KING v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 17

REPORT AND RECOMMENDED DECISION re 11 Social Security Statement of Errors/Fact Sheet, 1 Complaint filed by KORY S KING. Objections to R&R due by 10/25/2017. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
KORY S. KING,
Plaintiff
v.
NANCY A BERRYHILL, ACTING
COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION,
Defendant

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1:17-cv-00089-GZS

REPORT AND RECOMMENDED DECISION
On Plaintiff Kory King’s application for disability insurance benefits under Title II
and supplemental security income benefits under Title XVI of the Social Security Act,
Defendant, the Social Security Administration Acting Commissioner, found that Plaintiff
has severe impairments, but retains the functional capacity to perform substantial gainful
activity. Defendant, therefore, denied Plaintiff’s request for disability benefits. Plaintiff
filed this action for judicial review of Defendant’s final administrative decision pursuant
to 42 U.S.C. § 405(g).
Following a review of the record, and after consideration of the parties’ arguments,
I recommend the Court affirm the administrative decision.
The Administrative Findings
The Commissioner’s final decision is the December 29, 2015, decision of the

Administrative Law Judge (ALJ). (ECF No. 9-2, R. 22.)1 The ALJ’s decision tracks the
familiar five-step sequential evaluation process for analyzing social security disability
claims, 20 C.F.R. §§ 404.1520, 416.920.
The ALJ found that Plaintiff has severe, but non-listing-level impairments
consisting of diabetes, gastroparesis, peripheral neuropathy, affective disorder, and
substance abuse. (ALJ Decision ¶¶ 3 – 4.) The ALJ further determined that, despite his
impairments, Plaintiff has the residual functional capacity (RFC) to perform light exertion
work, stand/walk for six hours in an eight-hour day, and sit for six hours in an eight-hour
day, but is subject to multiple postural and environmental restrictions, and is able to
maintain attention, concentration, persistence, and pace for simple, routine work that does
not involve more than occasional contact with the public. (Id. ¶ 5.) While concluding that
the RFC would prevent Plaintiff from performing his past relevant work as an electrical
engineer, based in part on the testimony of a vocational expert, the ALJ found Plaintiff
could perform other substantial gainful activity, including the representative occupations
of assembler and packager. (Id. ¶¶ 6, 10.) The ALJ, therefore, concluded that Plaintiff was
not under a disability from the alleged onset date of September 12, 2013, through the date
of decision, December 29, 2015. (Id. ¶ 11.)
Standard of Review
A court must affirm the administrative decision provided the ALJ applied the correct
legal standards and the decision is supported by substantial evidence. This is so even if the

Because the Appeals Council found no reason to review that decision, the Acting Commissioner’s final
decision is the ALJ’s decision.
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record contains evidence capable of supporting an alternative outcome. Manso-Pizarro v.
Sec’y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per curiam); Rodriguez Pagan v. Sec’y of
HHS, 819 F.2d 1, 3 (1st Cir. 1987). Substantial evidence is evidence that a reasonable
mind might accept as adequate to support a finding. Richardson v. Perales, 402 U.S. 389,
401 (1971); Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st Cir. 1981). “The ALJ’s
findings of fact are conclusive when supported by substantial evidence, but they are not
conclusive when derived by ignoring evidence, misapplying the law, or judging matters
entrusted to experts.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).
Discussion
Plaintiff argues that the ALJ erred when he relied on the opinion of Disability
Determination Services consultant Craig Billinghurst, M.D., because Dr. Billinghurst did
not adequately assess the impact of Plaintiff’s gastroparesis symptoms. (Statement of
Errors at 3 – 5, ECF No. 11.) Plaintiff cites multiple medical records that support his
symptoms, including nausea, vomiting, and diarrhea, and their frequency. (Id. at 5.) In
addition, to the extent the ALJ found Plaintiff to be noncompliant with his care providers’
recommendations, Plaintiff contends the ALJ did not perform the required regulatory
analysis. (Id. at 6 – 7, citing Social Security Ruling 82-59 and Program Operations Manual
System (POMS) § DI 23010.005.) Plaintiff asserts that the only probative evidence of a
recommendation that would reduce Plaintiff’s symptoms is the opinion of Nurse
Practitioner Deborah Martin, who advised that Plaintiff will need to visit the emergency
department “about every 4 weeks” to manage his symptoms. (R. 7 – 8, citing R. 1077.)

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A.

