DOYON v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 20

MEMORANDUM DECISION By MAGISTRATE JUDGE JOHN H. RICH III. (nrg)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
CHRISTOPHER D.,
Plaintiff
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant

)
)
)
)
)
)
)
)
)
)

No. 1:17-cv-00377-JHR

MEMORANDUM DECISION1
This Social Security Disability (“SSD”) appeal raises the question of whether the
administrative law judge (“ALJ”) supportably found the plaintiff capable of performing work
existing in significant numbers in the national economy. The plaintiff seeks remand on the basis
that the ALJ’s residual functional capacity (“RFC”) determination is unsupported by substantial
evidence because she impermissibly discounted his testimony regarding the extent to which his
pain limited him and failed to give adequate weight to the opinions of treating and examining
physicians. See Plaintiff’s Itemized Statement of Specific Errors and Fact Sheet (“Statement of
Errors”) (ECF No. 9) at [6]-[10]. I conclude that the ALJ’s RFC determination is supported by
substantial evidence. Accordingly, I affirm the commissioner’s decision.2

1

This action is properly brought under 42 U.S.C. § 405(g). The commissioner has admitted that the plaintiff has
exhausted his administrative remedies. The case is presented as a request for judicial review by this court pursuant to
Local Rule 16.3(a)(2), which requires the plaintiff to file an itemized statement of the specific errors upon which he
seeks reversal of the commissioner’s decision and to complete and file a fact sheet available at the Clerk’s Office, and
the commissioner to file a written opposition to the itemized statement. Oral argument was held before me pursuant
to Local Rule 16.3(a)(2)(D), requiring the parties to set forth at oral argument their respective positions with citations
to relevant statutes, regulations, case authority, and page references to the administrative record. The parties have
consented to have me conduct all proceedings in this matter, including the entry of judgment. ECF No. 18.
2
The plaintiff also argues that the ALJ erred in failing to adopt the testimony of a vocational expert that a person who
was off task 15 to 20 percent of the time or could not regularly and consistently report to work did not have a lightduty work capacity. See Statement of Errors at [6]. This point hinges on the success of the plaintiff’s argument that
the ALJ erred in determining his RFC. Because I find no such error, this point likewise is unavailing.

1

Pursuant to the commissioner’s sequential evaluation process, 20 C.F.R. § 404.1520;
Goodermote v. Sec’y of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the ALJ found, in
relevant part, that the plaintiff met the insured status requirements of the Social Security Act
through December 31, 2018, Finding 1, Record at 22; that he had the severe impairment of a spine
disorder, Finding 3, id.; that he had the RFC to perform light work as defined in 20 C.F.R.
§ 404.1567(b) in that he could lift and/or carry 20 pounds occasionally and 10 pounds frequently,
sit for six hours in an eight-hour workday, and stand and/or walk for a total of at least four hours
in an eight-hour workday, that he could occasionally crawl, crouch, kneel, stoop, balance, and
climb, and that he could not perform constant overhead work bilaterally, Finding 5, id. at 24; that,
considering his age (36 years old, defined as a younger individual, on his alleged disability onset
date, December 17, 2013), education (at least high school), work experience (transferability of
skills immaterial), and RFC, there were jobs existing in significant numbers in the national
economy that he could perform, Findings 7-10, id. at 32; and that he, therefore, had not been
disabled from December 17, 2013, through the date of the decision, August 26, 2016, Finding 11,
id. at 33. The Appeals Council declined to review the decision, id. at 1-3, making the decision the
final determination of the commissioner, 20 C.F.R. § 404.981; Dupuis v. Sec’y of Health & Human
Servs., 869 F.2d 622, 623 (1st Cir. 1989).
The standard of review of the commissioner’s decision is whether the determination made
is supported by substantial evidence. 42 U.S.C. § 405(g); Manso-Pizarro v. Sec’y of Health
& Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be
supported by such relevant evidence as a reasonable mind might accept as adequate to support the
conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Sec’y of Health
& Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

