United States District Court, D. Rhode Island
DONNA A. H., Plaintiff,
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, United States Magistrate Judge.
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. 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.
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.
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.
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.
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; 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.
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.
May 2015 through the date of the ALJ's February 17, 2016,
hearing, no further treatment appears in the
record. 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.
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.
STANDARD OF REVIEW
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).
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).