subjective allegations, Record at 28. While the plaintiff focuses on his course of treatment, including reasons for treatment gaps, he does not challenge the ALJ's heavy reliance on objective findings when he did receive treatment. See Statement of Errors at 9-11.

         Second, as the commissioner observes, see Opposition at 7, while the plaintiff indicates that the ALJ ignored aspects of his functional report, including problems with bending, squatting, standing, sitting, kneeling, concentrating, and getting along with others, as well as his need to use a cane, see Statement of Errors at 10; Record at 237-38, the ALJ assessed limitations in the plaintiff's ability to sit, stand, stoop, kneel, and crouch and provided for his use of a cane, see Finding 5, Record at 27.

         Third, the plaintiff contends that, in relying on his ability as of 2015 to walk two to three times per week, the ALJ ignored evidence that he could do so for only 30 minutes, an amount of time even shorter than the two hours required for sedentary work. See Statement of Errors at 10; Record at 1016. Yet, as the commissioner rejoins, see Opposition at 7, the plaintiff's own treating physician, Dr. Major, indicated that he could stand and/or walk for up to two hours in a workday, see Record at 1026.

         Fourth, the plaintiff cites his hearing testimony at page 73 of the Record for the proposition that the ALJ relied on purported gaps in treatment without acknowledging that he was “essentially penniless.” Statement of Errors at 10. However, while, in the cited passage, the plaintiff testified that he “ha[d]n't had a penny[, ]” had “exhausted all my savings[, ]” and “have nothing left[, ]” he did not testify that he had been unable to obtain needed medical or mental health treatment as a result. Record at 73. In any event, as the commissioner contends, see Opposition at 8, any error in this regard is harmless, the ALJ having identified multiple reasons for her assessment of the plaintiff's subjective allegations that are unchallenged and others that survive scrutiny, see Record at 28-31; see also, e.g., Voisine v. Colvin, No. 2:13-cv-00412-JAW, 2014 WL 5323415, at *5 (D. Me. Oct. 17, 2014) (“[E]ven assuming arguendo that some of the bases provided by the [ALJ] for his credibility determination are unsupported by the record, he articulates a number of bases that are. This suffices to survive the applicable deferential standard of review.”).

         Fifth, while the plaintiff contends that the ALJ largely overstated his daily activities by failing to consider the manner in which he performed them, he fails to specify any activities, apart from his ability to walk, discussed above, that the ALJ assertedly mischaracterized. See Statement of Errors at 11.

         Sixth, and finally, while the ALJ did not expressly address Mr. Hartigan's function report (Exhibit 5E), see Record at 218-25, she cited it in discussing her finding that the plaintiff's depression caused only mild limitations, see id. at 26, and listed the “function reports[, ]” plural, in summarizing the evidence she considered in assessing the plaintiff's RFC, id. at 31. Indeed, Mr. Hartigan indicated that the plaintiff had no problem paying attention, finished what he started, was “fine with” following written instructions, and had no problem following spoken instructions. Id. at 223. The ALJ, hence, plainly considered the Hartigan function report. That was all she was required to do. See, e.g., Social Security Ruling 06-03p, reprinted in West's Social Security Reporting Service Rulings 1983-1991 (Supp. 2018) (“SSR 06-03p”), at 327 (observing that evidence from non-medical sources, such as a claimant's friends, “may provide insight into the severity of the [claimant's] impairment(s) and how it affects [his or her] ability to function” but imposing no requirement that an ALJ expressly discuss such evidence).

         In any event, as the commissioner argues, see Opposition at 10, even had the ALJ ignored the Hartigan function report, any error would have been harmless. The ALJ relied on the opinion of agency nonexamining consultant Brian Stahl, Ph.D., who expressly considered the Hartigan report in deeming the plaintiff's mental impairments nonsevere. See Record at 31, 115-16; Bowen v. Colvin, No. 1:14-cv-451-JHR, 2015 WL 5693049, at *4 (D. Me. Sept. 28, 2015) (rejecting claimant's challenge to ALJ's mental RFC determination when, inter alia, the ALJ had “either discussed the contrary evidence to which the plaintiff points or relied on the opinions of experts who had considered it”).

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

         B. Challenge to ...


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