CASIMIR v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 25

REPORT AND RECOMMENDED DECISION re 13 Social Security Statement of Errors/Fact Sheet Objections to R&R due by 7/29/2021 By MAGISTRATE JUDGE JOHN C. NIVISON. (mtm)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
CARLA C.,
Plaintiff
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant

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1:20-cv-00292-JDL

REPORT AND RECOMMENDED DECISION
On Plaintiff’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 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 to obtain 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 September 19, 2019 decision of the
Administrative Law Judge. (ALJ Decision, ECF No. 11-2). 1 The ALJ’s decision tracks

Because the Appeals Council found no reason to review that decision (R. 1), Defendant’s final decision
is the ALJ’s decision.

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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 cardiac impairment, respiratory disorder, and depression and anxiety
disorder. (R. 46.) The ALJ further determined that Plaintiff had a residual functional
capacity (RFC) to perform sedentary work, including an ability to lift/carry ten pounds
occasionally, sit for six hours and stand and/or walk for two hours in an eight-hour
workday, can frequently stoop, can occasionally crouch, kneel, and balance on uneven
surfaces, but must avoid climbing, crawling, sharp objects, and working in settings
involving enclosed exposure to extreme heat and cold, humidity, fumes, dusts, gases, or
chemicals, or working around unprotected heights or heavy moving machinery.
Additionally, the ALJ found that Plaintiff can make simple work-related decisions, adapt
to simple changes in a routine work setting, and perform simple work tasks involving no
more than occasional interaction with the public, coworkers, and supervisors. (R. 48.)
Based on the RFC finding, the ALJ concluded that Plaintiff could not perform past
relevant work, but could perform other substantial gainful activity, including the specific
representative jobs of assembler, table worker, and document preparer. (R. 52-53.)
STANDARD OF REVIEW
A court must affirm the administrative decision provided the decision is based on
the correct legal standards and is supported by substantial evidence, even if the 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,
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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 (1) failed to assess properly the evidence
of Plaintiff’s potential absenteeism and (2) improperly assessed Plaintiff’s RFC.
A. Absenteeism
Plaintiff argues that the ALJ improperly concluded that Plaintiff’s hospitalization
and treatment history for her severe cardiac impairment and respiratory disorder did not
support a finding of significant off-task behavior or excessive absenteeism.
Plaintiff was hospitalized for at least 21 days over a four-month period in 2017,
beginning in July. 2 (R. 404-13, 418-30, 435-38, 440-43, 506-06, 493-516.) She was
initially hospitalized with acute-on-chronic exacerbation of heart failure with known
history of nonischemic cardiomyopathy with ejection fraction of 25 percent, paroxysmal
atrial fibrillation, insulin-dependent diabetes mellitus, and mild nonobstructive coronary

There is some uncertainty as to the exact number of days Plaintiff was hospitalized in 2017. Plaintiff states
she was hospitalized for 18 days, but according to the dates of hospitalization she lists (July 22-28 (seven
days), August 12-17 (six days), August 29-30 (two days), and October 20-25 (six days)), the total number
of days is 21. (See SOE at 7.) In the opposition brief, Defendant provides a chart of Plaintiff’s
hospitalizations that suggests a total of 22 days in 2017. (Opposition at 6.) The difference of a few days,
however, is not material to the assessment of Plaintiff’s argument.
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artery disease. (R. 408.) She was started on anticoagulant therapy and discharged. (Id).
From August 11 to August 17, 2017, Plaintiff was hospitalized for heavy menstrual
bleeding. (R. 436.) Plaintiff was taken off the anticoagulant and given a blood transfusion
for anemia. (R. 436, 421.) Plaintiff was hospitalized again in late August 2017 due to
heavy menstrual bleeding. (R. 421-25.)
In October 2017, Plaintiff was hospitalized for a urinary tract infection. (R. 49396.) She was also experiencing heavy bleeding, which led to anemia. (R. 504, 506.) An
urgent dilation and curettage and an endometrial ablation were performed. (R. 505, 512.)
Plaintiff sought acute care for respiratory complaints on four occasions starting in
November 2018. (R. 692, 705, 734, 776-77, 798, 802-05.) In November 2018, Plaintiff
was diagnosed with pneumonia and later with a viral syndrome for which conditions she
sought acute care on two occasions. (R. 690, 692, 776.) She was diagnosed with acute
bronchitis in December 2018. (R. 705.)
In February 2019, she sought acute care for nasal sinus congestion and was
hospitalized a few days later for fatigue, cough and multifactorial dyspnea. (R. 793.)
During her February 2019 hospitalization, an x-ray of Plaintiff’s esophagus revealed
moderate to severe soft tissue dysmotility possibly due to presbyesophagus. (R. 799, 80405.) The attending physician observed that Plaintiff’s “pulmonary problems may well be
a consequence of this.” (R. 803.) In May 2019, Plaintiff also received acute care for
nausea, back pain and heart palpitations. (R. 827-829.)
The ALJ concluded that the medical record reflected moderate physical signs of
Plaintiff’s cardiac and respiratory symptoms, while noting the multiple emergency room
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visits for her cardiac symptoms. (R. 50.) He explained that the medical records following
Plaintiff’s hospitalizations reflected only mild to moderate objective cardiac signs and
improving symptoms. (R. 49.) The ALJ also noted that the medical record reflected only
moderate respiratory symptoms and objective signs. (R. 49-50.) He found the moderate
objective signs did not support significant off-task behavior or excessive absenteeism. 3
(Id.)
Plaintiff contends that she was unable to be present for work for a total of 22 days
between July 22, 2017 and February 11, 2019, which, if averaged over an 18-month period,
would result in Plaintiff’s absence from work 1.2 days per month, exceeding the degree of
absenteeism tolerated by employers, according to the testimony of the vocational expert
who appeared at hearing. (See SOE at 8-9; R. 104.)
Under the Social Security Act, “disability” is defined to mean “an inability to
engage in 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 12 months.” 42 U.S.C. §
423(d)(1)(A). Defendant’s regulations state that unless an impairment “is expected to
result in death, it must have lasted or be expected to last for a continuous period of at least
12 months.” 20 C.F.R. §§ 404.1509, 416.909 (the so-called “duration requirement”). The
Supreme Court has held that the duration requirement applies “both to the ‘impairment’

