United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, United States Magistrate Judge.
the Court is Plaintiff Edmund Durfee's motion for
reversal of the decision of the Commissioner of Social
Security (the "Commissioner"), denying Supplemental
Security Income ("SSI") under § 1631(c)(3) of
the Social Security Act, 42 U.S.C. § 1383(c)(3) (the
"Act"). Plaintiff argues that the Administrative
Law Judge ("ALJ") erred in failing to incorporate
Plaintiffs use of a cane into either the hypothetical
addressed to the vocational expert ("VE") or the
Residual Functional Capacity ("RFC") determination
that formed the basis for the finding of no
disability. Plaintiff also argues that the ALJ's
evaluation of Plaintiff s credibility was so skimpy and
ungrounded in substantial evidence as to require remand for a
do-over. Defendant Nancy A. Berryhill asks the Court to
affirm the Commissioner's decision.
matter has been referred to me for preliminary review,
findings and recommended disposition pursuant to 28 U.S.C.
§ 636(b)(1)(B). Having reviewed the entire record, I
find that the ALJ's findings are well supported by
substantial evidence and any error is harmless; accordingly,
I recommend that Plaintiffs Motion to Reverse the Decision of
the Commissioner (ECF No. 12) be DENIED and Defendant's
Motion for an Order Affirming the Decision of the
Commissioner (ECF No. 14) be GRANTED.
is a "younger person" in the parlance of the Act,
aged 48 at the alleged onset of disability on October 12,
2012. He ended his education in ninth grade and last worked
in 2007 doing auto-body deliveries; that job ended when he
refused to drive in the snow. Tr. 348. He lives with his wife
of thirteen years in a home owned by his father. Tr. 42, 348.
While he and his wife have no children, one entry states that
he is "currently taking care of his sisters children and
that this is big stressor in his life." Tr. 420. His
first disability application was denied by an ALJ's
decision dated October 11, 2012. Tr. 65. With the prior
period foreclosed by that adverse decision, the pending
application alleges onset as of the next day. Tr. 16. Pain in
his lumbar and cervical spine caused by degenerative disc
disease with radiculopathy is the principal reason that
Plaintiff contends he cannot work. The focus of this appeal is
on Plaintiffs use of a cane for the three years preceding the
ALJ hearing; Plaintiff contends that the cane is necessary in
light of his spinal impairment. While the ALJ accepted that
degenerative disc disease with radiculopathy is a severe
impairment in his Step Two findings, Tr. 18, he did not
include accommodation of Plaintiffs need for the cane in
either his VE hypothetical or his RFC.
administrative record is loaded with the results of MRI and
X-ray studies confirming disc degeneration in both Plaintiffs
lumbar and cervical spine, together with at least one nerve
study confirming mild chronic radiculopathy; the record also
establishes that, prior to the current date of onset,
Plaintiff has had back surgery (lumbar and cervical
discectomy). Tr. 21. The record reflects Plaintiffs
persistent complaint that his back pain was
"intolerable." Tr. 817. For example, in February
2014, Plaintiff was hospitalized after he overdosed on Xanax
because he had fallen and hurt his back; he told providers at
Newport Hospital that he felt so overwhelmed by the pain that
he wanted to take his own life. Tr. 548-77; see Tr. 605
("I want to die because I can't take this back pain
anymore.")- Nevertheless, the treatment Plaintiff
received for this pain during the period of alleged
disability is somewhat limited. For example, he was given the
first of a set of spinal injections in March 2013 and told he
should follow-up for a second injection, which could be
postponed if the pain improved; however, the record does not
reflect that he ever came back. Tr. 323. Similarly, he
sometimes declined pain medication and consistently declined
physical therapy, saying he had tried both and both had
failed. Tr. 611, 833. The record includes at least one
notation that "[n]o doctor is telling pt that he can not
work." Tr. 348.
the treating record are repeated observations by an array of
treating sources that Plaintiff used a cane. Kg,, Tr. 350,
354, 374-75, 832. Plaintiff brought his cane to the ALJ
hearing and testified that he had been using it for three
years. Tr. 46. In his testimony, he confirmed that no
treating source had recommended or prescribed the cane,
averring that "[i]t was helpful to me. I did it myself.
And then the doctor said that was a good choice to have the
cane with you at all times." Tr. 47. Plaintiff did not
identify the "doctor" referred to in this
statement, but also said that the conversation with the
"doctor" occurred, "[w]hen I went into his
office with the cane . . . about three years ago."
with Plaintiffs testimony, there is no treating record
reflecting any provider prescribing or recommending the use
of a cane; nor is there any medical documentation
establishing that any provider opined that the cane was
medically necessary or required. Inconsistent with Plaintiffs
claim that a "doctor" encouraged him to continue to
use the cane, no such reference appears in any of the
treating notes. Typical of the record references to the cane
are 2013 notes of the treating team at Newport Hospital,
which state, "Pt reports he walks with a cane just for
added support." Tr. 416. During his stay at the Newport
Hospital, Plaintiff requested and was allowed to use a
walker, although nursing observations record that he was seen
"ambulating with or without walker." Tr. 420. At
discharge, the Hospital notes state, "Pt. left unit
ambulatory, accompanied by his wife;" there is no
mention of the need for a cane or a walker. Tr. 421. During
another hospitalization in 2014, Plaintiff used a walker and
asked for a wheelchair, which he was allowed to have while an
in-patient; however, his discharge instructions state,
"ambulation allowed." Tr. 660-61, 739. There is no
mention of the use of a walker, wheelchair or cane.
