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Deoliveira v. Berryhill

United States District Court, D. New Hampshire

January 2, 2019

Angela Deoliveira[1]
Nancy A. Berryhill, Acting Commissioner, Social Security Administration


          Joseph N. Laplante United States District Judge

         Angela Deoliveira moves to reverse the decision of the Acting Commissioner of the Social Security Administration (“SSA”) to deny her applications for Social Security disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 423, and for supplemental security income (“SSI”) under Title XVI, 42 U.S.C. § 1382. The Acting Commissioner, in turn, moves for an order affirming her decision. For the reasons that follow, the decision of the Acting Commissioner, as announced by the Administrative Law Judge (“ALJ”) is affirmed.

         I. Standard of Review

          The applicable standard of review provides, in pertinent part:

The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .

42 U.S.C. § 405(g) (setting out standard of review for decisions on claims for DIB); see also 42 U.S.C. § 1383(c)(3) (applying § 405(g) to SSI decisions). However, the court “must uphold a denial of social security disability benefits unless ‘the [Acting Commissioner] has committed a legal or factual error in evaluating a particular claim.’” Manso-Pizarro v. Sec’y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per curiam) (quoting Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).

As for the standard of review that applies when an applicant claims that an SSA adjudicator made a factual error, [s]ubstantial-evidence review is more deferential than it might sound to the lay ear: though certainly “more than a scintilla” of evidence is required to meet the benchmark, a preponderance of evidence is not. Bath Iron Works Corp. v. U.S. Dep’t of Labor, 336 F.3d 51, 56 (1st Cir. 2003) (internal quotation marks omitted). Rather, “[a court] must uphold the [Acting Commissioner’s] findings . . . if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [her] conclusion.” Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981) (per curiam).

Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018).

         In addition, “‘issues of credibility and the drawing of permissible inference from evidentiary facts are the prime responsibility of the [Acting Commissioner],’ and ‘the resolution of conflicts in the evidence and the determination of the ultimate question of disability is for [her], not for the doctors or for the courts.’” Id. (quoting Rodriguez, 647 F.2d at 222). Thus, the court “must uphold the [Acting Commissioner’s] conclusion, even if the record arguably could justify a different conclusion, so long as it is supported by substantial evidence.” Tsarelka v. Sec’y of HHS, 842 F.2d 529, 535 (1st Cir. 1988) (per curiam).

         II. Background

         The parties have submitted a Joint Statement of Material Facts. That statement[2] is part of the court’s record and is summarized here, not repeated in full.

         Since April of 2014, Deoliveira’s medical history has included at least five trips to emergency rooms or urgent care, and she has received treatment from approximately a dozen different medical professionals.

         One of Deoliveira’s trips to the emergency room took place in October of 2016, about 10 days after she was involved in a motor-vehicle accident in which she suffered a “whiplash-type injury and head injury posteriorly.” Administrative Transcript (hereinafter “Tr.”) 852. She presented at the emergency room with “a severe diffuse headache,” id., which represented an increase in severity over the moderate headaches she had been having over the 10 days after her accident. The medical note generated by Deoliveira’s October 2016 emergency-room visit also states:

Patient does give a history of prior CVA in 2008 . . . and final diagnosis was left ICA dissection with resultant complete occlusion and treated with anticoagulation x1 year, followed by daily aspirin.

Id. CVA is an “[a]bbreviation for cerebrovascular accident” Stedman’s Medical Dictionary 474 (28th ed. 2006), which is “an imprecise term for cerebral stroke,” Id. at 10.

         On November 9, 2016, Deoliveira saw a neurologist, Dr. Sachin Dave, who noted both her stroke and her recent motor-vehicle accident. His examination findings include the following: “CORTICAL FUNCTIONS: alert and oriented X 3, comprehension and language intact, speech fluent.” Tr. 1010. Based upon his examination, he gave diagnoses of headache, cervicalgia, and concussion syndrome, and he offered this explanation:

         “She . . . had [a motor-vehicle accident] last month with possible head injury or concussion and whiplash type neck injury.” Id.

         In addition to the diagnoses in Dr. Dave’s note, Deoliveira has received diagnoses of bilateral knee pain, osteoarthritis in both knees, fibromyalgia, inflammatory arthritis with a possible autoimmune disorder, a muscle-tension headache, acute post-traumatic headache, an acute cervical sprain, low-back pain, left ear tinnitus,[3] major depression, anxiety, and insomnia. For her physical impairments, she has been treated with ice, medication,[4] and some physical therapy. On occasion, however, she has declined to engage in physical therapy, and has declined injections for the pain associated with her physical impairments. For her mental impairments, she has been treated primarily with medication,[5] although therapy has also been prescribed.

         In September of 2015, Deoliveira applied for DIB and SSI, claiming that she became disabled on April 4, 2014, as a result of fibromyalgia, lower-back pain, pain in her upper neck and head, a blood clot in her head resulting from a mild stroke, continuous pain, headaches, stress and anxiety, depression, and trouble walking. She later revised the alleged onset date of her disability to July 18, 2015, which coincides with a visit to urgent care for knee pain.

