James S. v. Saul

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, United States Magistrate Judge.

         In January 1996, at the age of 33, Plaintiff James S. was involved in a horrendous accident while working as a foreman doing marine construction; a two-ton piling fell on him, nearly killing him and crushing his pelvis and adjacent organs. More than twenty years later, on July 19, 2016, for the first time, he sought disability benefits, applying for Disability Insurance Benefits (“DIB”) under 42 U.S.C. § 405(g) of the Social Security Act (the “Act”), as well as for Supplemental Security Income (“SSI”) under § 1631(c)(3). In April 2019, his SSI application ended at the reconsideration phase with the finding that he retained the residual functional capacity (“RFC”)^[1] to perform light work, which rendered him disabled as of his 55th birthday in December 2018, but not before.^[2] ECF No. 18-2 at 13-14. However, Plaintiff's DIB claim depended on a finding of disability in the limited period beginning on the date of onset as alleged in his application - January 1, 2002 - and ending with his date-last-insured - December 31, 2003. With no medical evidence evincing any treatment at all during or close in time to the two- year relevant period, and no other evidence pertinent to the relevant period apart from Plaintiff's statements, which were repeated in a post-hearing opinion from a physician who did not treat Plaintiff during the relevant period, the Administrative Law Judge (“ALJ”) acknowledged the catastrophic injuries Plaintiff had sustained in the 1996 accident, but found that Plaintiff had failed to establish a severe impairment during the relevant period. Based on this finding, the ALJ denied the DIB claim.

         This case is focused only on the ALJ's denial of Plaintiff's DIB claim. Plaintiff contends that the ALJ wrongly rejected, indeed ignored, the opinion of his treating orthopedic surgeon, Dr. Peter Trafton, based on the patently incorrect finding that Dr. Trafton “was not a treating provider and did not treat the claimant for his injuries . . . immediately after his accident.” Tr. 26. In reliance on this error, Plaintiff argues, the ALJ performed an improper lay assessment of the significance of the dearth of treatment during the relevant period, resulting in a decision that lacks the support of substantial evidence. Plaintiff asks the Court to vacate the decision for an award of benefits or to remand for proper consideration of the Trafton opinion. Defendant Andrew M. Saul (“Defendant”) moves 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 certainly made what appears to be a scrivener's error; however, I also find that the error is harmless and that the ALJ's findings are otherwise sufficiently supported by substantial evidence. Accordingly, I recommend that Plaintiff's Motion to Reverse or Remand (ECF No. 17) be DENIED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 18) be GRANTED.

         I. 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)). If the Court finds either that the Commissioner's decision is not supported by substantial evidence, or that the Commissioner incorrectly applied the law relevant to the disability claim, the Court may remand a case to the Commissioner for a rehearing under Sentence Four of 42 U.S.C. § 405(g). Allen v. Colvin, No. CA 13-781L, 2015 WL 906000, at *8 (D.R.I. Mar. 3, 2015) (citing Jackson v. Chater, 99 F.3d 1086, 1097-98 (11th Cir.1996)). If the Court finds that a judicial award of benefits would be proper because the proof is overwhelming, or the proof is very strong and there is no contrary evidence, the Court can remand for an award of benefits. Seavey v. Barnhart, 276 F.3d 1, 11 (1st Cir. 2001).

         II. Disability Determination

         The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 416(I); 20 C.F.R. § 404.1505. The impairment must be severe, making the claimant unable to do previous work, or any other substantial gainful activity which exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-1511.

         A. The Five-Step Evaluation

         The ALJ must follow five steps in evaluating a claim of disability. See 20 C.F.R. § 404.1520. First, if a claimant is working at a substantial gainful activity, the claimant is not disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant does not have any impairment or combination of impairments that significantly limit physical or mental ability to do basic work activities, then the claimant does not have a severe impairment and is not disabled. 20 C.F.R. § 404.1520(c). Third, if a claimant's impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Appendix 1, the claimant is disabled. 20 C.F.R. § 404.1520(d). Fourth, if a claimant's impairments do not prevent doing past relevant work, the claimant is not disabled. 20 C.F.R. § 404.1520(e)-(f). Fifth, if a claimant's impairments (considering RFC, age, education and past work) prevent doing other work that exists in the local or national economy, a finding of disabled is warranted. 20 C.F.R. § 404.1520(g). Significantly, the claimant bears the burden of proof at Steps One through Four, but the Commissioner bears the burden at Step Five. Wells v. Barnhart, 267 F.Supp.2d 138, 144 (D. Mass. 2003) (five step process applies to both DIB and SSI claims).

         The claimant must prove the existence of a disability on or before the last day of insured status for the purposes of disability benefits. Deblois v. Sec'y of Health & Human Servs., 686 F.2d 76, 79 (1st Cir. 1982); 42 U.S.C. §§ 416(i)(3), 423(a), 423(c). If a claimant becomes disabled after loss of insured status, the claim for disability benefits must be denied despite disability. Cruz Rivera v. Sec'y of Health & Human Servs., 818 F.2d 96, 97 (1st Cir. 1986).

         B. Treating Physicians

         Substantial weight should be given to the opinion, diagnosis and medical evidence of a treating physician unless there are good reasons to do otherwise. See Rohrberg v. Apfel, 26 F.Supp.2d 303, 311 (D. Mass. 1998); 20 C.F.R. § 404.1527(c). If a treating physician's opinion on the nature and severity of a claimant's impairments is well-supported by medically acceptable clinical and laboratory diagnostic techniques, and is not inconsistent with the other substantial evidence in the record, the ALJ must give it controlling weight. Konuch v. Astrue, No. 11-193L, 2012 WL 5032667, at *4-5 (D.R.I. Sept. 13, 2012); 20 C.F.R. § 404.1527(c)(2). The ALJ's decision must articulate the weight given, providing “good reasons” for the determination. See Sargent v. Astrue, No. CA 11-220 ML, 2012 WL 5413132, at *7-8, 11-12 (D.R.I. Sept. 20, 2012) (where ALJ failed to point to evidence to support weight accorded treating source opinion, court will not speculate and try to glean from the record; remand so that ALJ can explicitly set forth findings). The regulations confirm that, “[w]e will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion.” 20 C.F.R. § 404.1527(c)(2).

         III. Background

         A. Medical and Personal History

         After the accident and continuing throughout 1996, Plaintiff had more than ten surgeries and serious medical complications, including infections that required aggressive treatment. One of the several surgeons involved in performing these procedures was Dr. Trafton, who is listed as the “primary attending physician” on several records generated between February and July 1996. Tr. 268-584. However, by the end of 1996, Plaintiff had made a remarkable recovery; his bowel function was restored and he was able to walk, albeit limited by neuropathy, chronic weakness and a foot-drop in the left lower extremity. Tr. 53, 67. There is no evidence of any treatment in 1997. In February 1998, he sought treatment for a hernia repair and a minor ...