Similarly, when Plaintiff saw a neurologist in 2013, she
observed, "ambulates w/ cane" and recorded his
complaint of "left leg weakness;" nevertheless, on
examination, she found that he had "no difficulty with
gait or walking." All of her findings related to gait,
posture, station and strength were normal. Tr. 374-76, 381;
see Tr. 379 ("ambulates independently. Gait. . .
normal"). And when he was examined at the Brain and
Spine Institute, the treating provider noted, "patient
walks with slightly antalgic gait with the assistance of a
cane, " yet all of her findings on examination with
respect to strength, range of motion and coordination were
normal. Tr. 833. She made no recommendation that use of the
cane should be continued.
use of the cane was specifically noted by the state agency
reviewing physicians at the initial and reconsideration
phases of the administrative proceeding. See Tr. 96 (in
summarizing of record, Dr. Ricardo Ramirez notes that
Plaintiff observed "walking with cane"); Tr. 110
(in summarizing record, Dr. Thomas Bennett cited
neurologist's observation that Plaintiff "ambulates
with a cane"). Both Dr. Ramirez and Dr. Bennett provided
function-by- function opinions - yet neither opined that
Plaintiff required an additional accommodation for the use of
a cane, walker or other assistive-walking device. Tr. 93-95.
And Dr. Scott Keigwin, Plaintiffs primary care physician,
provided an opinion that does not mention that Plaintiff is
limited in that he requires a cane for
ambulation. Tr. 827-28.
ALJ's decision reflects that he considered all of the
foregoing evidence: it specifically discusses the treating
sources whose notes reflect that Plaintiff was observed using
a cane. Tr. 22 (noting Brain and Spine Institute observation
that "claimant walked with a slightly antalgic gait with
the assistance of a cane, " yet all objective testing of
strength, coordination, range of motion, and stability
normal); Tr. 23 (noting mental health nurse observed claimant
"walked with a cane"); Id. (noting Mental
Health Center observation that "he was using a
cane"); Tr. 24 (noting Plaintiffs testimony that use of
cane for three years was something Plaintiff "did it
[him]self because it was "helpful, " and that one
doctor said it was a good idea). The decision also makes
clear that the RFC and hypothetical are based not on the
ALJ's serendipitous lay judgment to leave the cane out,
but rather on Dr. Bennett's expert opinion, which
mentions the cane, but does not opine that it was necessary.
The ALJ found Dr. Bennett's opinion persuasive and
entitled to substantial evidentiary weight; he relied on it
in formulating the VE hypothetical and the RFC finding. Tr.
27. Based on his conclusion that Plaintiff could perform jobs
at both the light and sedentary exertional levels, the ALJ
found that Plaintiff was not disabled at any relevant period.
Standard of Review
Commissioner's findings of fact are conclusive if
supported by substantial evidence. 42 U.S.C. § 405(g).
Substantial evidence is more than a scintilla - that is, the
evidence must do more than merely create a suspicion of the
existence of a fact, and must include such relevant evidence
as a reasonable person would accept as adequate to support
the conclusion. Ortiz v. Sec'y of Health & Human
Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam);
Rodriguez v. Sec'y of Health & Human Servs.,
647 F.2d 218, 222 (1st Cir. 1981); Brown v. Apfel,
71 F.Supp.2d 28, 30 (D.R.I. 1999). Once the Court concludes
that the decision is supported by substantial evidence, the
Commissioner must be affirmed, even if the Court would have
reached a contrary result as finder of fact. Rodriguez
Pagan v. Sec'y of Health & Human Servs., 819
F.2d 1, 3 (1st Cir. 1987); see also Barnes v.
Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991);
Lizotte v. Sec'y of Health & Human Servs.,
654 F.2d 127, 128 (1st Cir. 1981).
determination of substantiality is based upon an evaluation
of the record as a whole. Brown, 71 F.Supp.2d at 30;
see also Frustaglia v. Sec'y of Health & Human
Servs., 829 F.2d 192, 195 (1st Cir. 1987); Parker v.
Bowen, 793 F.2d 1177, 1180 (11th Cir. 1986) (court also
must consider evidence detracting from evidence on which
Commissioner relied). Thus, the Court's role in reviewing
the Commissioner's decision is limited. Brown,
71 F.Supp.2d at 30. The Court does not reinterpret the
evidence or otherwise substitute its own judgment for that of
the Commissioner. Id. at 30-31 (citing Colon v.
Sec'y of Health & Human Servs., 877 F.2d 148,
153 (1st Cir. 1989)). "[T]he resolution of conflicts in
the evidence is for the Commissioner, not the courts."
Id. at 31 (citing Richardson v. Perales,
402 U.S. 389, 399 (1971)). A claimant's complaints alone
cannot provide a basis for entitlement when they are not
supported by medical evidence. See Avery v. Sec'y of
Health & Human Servs., 797 F.2d 19, 20-21 (1st Cir.
1986); 20 C.F.R. § 416.929(a).