KELLEY v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
Filing
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REPORT AND RECOMMENDED DECISION re 14 Social Security Statement of Errors/Fact Sheet. Objections to R&R due by 11/19/2018. By MAGISTRATE JUDGE JOHN C. NIVISON. (MFS)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ALDEN K.,
Plaintiff
v.
SOCIAL SECURITY ADMINISTRATION
COMMISSIONER,
Defendant
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2:18-cv-00112-NT
REPORT AND RECOMMENDED DECISION
On Plaintiff Alden K’s application for disability insurance benefits (DIB) under
Title II and supplemental security income (SSI) benefits under Title XVI of the Social
Security Act, Defendant, the Social Security Administration Commissioner, found that
Plaintiff was under a disability as of the filing date of his SSI claim, and awarded SSI
benefits for the period beginning June, 2015.1 Based on the ALJ’s finding that Plaintiff
failed to prove disability onset prior to his date last insured under Title II, December 31,
2013, Defendant denied Plaintiff’s DIB claim.
Plaintiff filed this action to obtain judicial review of Defendant’s final
administrative decision pursuant to 42 U.S.C. § 405(g). Plaintiff asserts that his disability
began on June 30, 2012.
Following a review of the record, and after consideration of the parties’ arguments,
I recommend the Court affirm the administrative decision.
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Supplemental security income, if awarded, is payable, at the earliest, as of the month following the month
in which the claimant files the underlying application for benefits. 42 U.S.C. § 416.335.
The Administrative Findings
The Commissioner’s final decision is the April 21, 2017, decision of the
Administrative Law Judge. (ALJ Decision, ECF No. 10-2.)2 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, in the period between the alleged onset date and the
date last insured, had impairments consisting of thrombocytopenia, hypertension, and
hyperlipidemia, but that the impairments were not severe for occupational purposes
because they imposed no more than a slight limitation on Plaintiff’s ability to engage in
basic work activities. (ALJ Decision at 3 ¶ 3, R. 13 – 14.) Of particular note, the ALJ
found that because prior to the date last insured, Plaintiff consistently reported feeling well
and had normal findings upon examination, and that given the “extensive gap in the
treatment history” between January 2012 and October 2013, Plaintiff’s alleged onset in
2012 was unreliable.3 (R. 15.) In further support of his determination that Plaintiff’s onset
was after the date last insured (December 31, 2013), the ALJ noted that in February 2014,
Plaintiff was not receiving any treatment for thrombocytopenia and was only taking
Tylenol to address reports of pain consistent with his eventual carpal tunnel syndrome
diagnosis.4 (Id.)
Because the Appeals Council found no reason to review that decision (R. 1), the Acting Commissioner’s
final decision is the decision of the Administrative Law Judge.
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3
Plaintiff obtained treatment in June 2013 for a dental infection that does not factor into his claim of
disability. (Ex. 1F, R. 247.)
4
In October 2013, Plaintiff reported “some numbness” in his fingers and toes. (Ex. 1F, R. 244.)
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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,
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 (1) that the ALJ’s findings concerning the nature and severity of his
impairments prior to December 31, 2013, are not supported by substantial evidence, (2)
that the ALJ erred in his assessment of the medical opinion evidence, and (3) that the ALJ
erred by not calling a medical expert at his hearing to offer an opinion as to the most likely
date of onset of disability. (Statement of Errors at 4, 5, 7, ECF No. 14.)
1. Nature and severity of impairments
Plaintiff maintains that the ALJ erred in his assessment of the impairment in 2013
in part because he did not discuss reports of pain in the feet and left knee in September
2009, a shoulder impairment secondary to a remote (30+ year old) injury, or the history of
Plaintiff’s treatment for hypertension. (Statement of Errors at 4.) Plaintiff, however, does
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not cite and the record does not include sufficient evidence to support his contention that
the medical record before December 2013 establishes Plaintiff was disabled.
Regarding Plaintiff’s lower extremeties, the record of treatment in 2009 for acute
pain (Ex. 12F, ECF No. 10-7) does not provide a reliable basis for disability prior to the
date last insured.
