BERUBE v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
Filing
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REPORT AND RECOMMENDED DECISION re 9 SOCIAL SECURITY BRIEF Objections to R&R due by 2/21/2024 By MAGISTRATE JUDGE KAREN FRINK WOLF. (mlm)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
TINA B.,
)
)
Plaintiff
)
)
v.
)
)
MARTIN O’MALLEY,
)
Commissioner of Social Security, )
)
Defendant
)
No. 1:23-cv-00077-LEW
REPORT AND RECOMMENDED DECISION
The Plaintiff in this Social Security Disability (SSD) and Supplemental
Security Income (SSI) appeal asserts that the Administrative Law Judge (ALJ)
improperly relied on the testimony of medical expert Joseph Gaeta, M.D., and applied
the wrong legal standard in assessing the expert opinions of record. See Plaintiff’s
Brief (ECF No. 9) at 7-19. I discern no reversible error and, accordingly, recommend
that the Court affirm the Commissioner’s decision.
I. Background
This case returns to this Court after the Court vacated a prior decision of the
Commissioner denying benefits and remanded the matter for further proceedings.
See Record at 771.
Following that remand, a different ALJ found that since
September 23, 2013, the Plaintiff’s alleged onset date of disability, she had severe
impairments of degenerative disc disease, bipolar disorder, generalized anxiety
disorder, post-traumatic stress disorder (PTSD), and alcohol use disorder, and since
2018, had additional severe impairments of right rotator cuff tear, bilateral carpal
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tunnel syndrome, and residuals from right ankle fracture with arthritis of the foot.
See id. at 775. He concluded that prior to June 18, 2019, the Plaintiff retained the
residual functional capacity (RFC) to perform work existing in significant numbers
in the national economy and therefore was not disabled. See id. at 779, 792-94.
However, he found that she was disabled as of June 18, 2019, based on a further
erosion of her mental health functioning. See id. at 790, 792, 794. He noted that she
did not qualify for SSD benefits because she was not disabled at any time through
her date last insured for those benefits, March 31, 2016. See id. at 774, 794. The
Appeals Council declined to assume jurisdiction of the case following remand,
id. at 760-64, making the decision the final determination of the commissioner,
20 C.F.R. §§ 404.984(a), (b)(2), 416.1484(a), (b)(2).
II. Standard of Review
A final decision of the Commissioner is subject to judicial review to determine
whether it is based on the correct legal standards and supported by substantial
evidence.
See 42 U.S.C. §§ 405(g), 1383(c)(3); Seavey v. Barnhart, 276 F.3d 1, 9
(1st Cir. 2001).
Substantial evidence in this context means evidence in the
administrative record that a reasonable mind could accept as adequate to support an
ALJ’s findings. See Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). If an ALJ’s
findings are supported by substantial evidence, they are conclusive even if the record
could arguably support a different result. See Irlanda Ortiz v. Sec’y of Health & Hum.
Servs., 955 F.2d 765, 769 (1st Cir. 1991). But an ALJ’s findings “are not conclusive
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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).
II. Discussion
A. Challenge to ALJ’s Reliance on Gaeta Testimony
In assessing the Plaintiff’s physical RFC for the entire period at issue, the ALJ
afforded great weight to the opinion of Dr. Gaeta, who testified at the Plaintiff’s
hearing on June 9, 2020. See Record at 779, 790. The Plaintiff challenges the ALJ’s
reliance on Dr. Gaeta’s testimony that the Plaintiff had no manipulative limitations,
arguing that “Dr. Gaeta apparently missed significant portions of the record or read
them out of context, thus his opinion is not supported by the record.” Plaintiff’s Brief
at 9.
The bulk of this argument amounts to an unavailing invitation to the Court to
reweigh the evidence and substitute its judgment for that of an expert that the
Plaintiff’s carpal tunnel syndrome imposed no functional limitations. Compare id. at
9-12 with Record at 869-74 (Gaeta testimony); see Nathaniel-Bishop W.B. v. Kijakazi,
No. 1:20-cv-00323-JAW, 2021 WL 4147245, at *4 (D. Me. Sept. 12, 2021) (rec. dec.)
