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Durfee v. Berryhill

United States District Court, D. Rhode Island

February 15, 2017

EDMUND DURFEE, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, United States Magistrate Judge.

         Before 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.[1] 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.

         The 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.

         I. Background

         Plaintiff 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.[2] 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.

         The 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.

         Throughout 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." Id.

         Consistent 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.

         Plaintiffs 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").[3] 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.[4] Tr. 827-28.

         The 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. Tr. 29.

         II. Standard of Review

         The 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).

         The 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).

         III. Disabilit ...


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