In fact, by alleging an onset date in 2012, Plaintiff implicity
acknowledges that Plaintiff’s 2009 medical records do not support a disability finding. As
to hypertension, which is among the impairments the ALJ addressed at step 2, as Defendant
notes, treatment records reflect that in June 2013 and October 2013, Plaintiff was taking
prescribed medication, had no complaints of hypertension, and the condition was deemed
to be under control. (Response at 6, ECF No. 18, citing R. 242 – 249.) The records
regarding Plaintiff’s shoulder also fail to compel a finding of an earlier onset date. For
instance, an October 19, 2016, post-operative report concerning arthroscopy of left
shoulder reflects Plaintiff did not seek treatment until years after the date last insured. (Ex.
13F, ECF No. 10-7.) While reports related to the procedure suggest a chronic condition,
the records suggest the surgery was the result of “worsening” symptoms in the “last 6
months.” (R. 450.)
The ALJ appropriately considered and assessed the medical record and Plaintiff’s
report of symptoms. The ALJ observed that Plaintiff’s impairments could be expected to
produce his symptoms, but that the intensity, persistence and limiting effects of the
impairment alleged by Plaintiff were not corroborated by contemporaneous medical
records, which reflect unremarkable findings, prior statements by Plaintiff that he was
feeling well, the absence of statements suggesting functional limitation (but for “some
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numbness”), and an extensive gap in treatment. (R. 14 – 15.) In short, the ALJ’s findings
regarding the nature and extent of Plaintiff’s alleged impairments prior to his date last
insured are supported by the record.
2. Opinion evidence
Plaintiff argues the ALJ did not adequately assess and weigh the expert medical
opinion evidence. (Statement of Errors at 5 – 6.) Plaintiff’s argument is unpersuasive.
While two experts involved in Plaintiff’s care opined that Plaintiff’s limitations existed as
early as June 30, 2012 (March 2016 Medical Source Statement of Ted Mohlie, MD, Ex.
7F; April 2016 Medical Source Statement of Robert Stein, MD, Ex. 8F), the ALJ
supportably determined that the record did not contain any contemporaneous medical
evidence to support their views, and that the gap in treatment, Plaintiff’s reports of feeling
well, and the unremarkable findings within the relevant period supported a contrary
finding. The ALJ permissibly concluded that the opinions did not warrant controlling
weight, and instead supportably relied upon and gave great weight to the March 2016
opinion of consulting expert Benjamin Weinberg, M.D., who reviewed the record for
purposes of reconsideration of Defendant’s denial of Plaintiff’s DIB claim. (R. 15.) Dr.
Weinberg opined that the record did not demonstrate a severe impairment prior to the date
last insured. (Ex. 6A, ECF No. 10-3.) The ALJ’s finding that Plaintiff was not disabled
within the relevant time period is thus supported by medical expert opinion evidence. (R.
15, citing Ex. 6A.)
3. Failure to call medical expert at hearing
Plaintiff contends the ALJ should have called an expert witness at Plaintiff’s hearing
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to address the specific question of disability onset, because in the absence of supportive
testimony from an expert, the ALJ necessarily had to rely on his lay assessment of the
record. (Statement of Errors at 7.) As discussed above, the ALJ relied in part on medical
expert opinion evidence provided by Dr. Weinberg. Contrary to Plaintiff’s argument,
therefore, the ALJ did not judge matters entrusted to the experts. Furthermore, the ALJ is
not required to call a medical expert to address the issue of disability onset if the record
otherwise permits a finding; the ALJ must do so only if the record is ambiguous. Fischer
v. Colvin, 831 F.3d 31, 32 (1st Cir. 2016) (discussing Social Security Ruling 83-20). Here,
the medical record is not ambiguous. The ALJ, therefore, supportably determined that
Plaintiff was not disabled prior to the date he was last insured.
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, 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.
Dated this 5th day of November, 2018.
/s/ John C. Nivison
U.S. Magistrate Judge
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