2

The ALJ reached Step 5 of the sequential evaluation process, at which stage the burden of
proof shifts to the commissioner to show that a claimant can perform work other than his past
relevant work. 20 C.F.R. § 404.1520(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987);
Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the
commissioner’s findings regarding the plaintiff’s RFC to perform such other work. Rosado v.
Sec’y of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).
I. Discussion
A. Assessment of Plaintiff’s Statements Concerning Symptoms
The ALJ found that, although the plaintiff’s “medically determinable impairment[] could
reasonably be expected to cause the alleged symptoms[,]” his “statements concerning the intensity,
persistence and limiting effects of these symptoms [we]re not entirely consistent with the medical
evidence and other evidence in the record[.]” Record at 28. Specifically, she deemed his
allegations not fully supported by his treatment history or activities of daily living and
“undermined by contradictory statements and facts in the record.” Id. at 28-30.
The plaintiff contends that this analysis transgressed Social Security Ruling 96-7p (“SSR
96-7p”) in that the ALJ created inconsistencies where none existed. See Statement of Errors at
[6]-[7]. He argues that, contrary to the ALJ’s findings, his activities of daily living were consistent
with his subjective allegations, his statement that he had right foot drop was consistent with the
underlying medical evidence of record, and his reports to various providers about the reasons his
back impairment became disabling in December 2013 were consistent with one another. See id.
at [6]-[9].
As a threshold matter, as the commissioner observes, see Defendant’s Opposition to
Plaintiff’s Statement of Errors (“Opposition”) (ECF No. 15) at 2, Social Security Ruling 16-3p
(“SSR 16-3p”), rather than SSR 96-7p, supplies the governing rule in this case, the ALJ’s decision
3

having issued on August 26, 2016, see Record at 33.3 Accordingly, I refer herein to SSR 16-3p,
although there is no material difference between the two rulings for purposes of the instant appeal.4
Pursuant to SSR 16-3p, the factors that an ALJ is to consider in evaluating the intensity,
persistence, and limiting effects of an individual’s symptoms include (i) daily activities, (ii) “[t]he
type, dosage, effectiveness, and side effects of any medication an individual takes or has taken to
alleviate pain or other symptoms[,]” and (iii) “[t]reatment, other than medication, an individual
receives or has received for relief of pain or other symptoms[.]” SSR 16-3p at 671.
1. Activities of Daily Living
The ALJ concluded that the plaintiff’s “activities of daily living and functioning belie the
severity of the symptoms alleged[,]” explaining:
For example, he testified he lived with his parents, managed finances, watched
television, did stretching exercises, performed self-care, and rode in a car. Exhibit
5E dated January 28, 2015, by the [plaintiff] indicated he lived in a house with
family, watched television, read, did stretching exercises, walked, performed selfcare with some difficulty, took medication independently, prepared simple meals,
did small loads of laundry, went outside most days, rode in a car, went out alone,
drove until recently, shopped, managed finances, talked on the phone, went out with
a friend weekly, and could follow written/oral instructions. . . . Exhibit 19F
reflected he went hunting and fishing on occasion, read, watched television,
enjoyed sitting by the river and watching nature, walked, did stretching exercises,
attended appointments, and was dating a nurse and the [plaintiff] related he stayed
functional. . . . Thus, the [plaintiff]’s activities support a greater level of functioning
than alleged.
Record at 29.

3

SSR 16-3p took effect, superseding SSR 96-7p, on March 28, 2016. See Social Security Ruling 16-3p Titles II And
XVI: Evaluation Of Symptoms In Disability Claims, 82 Fed. Reg. 49462, 49462-63 (Oct. 25, 2017).
4
The commissioner rescinded SSR 96-7p and replaced it with SSR 16-3p to “eliminate[e] the use of the term
‘credibility’” and “clarify that subjective symptom evaluation is not an examination of an individual’s character.”
SSR 16-3p, reprinted in West’s Social Security Reporting Service, Rulings 1983-1991 (Supp. 2018), at 665. The
plaintiff makes no argument specific to this change. See Statement of Errors at [6]-[9]. In addition, at oral argument,
his counsel contended the same result obtains regardless of whether SSR 96-7p or 16-3p applies.

4

The plaintiff argues that he “never alleged that he was bed ridden” and that all of the
foregoing evidence is consistent with his claims that he had difficulty walking, standing, or sitting
and could go for brief walks or watch television. Statement of Errors at [7]. He adds that the fact
that he could watch television, occasionally shop, and make a simple meal proves neither that he
was capable of light-duty work nor that his activities of daily living were inconsistent with his
allegations of his symptoms’ severity. See id. at [8]. At oral argument, his counsel elaborated that
the plaintiff’s back condition by its nature waxes and wanes, as a result of which his functional
capacity on a good day is hardly indicative of his functional capacity overall or of inconsistencies
in his allegations.
Yet, the ALJ did not rely solely on the plaintiff’s activities of daily living to demonstrate
his capacity to perform a light level of work. She gave “substantial evidentiary weight” to the
RFC opinion of agency nonexamining consultant Benjamin Weinberg, M.D., Record at 31, 78-79
– an assignment of weight that the plaintiff has not separately challenged, see generally Statement
of Errors.5 “[W]hile a claimant’s activities of daily living, standing alone, do not constitute
substantial evidence of a capacity to undertake full-time remunerative employment, an [ALJ]
properly may take such activities into consideration in assessing . . . a claimant’s allegations.”
Rucker v. Colvin, Civil No. 2:13-CV-218-DBH, 2014 WL 1870731, at *7 (D. Me. May 8, 2014)
(citations omitted).
The ALJ also reasonably deemed the plaintiff’s activities of daily living inconsistent with
his allegations as she recounted them, which included that “he could stand for 5 to 10 minutes then
his back started to act up; he could walk for 10 to 15 minutes on a normal street surface[;] . . . he

