United States District Court, D. Rhode Island
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 ...