(declining to second-guess the opinions of agency nonexamining doctors where their
opinions were not facially inconsistent with the record and noting that courts
generally lack the expertise to second-guess the opinions of medical experts), aff’d,
2021 WL 5750391 (D. Me. Dec. 2, 2021); Becky K. G. v. Saul, No. 1:20-cv-00089-GZS,
2020 WL 7418974, at *5 (D. Me. Dec. 17, 2020) (rec. dec.) (“That the record could
arguably support a different conclusion does not entitle [a claimant] to remand; it is
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for the ALJ, not the court, to draw conclusions from the evidence and to resolve any
conflicts therein.”), aff’d, 2021 WL 66609 (D. Me. Jan. 7, 2021).
However, the Plaintiff has one more string to her bow: that six months after
Dr. Gaeta testified, she had surgery to alleviate symptoms of carpal tunnel syndrome
and DeQuervain’s tenosynovitis, and the ALJ did not “even attempt to weigh” the
import of that development in crediting the Gaeta testimony and discrediting other
experts’ assessment of manipulative limitations. Plaintiff’s Brief at 12-13; Plaintiff’s
Reply (ECF No. 12) at 5. She cites Ormon v. Astrue, 497 F. App’x 81 (1st Cir. 2012)
for the proposition that “it was improbable that [the Plaintiff’s] physicians would
have, in this case, performed surgery and other treatment for her if they had believed
that she did not have serious symptoms and limitations.” Plaintiff’s Brief at 12.
The Plaintiff falls short of showing that her surgery in December 2020 calls
into question the ALJ’s reliance on Dr. Gaeta’s testimony. Dr. Gaeta testified that,
although the Plaintiff had bilateral carpal tunnel syndrome, he assessed no
manipulative limitations given findings of full strength and normal range of motion
in her upper extremities with no radicular findings or nerve impingement. See
Record at 870, 873-74. The Plaintiff identifies no evidence that the findings on which
Dr. Gaeta relied changed prior to her surgery, see Plaintiff’s Brief at 12-13; Plaintiff’s
Reply at 5, and the Commissioner cites evidence that those findings did not change,
see Commissioner’s Brief (ECF No. 11) at
4-6.
Moreover, as counsel for the
Commissioner noted at oral argument, because the ALJ found the Plaintiff disabled
based on worsening mental health as of June 18, 2019, see Record at 794, as a
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practical matter, the Plaintiff would have to show that her December 2020 surgery
supports a worsening of her physical condition before June 18, 2019. She has not
done so.
B. Challenge to ALJ’s Weighing of Other Expert Opinions
The Plaintiff next contends that the ALJ violated the so-called “mandate rule”
when he failed to follow the directive of the Appeals Council on remand to apply rules
for evaluating expert opinions pertaining to applications filed prior to March 27, 2017
(the “old rules”), instead applying rules governing applications filed on or after
March 27, 2017 (the “new rules”). See Plaintiff’s Brief at 13-19. I am unpersuaded.
The old rules list factors relevant to “deciding the weight we give to any
medical opinion” when “controlling weight” is not given to a treating source’s medical
opinion. 20 C.F.R. §§ 404.1527(c), 416.927(c). By contrast, the new rules provide that
the Commissioner “will not defer or give any specific evidentiary weight, including
controlling weight, to any medical opinion(s) or prior administrative medical
findings.” Id. §§ 404.1520c(a), 416.920c(a).
The Plaintiff’s overarching point that the ALJ applied the wrong rules is not
well-taken. While, as the Commissioner notes, see Commissioner’s Brief at 7-8, the
ALJ’s decision contains boilerplate language referencing the new rules, see Record at
780, 786 (citing 20 C.F.R. §§ 404.1520c, 416.920c), the ALJ followed the old rules by
explaining the weight he accorded to each medical opinion of record, see id. at 786-90.