         The record includes eight statements by medical or other professionals that discuss Deoliveira’s physical or mental impairments, each of which was evaluated by the ALJ, and each of which is at issue in claimant’s appeal. To avoid unnecessary redundancy, the court will defer its description of those statements to the discussion section of this order.

         After the SSA denied Deoliveira’s applications for DIB and SSI, she received a hearing before an ALJ. At the hearing, the ALJ heard testimony from a vocational expert (“VE”), to whom she posed several hypothetical questions. First, the ALJ asked the VE

to consider an individual of the claimant’s age, education, and work history [who] is limited to work at a light exertional level. No. climbing of ladders, ropes, or scaffolds. No. overhead lifting. The work should not include an assembly line belt pace; no concentrated exposure to potential hazards – moving machinery, unprotected heights, things like that.

Tr. 103. The VE testified that a person with those limitations could not perform Deoliveira’s past work as a limousine/taxi driver, but could perform her past work as a personal attendant.

         He further testified that a person with those limitations could perform the unskilled jobs of school-bus monitor, fruit distributor, and counter clerk. The ALJ asked a second hypothetical question that included this additional limitation:

Standing and walking about half time, four hours of an eight-hour day, and the individual has the option or opportunity, because of the kind of job, to change positions, stretch, that sort of thing, two to three times an hour for a minute or 2.

Tr. 104-05. According to the VE, that additional limitation would preclude a person from performing Deoliveira’s past work as a personal attendant, but would allow her to perform the unskilled jobs of information clerk, ticket taker, and parking-lot cashier, “as long as the individual would be able to maintain on-task behavior for 90 percent of the work day,” Tr. 106.

         After Deoliveira’s hearing, the ALJ issued a decision in which she found that claimant had these severe impairments:

degenerative joint disease of the cervical spine; residual effects of [a] remote mild cerebrovascular accident; fibromyalgia; depression; insomnia; and anxiety.

Tr. 21. Then, after finding that none of Deoliveira’s impairments, either alone or in combination, met or medically equaled the severity of any of the impairments on the SSA’s list of impairments that are per se disabling, the ALJ provided this assessment of Deoliveira’s RFC:

[T]he claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she is limited to standing and walking four hours out of an eight-hour day; the work must be able to be performed seated or standing at the option of the employee; she cannot climb ladders, ropes, or scaffolds; and she cannot perform any overhead lifting. Work should be unskilled and not include an assembly line belt pace; and she should have no concentrated exposure to potential hazards (such as moving machinery, unprotected heights, etc.).

Tr. 25. In the end, the ALJ determined that Deoliveira was unable to perform her past work, but could perform the jobs of school-bus monitor, fruit distributor, information clerk, ticket taker, and parking-lot cashier. Consequently, the ALJ found that Deoliveira was not under a disability from July 18, 2015, through the date of her decision, which was February 27, 2017.

         III. Discussion

         A. The Legal Framework

         To be eligible for disability insurance benefits, a person must: (1) be insured for such benefits; (2) not have reached retirement age; (3) have filed an application; and (4) be under a disability. 42 U.S.C. § 423(a)(1)(A)-(D). To be eligible for supplemental security income, a person must be aged, blind, or disabled, and must meet certain requirements pertaining to income and assets. 42 U.S.C. § 1382(a). The only question in this case is whether the ALJ correctly determined that Deoliveira was not under a disability from July 18, 2015, through February 27, 2017.

         To decide whether a claimant is disabled for the purpose of determining eligibility for either DIB or SSI, an ALJ is required to employ a five-step sequential evaluation process. See 20 C.F.R. §§ 404.1520 (DIB) & 416.920 (SSI).

The steps are: 1) if the [claimant] is engaged in substantial gainful work activity, the application is denied; 2) if the [claimant] does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3) if the impairment meets the conditions for one of the “listed” impairments in the Social Security regulations, then the application is granted; 4) if the [claimant’s] “residual functional capacity” is such that he or she can still perform past relevant work, then the application is denied; 5) if the [claimant], given his or her residual functional capacity, education, work experience, and age, is unable to do any other work, the application is granted.

Purdy, 887 F.3d at 10 (quoting Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001); citing 20 C.F.R. § 416.920).

         At the first four steps in the sequential evaluation process, the claimant bears both the burden of production and the burden of proof. See Purdy, 887 F.3d at 9 (citing Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001)); see also Bowen v. Yuckert, 482 U.S. 137, 146 (1987). She must prove she is disabled by a preponderance of the evidence. See Mandziej v. Chater, 944 F. Supp. 121, 129 (D.N.H. 1996) (citing Paone v. Schweiker, 530 F. Supp. 808, 810-11 (D. Mass. 1982)).[6] Finally,

[i]n assessing a disability claim, the [Commissioner] considers objective and subjective factors, including: (1) objective medical facts; (2) [claimant]’s subjective claims of pain and disability as supported by the testimony of the claimant or other witness; and (3) the [claimant]’s educational background, age, and work experience.

Mandziej, 944 F. Supp. at 129 (citing Avery v. Sec’y of HHS, 797 F.2d 19, 23 (1st Cir. 1986); Goodermote v. Sec’y of HHS, 690 F.2d 5, 6 (1st Cir. 1982)).

