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Donna A. H. v. Berryhill

United States District Court, D. Rhode Island

August 20, 2018

DONNA A. H., Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, United States Magistrate Judge.

         The matter is before the Court on Plaintiff Donna A. H.'s motion to remand/reverse the Commissioner's decision denying Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under §§ 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3) (the “Act”). Plaintiff claims that the Administrative Law Judge (“ALJ”) erroneously assessed the opinion evidence, which resulted in the flawed Step Two finding that none of her many medically determinable impairments, alone or in combination, significantly limit her ability to do basic work activities.[1] She also argues that the ALJ's “credibility” assessment is deficient in that the ALJ failed to consider Plaintiff's stellar work history. Defendant Nancy A. Berryhill (“Defendant”) has filed a motion for an order affirming 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 sufficiently supported by substantial evidence. Accordingly, I recommend that Plaintiff's Motion to Remand/Reverse the Commissioner's Decision (ECF No. 14) be DENIED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 15) be GRANTED.

         I. BACKGROUND

         Plaintiff worked very consistently for many years as a bakery helper until she hurt her knee at work in May 2013. Tr. 56. On May 5, 2013, her alleged onset-of-disability date, she stopped working and collected workers compensation due to the knee injury; in September 2013, she was cleared to return to work but then was laid off. Id. According to her testimony, in June 2014, she started working part time (between two and four hours a day) at a farm. Tr. 42. She testified that she continued in that job until at least October 2014. Id.; see Tr. 456 (December 2014 treating note states that Plaintiff works part time at farm). Apparently, she also worked at the farm in 2015: her primary care physician, Dr. Murray Buttner, noted that she was working “very part time” at a farm on April 7, 2015, while Plaintiff's attorney submitted a pay stub from Fort Hill Farms & Garden LLC for a two-week period in October 2015, which reflected fifty-two hours worked during that period. Tr. 204, 454. The ALJ found that the farm work did not amount to the level of a substantial gainful activity. Tr. 25.

         Medically, Plaintiff had suffered from serious alcohol abuse for many years, although by the time of the period in issue, she was drinking less or not at all. While she was still working full time, in addition to the effects of alcohol, she suffered from “tobaccoism, ” with coughing and wheezing, and a question of anemia, as well as issues with her knee, lower extremities (pain, numbness and sciatica), and chronic back and shoulder pain, for which Dr. Buttner consistently prescribed Percocet and sometimes Oxycodone. Tr. 406-25.

         From her alleged date of onset in May 2013 until October 2013, there is no medical treatment in the record. In October 2013, she was hospitalized for two days, the first of four short hospitalizations in 2013 and 2014 for electrolyte imbalance and blood pressure issues;[2] she was discharged much improved with the recommendation to eat better and drink less. Tr. 313. In follow up, Dr. Buttner urged Plaintiff to stop giving blood every six weeks, which she had been doing. Tr. 404. This hospitalization is followed by another gap in treatment until March 2014, when Plaintiff saw Dr. Buttner to pick up prescriptions; Dr. Buttner observed that she had fractured her wrist, for which he sent her for treatment. Tr. 402. Otherwise, she had “done quite well, ” Tr. 341, until April 2014, when she was hospitalized again with symptoms similar to those in October 2013. Tr. 331-49. With similar treatment (a good diet and intravenous administration of fluids to address electrolyte imbalance), as well as Prednisone to treat possible remitting seronegative symmetrical synovitis with pitting edema (“RS3PE”), at discharge, she was “exceptionally better.” Tr. 344-45. It happened a third time in June; again, she responded positively to IV treatment for electrolyte imbalance and steroid treatment for RS3PE. Tr. 367-68. The fourth hospitalization for similar symptoms, as well as for difficulty breathing, was in July 2014. Chronic obstructive pulmonary disease (“COPD”) was identified as an ongoing issue, for which Spiriva was prescribed, and Bartter's syndrome was suggested as an explanation for the ongoing electrolyte imbalance. Tr. 369-70, 463-64. After this hospitalization, Dr. Buttner found that “she is doing well. . . [b]reathing is much better, ” and proposed Gitelman syndrome as a diagnosis to explain the electrolyte issues; treatment for Gitelman syndrome was initiated. Tr. 463.

         After another treatment gap, imaging done in October 2014 showed that Plaintiff's wrist was well healed and her knee MRI was normal, but that she had osteoarthritis at the base of her thumb. Tr. 439-40. Soon after, on November 6, 2014, Plaintiff returned to the hospital, this time for shortness of breath; she was sent home the same day with an inhaler. Tr. 460. Dr. Buttner urged her to stop smoking. Tr. 459. A month later, Plaintiff saw Dr. Buttner, complaining that she hurt her back pulling out a sofa bed. Tr. 456-57. Dr. Buttner's note reflects that Plaintiff was working at the farm, as well as that Gitelman syndrome and RS3PE were stable and anemia was resolved; he increased the COPD medication and prescribed a narcotic for back pain. Tr. 457. After another treatment gap, Plaintiff saw Dr. Buttner on April 7, 2015; in response to her complaints of neuropathy (tingling and pain in the lower extremities, arms, and shoulders), he noted that she was still working part time at the farm, that “her labs in February looked good, ” that Gitelman syndrome and RS3PE were stable and that she was eating well and not drinking alcohol. For treatment, he added Neurontin and otherwise continued prescribed medications. Tr. 454-55. A spinal x-ray in the same month showed uncovertebral joint disease with mild foraminal narrowing, while a May 2015 x-ray showed mild-to-moderate arthrosis of the thumb. Tr. 442.

         From May 2015 through the date of the ALJ's February 17, 2016, hearing, no further treatment appears in the record.[3] With no records suggesting that he had seen Plaintiff since April 7, 2015, on February 16, 2016, the day before the ALJ hearing, Dr. Buttner signed an opinion in support of Plaintiff's disability application; it reflects a sedentary functional capacity, including that she could rarely lift as much as ten pounds and never more, could walk no more than one hour, stand no more than two hours and sit no more than four hours, as well as many other limitations effectively precluding all work. Tr. 497.

         During the pendency of the applications, the Social Security Administration arranged for a consultative examination in August 2014, but Plaintiff failed to appear. Tr. 31. She claims because she could not get a ride. Tr. 52. When the examination was reset (with notification to both Plaintiff and her attorney), she again failed to appear. Tr. 52, 493-94. Plaintiff claimed she was not aware of the second appointment. Tr. 52. In an unchallenged finding, the ALJ appropriately considered these failures to appear for a medical examination in connection with his finding that Plaintiff's subjective statements regarding symptom severity were compromised. Tr. 31.

         II. STANDARD OF REVIEW

         “The First Circuit has stated that courts should ensure ‘a just outcome' in Social Security disability claims.” Santa v. Astrue, 924 F.Supp.2d 386, 391 (D.R.I. 2013) (quoting Pelletier v. Sec'y of Health, Educ. & Welfare, 525 F.2d 158, 161 (1st Cir. 1975)). “[T]he Social Security Act is to be construed liberally to effectuate its general purpose of easing the insecurity of life.” Mary K v. Berryhill, C.A. No. 17-278-JJM-PAS, 2018 WL 3617310, at *2 (D.R.I. July 30, 2018) (citing Rodriguez v. Celebrezze, 349 F.2d 494, 496 (1st Cir. 1965)). Nevertheless, 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. Irlanda 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. § 404.1529(a).[4]

         III. ...


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