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The Plaintiff next takes issue with the ALJ’s handling of specific expert
opinions; however, for the reasons discussed below, I find no reversible error in those
respects.
The Plaintiff asserts that the ALJ ignored the May 2017 and November 2019
“medical opinions” of Bonnie Creech, Ph.D. Plaintiff’s Brief at 16; Plaintiff’s Reply at
3-4. The Creech documents are reports of neuropsychological evaluations, see Record
at 898-907, 1407-14, and the Plaintiff does not identify portions that she asserts
qualify as “medical opinions” pursuant to the old rules, see 20 C.F.R. §§
404.1527(a)(1),
416.927(a)(1) (“Medical opinions are statements from acceptable
medical sources that reflect judgments about the nature and severity of your
impairment(s), including your symptoms, diagnosis and prognosis, what you can still
do despite impairment(s), and your physical or mental restrictions.”).
In any event, as the Commissioner notes, see Commissioner’s Brief at 10, the
ALJ’s finding that the Plaintiff’s mental impairments were disabling as of
June 28, 2019, adequately accounts for any medical opinions in the November 2019
report, and the Plaintiff fails to show that Dr. Creech’s 2017 report is inconsistent
with the mental RFC that the ALJ assessed for the period prior to June 18, 2019, or
that Dr. Creech’s 2017 observation that the Plaintiff’s right finger-tapping speed was
severely impaired is a “medical opinion” rather than a clinical finding.
The Plaintiff next faults the ALJ for failing to meet the “articulation
requirements” of the old rules when he gave little weight to a February 2013 opinion
of agency nonexamining consultant Edward Quinn, Ph.D., solely on the basis that it
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“constituted a snapshot” of the Plaintiff’s functioning in February 2013, prior to the
Plaintiff’s alleged onset date of disability on September 23, 2013, and gave the
opinion of Lisa Hickey, L.C.S.W., significant weight without acknowledging that she
was not an “acceptable medical source” or “articulating any factors other than
consistency.”
Plaintiff’s Brief at 16-17.
He adds that the ALJ also failed to
sufficiently consider or articulate factors weighing against the adoption of the Gaeta
opinion. See id. at 19.
While the old rules require consideration of all relevant factors, see 20 C.F.R.
§§ 404.1527(c), 416.927(c), they require articulation of that consideration in three
respects. First, the ALJ “will always give good reasons . . . for the weight” given to a
claimant’s “treating source’s medical opinion.” Id. §§ 404.1527(c)(2), 416.927(c)(2).
Second, the ALJ “generally should explain the weight given to opinions from
providers” who are not acceptable medical sources “or otherwise ensure that the
discussion of the evidence” allows the reader to follow the ALJ’s reasoning “when such
opinions may have an effect on the outcome of the case.” Finally, the ALJ “must
explain the reasons” for giving the opinion of a provider who is “not an acceptable
medical source”—such as Ms. Hickey, a social worker—“greater weight than a
medical opinion from a treating source,” id. §§ 404.1527(f)(2); 416.927(f)(2).
Drs. Quinn and Gaeta are neither treating sources nor providers who are not
acceptable medical sources. Nonetheless, the ALJ explained the weight accorded
their opinions. See Record at 786, 790. He also detailed several reasons why he
accorded the Hickey opinion significant weight, including its consistency of the
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opinion with LCSW Hickey’s notes and the record as a whole and the thoughtfulness
of her analysis. See id. at 786. No more was required.
The Plaintiff, finally, asserts that the ALJ failed to accord controlling weight
to the opinion of her primary care physician, Rosalind Waldren, M.D., and proper
weight to the opinions of agency nonexamining consultants Richard Chamberlin,
M.D., and J.H. Hall, M.D. See Plaintiff’s Brief at 17-18; Record at 787-89. This
argument on its face invites the Court to reweigh the evidence.
IV. Conclusion
For the foregoing reasons, I recommend that the Commissioner’s decision be
AFFIRMED.
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 after 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.
Dated: February 7, 2024
/s/ Karen Frink Wolf
United States Magistrate Judge
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