The ALJ purported to give substantial evidentiary weight to the “opinions of the State agency physicians in Exhibit
3A[.]” Record at 31. However, there is only one opinion contained in Exhibit 3A, that of Dr. Weinberg. See id. at
73-82.
5

5

could sit for 30 to 45 minutes[;] . . . [h]e reported that he did not shop or do anything at his parents’
house[;] [and] [h]e indicated that there were times when he had to stop and lie down the rest of the
day.” Record at 25.
2. Treatment History
The ALJ also found the plaintiff’s “allegations of pain and limitations . . . not consistent
with or supported by the overall record, which reflected improvement with treatment and
noncompliance with treatment recommendations.” Id. at 29. In his statement of errors, the
plaintiff did not challenge this finding, which the ALJ buttressed with detailed references to the
record. See Statement of Errors at [6]-[9]; Record at 28-29. However, in response to the
commissioner’s contention that this finding was supported by substantial evidence, see Opposition
at 4-5, the plaintiff’s counsel asserted at oral argument that the ALJ erroneously relied on the lack
of a narcotics prescription for his client, which he represented is not the state of the art in treating
chronic back pain given the current opioid overuse crisis. This argument is unavailing, both
because the plaintiff’s counsel identified no record evidence to support that proposition and
because the ALJ catalogued other evidence, including the plaintiff’s failure to complete physical
therapy, in drawing negative inferences from his treatment history. See Record at 28-29.
3. Contradictory Statements and Facts
The ALJ deemed the plaintiff’s allegations “undermined by contradictory statements and
facts in the record[,]” among them, that (i) he “was inconsistent regarding the alleged onset date
of disability in that he stated the flare of back and right leg pain was caused by reaching down at
work then he attributed it to shoveling and at other times he denied any inciting event[,]” and (ii)
“[w]hile [he] alleged right foot drop, records reflected he generally had a normal gait with no
stumbling.” Id. at 30.

6

The plaintiff contends that he testified that he occasionally stumbled and that the medical
records support a diagnosis of right foot drop, and that he consistently reported to treating providers
that he worked as a welder until December 17, 2013, when pain from a re-injury that he sustained
became so severe that he was forced to stop work. See Statement of Errors at [8]-[9].
Although the plaintiff identifies support for his allegation of a right foot drop, the standard
is whether substantial evidence supports an ALJ’s decision, not a claimant’s allegations. As the
commissioner observes, see Opposition at 6, the record contains evidence of doctors’ examinations
that did not reveal a right foot drop and occasions on which the plaintiff denied that he had an overt
right foot drop, see Record at 433, 442, 537, 544. That constituted substantial evidence in support
of the ALJ’s finding on this point.
The plaintiff argues that, while various treating providers indicated that his disabling back
injury was work-related, shoveling-related, or not related to any precipitating event, his
representations about his December 2013 flare-up were “remarkably consistent[,]” and, because
“doctors are not stenographers” and do not all ask the same questions, there was “bound to be
some discrepancy in the history as [the plaintiff went] from doctor to doctor, from year to year.”
Statement of Errors at [9]. The commissioner acknowledges that the plaintiff’s “understanding of
the precipitating event leading to his pain exacerbation could have evolved over time as he spoke
with doctors and put matters in context.” Opposition at 8. However, she correctly notes that this
was only one among many identified inconsistencies. See id.; Record at 30.
In sum, even if the ALJ erred in finding inconsistencies in the plaintiff’s explanation for
the reason his back injury allegedly became disabling, her evaluation of his allegations of disabling
symptoms readily survives the deferential standard of review that continues to apply following the
adoption of SSR 16-3p, but for the use of the term “credibility.” See, e.g., Frustaglia v. Sec’y of

7

Health & Human Servs., 829 F.2d 192, 195 (1st Cir. 1987) (“The credibility determination by the
ALJ, who observed the claimant, evaluated his demeanor, and considered how that testimony fit
in with the rest of the evidence, is entitled to deference, especially when supported by specific
findings.”).
B. Weight Given to Opinions of Treating, Examining Physicians
The plaintiff complains that the ALJ gave inadequate weight to the opinions of treating
physician Dean Chamberlain, D.O., and examining physician Douglas M. Pavlak, M.D. See
Statement of Errors at [9]-[10].6 I find no error.
The ALJ acknowledged that Dr. Chamberlain completed “forms dated February 23, 2014,
March 31, 2014, April 28, 2014, and July 8, 2014, which opined the [plaintiff] had no work
capacity[,]” that Dr. Chamberlain “stated he could not determine if the impairment was expected
to be permanent[,]” and that Dr. Chamberlain “then reported on September 9, 2014, and January
9, 2015, that the [plaintiff] had no work capacity and a permanent impairment.” Record at 30. She
noted, however, that these were not physical RFC assessments “but rather conclusory statements
unsupported by the overall evidence of record such that these forms are given little weight.” Id.
at 30-31.
The plaintiff concedes that an opinion as to whether a claimant is disabled is never entitled
to controlling weight. See Statement of Errors at [9]-[10].7 However, he complains that, in