Gastroparesis
As a consequence of type I diabetes and other factors, Plaintiff experiences severe

gastroparesis, a condition that causes his stomach to empty slowly and results in nausea
and vomiting. (Ex. 14F, R. 1077.) The condition is difficult to control, particularly as
Plaintiff has an allergy to the most commonly prescribed medication for the condition. (Id.)
The medical records reflect Plaintiff has a history of visiting the emergency department on
a near monthly basis as a consequence of symptoms associated with gastroparesis.
The consulting experts who have assessed Plaintiff’s combined impairments,
including gastroparesis, and Plaintiff’s RFC, have determined that Plaintiff retains the
capacity for a subset of light work. (Richard T. Chamberlin, MD, RFC Assessment of June
17, 2014, Ex. 2A, R. 70 – 72, Ex. 4A, R. 85 – 87; Craig Billinghurst, MD, RFC Assessment
of Oct. 29, 2014, Ex. 6A, R. 101 – 103 & Ex. 8A, R. 117 – 119.) In particular, Dr.
Billinghurst’s RFC assessment fully supports the ALJ’s RFC findings. Plaintiff has not
introduced a competing RFC assessment or any assessment from an acceptable medical
source whose opinion may be entitled to controlling weight. 20 C.F.R. §§ 404.1513(a),
404.1527, 416.913(a), 416.927; Edgecomb v. Colvin, No. 1:14-CV-00004-JCN, 2015 WL
224765, at *2 (D. Me. Jan. 15, 2015).
Plaintiff argues that Dr. Billinghurst’s opinion is not reliable given that record
evidence reflects Plaintiff’s gastroparesis is not and cannot be controlled, which evidence
includes a letter of Nurse Practitioner Martin. (Ex. 15F, R. 1077.) Dr. Billinghurst and the
ALJ were not persuaded that Plaintiff’s gastroparesis cannot be controlled. The ALJ cited
Plaintiff’s daily activities, his diet, his drug use, his failure to take prescribed medication
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when ordered, and his decision to end prior hospitalizations against medical advice, to
support the ALJ’s determination that, with compliance, the symptoms are controllable and
that the condition does not limit Plaintiff’s activity level to the degree Plaintiff contends.
(ALJ Decision at 7, R. 28-29, citing Ex. 13F, R. 937, 977, 978, 1055, 1057 – 58; see also
R. 1059 – 60.) The ALJ thus supportably found Plaintiff’s testimony lacking in credibility
and found the consultant’s opinions to be persuasive.2 In short, the record contains
substantial evidence in support of the ALJ’s RFC determination and the ALJ’s assessment
of Plaintiff’s credibility.
B.

Social Security Ruling 82-59
Plaintiff argues that remand should be ordered for the ALJ to comply with Social

Security Ruling 82-59. The Ruling provides that a claimant who “fails without justifiable
cause to follow treatment prescribed by a treating source which the [Commissioner]
determines can be expected to restore the individual’s ability to work, cannot by virtue of
such ‘failure’ be found to be under a disability.” Titles II and XVI: Failure to Follow
Prescribed Treatment, Soc. Sec. Ruling 82-59 (SSA 1982), 1982 WL 31384, at *1. Where
a claimant has refused treatment, the ALJ must develop the record to allow the claimant to
provide his or her reasons for refusing treatment. Id.
Contrary to Plaintiff’s argument, “SSR 82-59 does not bar the administrative law
judge from [taking] evidence [of noncompliance] into account in the context of his
While the ALJ considered NP Martin’s letter, the ALJ gave the record little weight because NP Martin
did not express an opinion in functional terms, her underlying treatment notes reflect Plaintiff’s harmful
activities (which activities do not comply with her own care recommendations), and NP Martin has
repeatedly emphasized the particular importance of diet in managing Plaintiff’s condition. (ALJ Decision
at 9, R. 30; see also Ex. 8F, R. 662, 664.)
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credibility assessment.” Anderson v. Astrue, No. 1:11-CV-109-DBH, 2012 WL 283018,
at *6 (D. Me. Jan. 30, 2012). See also Talgo v. Astrue, No. 1:09-CV-00005-JAW, 2009
WL 3163335, at *3 (D. Me. Sept. 29, 2009). Even if SSR 82-59 applied, “the Ruling does
not mandate that the adjudicator engage in a protracted development of the issue in all
cases.” Crocker v. SSA Comm’r, No. 1:09-CV-459-JAW, 2010 WL 3274509, at *6 n.3 (D.
Me. Aug. 16, 2010). The purpose of the Ruling is to enable the claimant to justify
noncompliance. Id.
In a typical case that implicates SSR 82-59, the claimant elects to forego a treatment
or procedure that the record reflects could restore functional capacity. In this case, the
issue is not whether a certain treatment or procedure could restore functional capacity.
Rather, the issue is whether Plaintiff’s reported ongoing symptoms are the result of an
uncontrollable condition (gastroparesis) or the product of his failure to follow simple
recommendations and avoid certain activities that directly contribute to the symptoms.
Plaintiff engages in activities (e.g., poor diet and drug abuse) that on this record can fairly
be regarded as having a significant negative relationship to Plaintiff’s gastroparesis
symptoms. The ALJ, therefore, did not err when he failed to discuss SSR 82-59. Remand
is thus not warranted.
CONCLUSION
Based on the foregoing analysis, I recommend the Court affirm the administrative
decision.
NOTICE
A party may file objections to those specified portions of a magistrate
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judge’s report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, and request for oral
argument before the district judge, if any is sought, within fourteen (14) days
of being served with a copy thereof. A responsive memorandum and any
request for oral argument before the district judge shall be filed within
fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right to
de novo review by the district court and to appeal the district court’s order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 11th day of October, 2017.

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