Neither of the state agency medical consultants, whose opinions the ALJ found partially persuasive,
included any off-task or absenteeism limitation.
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and the ‘inability’ to work requirements.” Barnhart v. Walton, 535 U.S. 212, 222-23
(2002).
Given the durational requirement, to support a claim of excessive absenteeism even
where a claimant has experienced multiple and/or extensive hospitalizations, the claimant
must demonstrate that the acute symptoms that resulted in the hospitalization will persist.
Plaintiff has cited no legal authority to support her approach – to pro rate the number of
days she was in the hospital over the time necessary to satisfy the durational requirement
and/or to establish the level of monthly absenteeism that a vocational expert opined would
effectively eliminate jobs in the national economy that Plaintiff could perform. In fact, the
legal authority is to the contrary. See, e.g., Alyson G. v. Saul, No. 2:19-cv-00502, 2020
WL 6376640, at *6 (D. Me. Oct. 20, 2020) (although plaintiff had undergone a “serious
hospitalization” for acute postpartum depression, and her condition likely would have
impacted her attendance in the short-term, there was “no indication that this attendance
limitation would last longer than 12 months”); Chicky v. Comm’r Soc. Sec., No. 1:17-cv
819, 2018 WL 3720065, at *7 n.2 (W.D. Mich. July 23, 2018) (noting that while there was
evidence claimant had 20 days of hospitalization and 6 doctor visits in one year, claimant
failed to develop claim that his absenteeism was work preclusive and did not “demonstrate
that absenteeism due to the medical procedures lasted for a continuous period of more than
12 months.”); Jackson v. Berryhill, Case No. 3:13-00692, 2017 WL 4937612, at *10 (M.D.
Tenn. August 14, 2017) (seven hospitalizations in nine months did not necessitate finding
of excessive absenteeism because “Jackson’s emergency room visits ceased entirely less
than a year after they began, [therefore] the ALJ had no reason to include absenteeism
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related to medical treatment as an enduring limitation on Jackson’s ability to work in the
hypothetical she gave to the vocational expert.”). The reasoning of the courts which have
rejected similar arguments is sound. Plaintiff’s argument is unpersuasive.
Plaintiff also contends the ALJ erred when he did not address Plaintiff’s testimony
that in November 2018, she was discharged due to absenteeism from her job working at
the front desk of a hotel. In certain cases, an ALJ might be required to discuss in some
detail evidence that a claimant missed time from work or lost jobs due to absenteeism. For
instance, in Craig G.C. v. Saul, No. 2:20-cv-00217-JDL, 2021 WL 2012307 (D. Me. May
20, 2021), citing in part the plaintiff’s testimony regarding his absences from work, this
Court concluded the ALJ erred by failing to address the “material question of whether
plaintiff would be absent from work.” 2021 WL 2012307, at *4. In particular, the Court
found the ALJ did not adequately address the plaintiff’s testimony that he missed four days
each month due to his asthma and, notably, a medical expert’s opinion that as the result of
the plaintiff’s impairments, the plaintiff would miss more than four days each month. The
Court concluded that “the ALJ’s omission of any mention of [the expert’s] opinion
concerning absences was reversible error.” Id. In this case, Plaintiff’s testimony that she
lost one job due to absenteeism, 4 without any testimony or other evidence as to the number

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Plaintiff’s testified as follows:

Q. [W]hen you went – you decided to try to go back to work in, I believe, it was November of 2018,
can you tell us what happened, why that job didn’t continue.
A. I’d be at the desk, or at the front desk, I should say, and I would be coughing, and I’d kind of
get nervous, the bloody nose, I’d have to go to the bathroom, or other times I would just cough, and I
couldn’t stop, and I’d have to – and I’d walk away. Reservation-wise, the same thing, I’d have to put them
on hold, tell them to take the calls, and go take care of myself.