         B. Deoliveira’s Claims

         Deoliveira claims that the ALJ erroneously determined her RFC by improperly: (1) evaluating her testimony about her symptoms; and (2) weighing the medical-opinion evidence. Neither claim has merit. The court considers each in turn.

         1. Claimant’s Statements about her Symptoms

         In her decision, the ALJ gave only partial weight to Deoliveira’s statements about her symptoms, principally pain and memory problems. She explained that “claimant’s statements concerning the intensity, persistence and limiting effects of [her] symptoms are not entirely consistent with the medical evidence and other evidence in the record.” Tr. 28. According to claimant, the ALJ erred by: (1) assessing her credibility, rather than evaluating her statements about her symptoms, in violation of the guidance provided by Social Security Ruling (“SSR”) 16-3p, 2016 WL 1119029 (S.S.A. Mar. 16, 2016); and (2) improperly relying upon her non-compliance with treatment and a lack of substantiating objective medical evidence as reasons for discounting her statements. The court begins by outlining the applicable legal principles and then turns to Deoliveira’s two claims of error.

         Legal principles. In 2016, the SSA promulgated SSR 16-3p, which is titled “Evaluation of Symptoms in Disability Claims,” and which “provide[d] guidance about how [the SSA] evaluate[s] statements regarding the intensity, persistence, and limiting effects of symptoms in disability claims under Titles II and XVI of the Social Security Act.” 2016 WL 1119029, at *1. Under the heading “Purpose,” the SSA explained:

[W]e are eliminating the use of the term “credibility” from our sub-regulatory policy, as our regulations do not use this term. In doing so, we clarify that subjective symptom evaluation is not an examination of an individual’s character.

Id. at *1.

         SSR 16-3p also outlines a two-step evaluation process in which a decisionmaker first determines whether a claimant has a medically determinable impairment that could reasonably be expected to produce her alleged symptoms. Then, if a claimant has such an impairment, the decisionmaker must evaluate the intensity and persistence of those symptoms, and determine the extent to which they limit the claimant’s ability to perform work-related activities. In making that evaluation, a decisionmaker should

examine the entire case record, including the objective medical evidence; an individual’s statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual’s case record.

SSR 16-3p, 2016 WL 1119029, at *4. However, an “ALJ cannot reject the veracity of the claimant’s own statements . . . based solely on the conclusion that they are unsubstantiated by the objective medical evidence.” Tellier v. U.S. Soc. Sec. Admin., Acting Comm’r, No. 17-cv-184-PB, 2018 WL 3370630, at *6 (D.N.H. July 10, 2018) (citing 20 C.F.R. § 404.1529(c)(2); Clavette v. Astrue, No. 10-cv-580-JL, 2012 WL 472757, at *9 (D.N.H. Feb. 7, 2012); Valiquette v. Astrue, 498 F.Supp.2d 424, 433 (D. Mass. 2007); see also SSR 16-3p, 2016 WL 1119029, at *4. Finally, when evaluating the intensity and persistence of a claimant’s symptoms, the ALJ should consider the so-called Avery factors:

(i) the claimant’s daily activities; (ii) the location, duration, frequency, and intensity of the pain or symptom; (iii) any precipitating and aggravating factors; (iv) the effectiveness of any medication currently or previously taken; (v) the effectiveness of non-medicinal treatment; (vi) any other self-directed measures used to relieve pain; and (vii) any other factors concerning functional limitations or restrictions. 20 C.F.R. 404.1529(c)(3); Childers v. Colvin, [No. 14-cv-270-JL, 2015 WL 4415129], [at] *5 [(D.N.H. July 17, 2015)] (citing Avery v. Sec’y of Health & Human Servs., 797 F.2d 19, 29 (1st Cir. 1986)).

Tellier, 2018 WL 3370630, at *7. However, “‘an ALJ need not address every Avery factor’ in [her] written decision for [her] evaluation to be supported by substantial evidence.” Id. (quoting Ault v. Astrue, No. 10-cv-553-JL, 2012 WL 72291, at *5 (D.N.H. Jan. 10, 2012)).


         Deoliveira first claims that the ALJ erred by discounting her statements about her symptoms largely because she had been convicted of welfare fraud. Assuming that such a mistake by the ALJ would be a reversible error, a proposition for which claimant cites no authority, the ALJ did not do what Deoliveira claims she did. The ALJ mentioned Deoliveira’s incarceration at several points in her decision, but she did not do so as part of either an examination of claimant’s character for truthfulness or an evaluation of the statements she made about her symptoms. Rather, the ALJ mentioned claimant’s incarceration in discussions of her employment record, see Tr. 25-26, and her medical history, see Tr. 27, 29-30. But that does not run afoul of the principle, expressed in SSR 16-3p, that SSA decisionmakers are not to assess a claimant’s credibility or character. See Coskery v. Berryhill, 892 F.3d 1, 6 (1st Cir. 2018) (explaining, when rejecting claimant’s SSR 16- 3p argument, that “we read the ALJ to have referenced Coskery’s marijuana use not for the purpose of ...

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