6

In his statement of errors, the plaintiff described both Dr. Chamberlain and Dr. Pavlak as treating physicians. See
Statement of Errors at [9]-[10]. However, at oral argument, his counsel conceded that Dr. Pavlak, who had examined
the plaintiff twice for purposes of a workers’ compensation claim, was an examining physician.
7
Indeed, as the commissioner points out, see Opposition at 9, “an opinion that a claimant is disabled is an opinion on
an issue reserved to the commissioner and, thus, entitled to no special significance even if offered by a treating
source[,]” Brown v. Berryhill, No. 1:17-cv-00196-JAW, 2018 WL 1891572, at *4 (D. Me. Apr. 20, 2018) (rec. dec.,
aff’d May 9, 2018) (citing 20 C.F.R. §§ 404.1527(d)(1), (3), 416.927(d)(1), (3)). “[T]he failure of an [ALJ] to adopt
a treating medical source's opinion on an issue reserved to the commissioner cannot, standing alone, provide the basis
for remand.” Id. (citation and internal quotation marks omitted).

8

deeming Dr. Chamberlain’s statements “conclusory,” the ALJ failed to read them in conjunction
with his detailed office notes of the same dates. Id. at [10].
This plaint is without merit. The ALJ summarized the medical evidence of record in detail,
including the Chamberlain notes, deeming that evidence inconsistent with the plaintiff’s
allegations of disabling limitations. See Record at 25-28. She specifically noted that Dr.
Chamberlain “advised the [plaintiff] to maintain normal day-to-day activities.” Id. at 27.
The ALJ also acknowledged that, in an April 8, 2015, report, Dr. Pavlak indicated that the
plaintiff “was unable to work and had not returned to his prior level of functioning[,]” and in a
June 8, 2016, report, “Dr. Pav[l]ak stated the [plaintiff] met or at least equaled in severity or
duration Listing 1.05 [Appendix 1 to C.F.R. Part 404, Subpart P (the “Listings”)] as the [plaintiff]
had pain, muscle spasm, and limitation in range of motion of the lumbar spine and appropriate
radicular distribution of significant motor loss with muscle weakness and sensory loss.” Id. at 31.8
However, she stated that “there is no evidence that . . . Dr. Pav[l]ak saw the [plaintiff]
between the examination in April of 2015 and the assessment in June of 2016” and that she deemed
his opinion inconsistent with the medical evidence as a whole and “in excess of [Dr. Pavlak’s own]
findings on the April of 2015 exam, which included slightly restricted lumbar range of motion
with mild pain on end range but no pain behavior, negative straight leg raising, minimal lumbar
tenderness, diminished pinprick sensation in the medial right calf/foot with otherwise intact
sensation, 2+/4 deep tendon reflexes, and within normal strength.” Id.
The plaintiff contends that Dr. Pavlak confirmed in April 2015 that he was “suffering from
the ‘expected sequelae of lumbar discectomy times 2 would (with?) significant multileveled disc

8

Dr. Pavlak presumably meant to cite Listing 1.04, pertaining to disorders of the spine, rather than Listing 1.05,
pertaining to amputation. See Listings 1.04, 1.05, Listings. However, nothing turns on the error.

9

disease” and that he was not able to work. Statement of Errors at [10] (quoting Record at 531)
(errors in quotation corrected) (parenthetical in original).
However, he fails to explain how the ALJ’s conclusion that the Pavlak opinion was at odds
with the medical evidence of record, including the specific findings of Dr. Pavlak that she cited,
was wrong. In turn, inconsistency with other medical evidence of record is a good reason to
discount even the opinion of a treating source. See, e.g., Campagna v. Berryhill, No. 2:16-cv00521-JDL, 2017 WL 5037463, at *4 (D. Me. Nov. 3, 2017) (rec. dec., aff’d Jan. 2, 2018) (“[L]ack
of support and inconsistency with other substantial evidence of record are well-recognized bases
for affording a treating source’s medical opinion little or no weight.”).
The plaintiff, accordingly, fails to demonstrate entitlement to remand based on the ALJ’s
handling of the Chamberlain and Pavlak opinions.
II. Conclusion
For the foregoing reasons, the commissioner’s decision is AFFIRMED.
Dated this 24th day of August, 2018.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

10