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and frequency of the absences that resulted in the termination of her employment and as to
whether the absences are likely to continue, does not require more comment by the ALJ. 5
B. RFC
The ALJ determined that Plaintiff has the RFC to perform sedentary work, with
additional postural, environmental and psychosocial restrictions. (R. 48.) The ALJ found
the opinions of the two state agency medical consultants, who opined that Plaintiff could
perform work at the light exertional level, partially persuasive. 6 (R. 50.) The ALJ
explained that the consultants’ opinions were only partially consistent with and supported

Q. [S]o why did that job end?
A. Because of my attendance.
Q. So they let you go?
A. Yeah.
Q. Had you violated their policy on absences?
A. I did.
(R. 87.)
Plaintiff also suggests that when the ALJ found that the evidence did not support Plaintiff’s contention
that she would be absent from work excessively, the ALJ impermissibly interpreted raw medical data. (SOE
at 10.) First, the duration requirement “is an issue that can be assessed as a matter of common knowledge,”
and where, as here, the ALJ supportably relied on treatment records showing improvement in Plaintiff’s
cardiac and respiratory conditions, he “did not run afoul of the rule against interpreting raw medical
evidence.” Faye L. v. Saul, No. 2:20-cv-00023-NT, 2021 WL 425984, at *6 (D. Me. Feb. 7, 2012) (rec.
dec. adopted, 2021 WL 1135017 (D. Me. Mar. 24, 2021)). In addition, the ALJ’s impression of the medical
record (i.e., “moderate physical objective signs”) does not constitute the interpretation of raw medical data.
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Donald Trumbull, M.D. and Benjamin Weinberg, M.D., opined that Plaintiff could lift or carry twenty
pounds occasionally and ten pounds frequently, and sit for six hours and stand or walk for six hours in an
eight-hour workday. (R. 116-18, 151-53.) They also included additional restrictions to occasional climbing
ramps, stairs, ladders, ropes, and scaffolds, and frequent balancing, stooping, kneeling, crouching, and
crawling. (Id.)

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by the evidence, noting Plaintiff’s testimony and that the medical record reflected moderate
physical symptoms. (Id.) The ALJ limited Plaintiff to performing only occasional postural
positions to account for Plaintiff’s subjective report of her difficulties in balancing. (Id.)
The ALJ determined that a restriction to sedentary work with further limitations better
accounted for her symptoms. (Id.)
To the extent the ALJ assessed an RFC more favorable than the medical experts
might have assessed does not require remand. Wanda B. v. Saul, No. 2:18-cv-00341-DBH,
2019 WL 3317969, at *4. (D. Me. July 24, 2019). See also, Davis v. Colvin, No. 1:14-cv343-JHR, 2015 WL 3937423 (D. Me. June 25, 2015); Wright v. Colvin, No. 2:14-cv-75JHR, 2015 WL 58458 (D. Me. Jan. 5, 2015); Soto v. Colvin, No. 2:14-cv-28-JHR, 2015
WL 58401 (D. Me. Jan. 5, 2015). In addition, Plaintiff’s contention that the ALJ cannot
rely upon the consulting experts or that the ALJ otherwise improperly interpreted raw
medical data because after the experts issued their reports, Plaintiff was treated for soft
tissue dysmotility in her esophagus, is unpersuasive. The ALJ may rely on experts’ reports
despite later-submitted evidence when the new evidence “does not call into question their
conclusions.” Emily A. v. Saul, No. 2:19-cv-00071-JDL, 2020 WL 2488576, at *7 (D. Me.
May 14, 2020). The record of Plaintiff’s treatment for the condition in 2019 does not
generate a question about the experts’ opinions. Plaintiff has not presented any persuasive
evidence to support a finding that the 2019 record requires a more restrictive RFC than
assessed by the ALJ. 7 See Paquin v. Colvin, No. 1:13-cv-360-JDL, 2014 WL 6679123, at

Because Plaintiff’s challenge to the ALJ’s RFC finding fails, Plaintiff’s related challenge to ALJ’s reliance
on the vocational expert’s opinion also fails.

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*3 (D. Me. Nov. 25, 2014).
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
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, within fourteen
(14) days of being served with a copy thereof. A responsive memorandum
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 15th day of July, 2021.

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