Nunes v. Colvin

Filing 36

District Judge Leo T. Sorokin: MEMORANDUM AND ORDER entered. For the reasons stated above, the Court DENIES Nunes's Motion to Reverse, Doc. No. 20, and ALLOWS the Defendants Motion to Affirm, Doc. No. 29. re 20 Motion for Order Reversing Decision of Commissioner; 29 Motion for Order Affirming Decision of Commissioner (Simeone, Maria)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

MANUEL NUNES,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Civil No. 16-CV-11499-LTS

MEMORANDUM AND ORDER
September 20, 2017
SOROKIN, J.
Manuel Nunes submitted a Title II application for a period of disability and disability
insurance benefits on September 18, 2012, claiming an alleged onset date of May 29, 2012. R. at
125. Nunes’s claims were denied initially and upon reconsideration on August 16, 2013. Id.
Nunes filed a written request for a hearing on September 11, 2013, and appeared and testified at
the hearing on September 4, 2014. Id. On September 24, 2014, the ALJ found at step one that
Nunes had not engaged in substantial gainful activity since May 29, 2012, R. at 127; at step two
that Nunes had multiple severe impairments, id.; at step three that those impairments did not
meet the definition of a severe impairment or combination of impairments under the regulations,
R. at 129; at step four that Nunes’s RFC allowed for light work except that he was limited to
standing or walking at least six hours in an eight hour day, sitting with normal breaks about six
hours in an eight hour day, could climb, balance, stoop, kneel, crouch, crawl, and push and pull
with his left upper extremity only occasionally, could never climb ropes, ladders and scaffolds,

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could occasionally interact with the public, coworkers, and supervisors, could perform simple,
routine, and repetitive tasks, and must avoid concentrated exposure to noise and moderate
exposure to vibrations, fumes, odors, dust, gases, and poor ventilation, R. at 129–30; and at step
five that jobs existed in significant numbers in the national economy that Nunes could perform,
R. at 138.
The Appeals Council granted Nunes’s request for review on March 3, 2016. R. at 5. On
May 18, 2016, the Appeals Council issued a decision correcting Nunes’s date last insured to
December 31, 2014. R. at 5. The Appeals Council also found that Nunes was under a disability
beginning September 24, 2014, but was not disabled before that. R. at 8.
Nunes then filed this action seeking judicial review by the Court pursuant to 42 U.S.C. §
405(g). Nunes asserts that he was disabled since his alleged onset date of May 29, 2012. Doc.
No. 31 at 1. For the reasons stated below, the Court DENIES Nunes’s Motion to Reverse, Doc.
No. 20, and ALLOWS the Defendant’s Motion to Affirm, Doc. No. 29.
ANALYSIS 1
A. Standard of Review
Here, because the Appeals Council (“AC”) granted review, the Court considers the
Council’s decision as a final decision. Sims v. Apfel, 530 U.S. 103, 106–07 (2000) (“SSA
regulations provide that, if the Appeals Council grants review of a claim, then the decision that
the Council issues is the Commissioner’s final decision.”). Accordingly, the Court reviews the
AC decision and the portions of the ALJ decision that it adopted. Id. The Court’s jurisdiction is
limited to reviewing the Administrative Record to determine whether the ALJ applied the proper

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In the interest of brevity, the Court will relate the factual background only where it is relevant
to the analysis. The Court has considered the entire record and adopts the ALJ’s findings of facts
as amended by the Appeals Council.
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legal standards and whether the decision is supported by substantial evidence in the record. 42
U.S.C. § 405(g); Manso-Pizarro v. Sec’y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir.
1996) (per curiam). Substantial evidence is such relevant evidence as a reasonable mind,
reviewing the evidence in the record as a whole, could accept as adequate to support a
conclusion. Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
Determinations of credibility and the resolution of conflicts in the evidence are for the
Commissioner and not for the doctors or for courts. Id.; see Richardson v. Perales, 402 U.S. 389,
399 (1971).
Nevertheless, administrative findings of fact 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) (per curiam). If the Court finds that the Commissioner’s
decision is based on legal error or is not supported by substantial evidence, it has the power to
modify or reverse the Commissioner’s decision, with or without remanding for rehearing. 42
U.S.C. § 405(g).
B. ALJ’s RFC Finding
Pursuant to 20 C.F.R. §§ 404.1520(e) and 416.920(e), the ALJ must determine a
claimant’s RFC, which is a claimant’s ability to do physical and mental work on a sustained
basis despite limitations from her impairments. In making the RFC finding, the ALJ must
consider all of the claimant’s impairments, including impairments that are not severe. See 20
CFR 404.1520(e), 404.1545, 416.945; SSR 96-8p. The ALJ formulated Nunes’s RFC as follows:
After careful consideration of the entire record, I find that, through the date last
insured, the claimant had the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except that the claimant is limited to standing or
walking at least 6 hours in an 8-hour day; sitting with normal breaks about 6 hours
in an 8-hour day; occasionally climbing, balancing, stooping, kneeling, crouching,
or crawling; never climbing ropes, ladders, and scaffolds; occasionally pushing and

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pulling with his left upper extremity; occasionally interacting with the public,
coworkers, and supervisors; and performing simple, routine, and repetitive tasks.
The claimant must further avoid concentrated exposure to noise and moderate
exposure [to] vibrations, fumes, odors, dust, gases, and poor ventilation.
R. at 129–30.
C. SSR 16p-3
At the time of the ALJ’s decision in September 2014, Social Security Ruling (“SSR”) 967p was the standard governing the evaluation of symptoms in disability claims. See SSR 96-7p,
1996 WL 374186 (July 2, 1996). In March 2016, the Social Security Administration (“SSA”)
published SSR 16-3p, a new ruling superseding SSR 96-7 on the subject. See SSR 16-3p, 2016
WL 1237954 (March 16, 2016). This new ruling was effective when the AC issued its decision
on May 18, 2016. See R. at 9. While the AC did not explicitly state whether it applied SSR 96-7p
or SSR 16-3p, Nunes contends that because the AC adopted the ALJ’s findings, and the ALJ
applied SSR 96-7, the AC’s decision relies on SSR 96-7. Doc. No. 31 at 9 (“The AC adopted the
‘ALJ’s statements regarding the pertinent provisions of the’ Commissioner’s Regulations. That
would include the ALJ’s application of Social Security Ruling 96-7p.”). Thus, Nunes argues that
the AC made an error of law by utilizing SSR 96-7p instead of SSR 16-3p in its evaluation. Id. at
10–11.
The ALJ’s decision is consistent with the requirements of SSR 16-3p, and therefore the
AC did not err in adopting the ALJ’s findings. As other courts have noted, SSR 16-3p is a
clarification of the previous ruling rather than a substantive change. See, e.g., Patterson v.
Colvin, No. 13-CV-1040-JDB-TMP, 2016 WL 7670058, at *8 (W.D. Tenn. Dec. 16, 2016),
report and recommendation adopted, No. 13-1040, 2017 WL 95462 (W.D. Tenn. Jan. 10, 2017)
(finding that SSR 16-3p “simply clarifies the SSA’s process for evaluating symptoms”); R.P. v.
Colvin, No. 1:15-CV-00449-SMS, 2016 WL 7042259, at *9 n.7 (E.D. Cal. Dec. 5, 2016)

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(“Ruling 16-3p implemented a change of diction rather than substance.”); Palmer v. Colvin, No.
6:16-CV-00223-NKL, 2017 WL 26908, at *7 (W.D. Mo. Jan. 3, 2017) (“[T]he ALJ's evaluation
of [claimant]'s subjective complaints under SSR 96–7p, the then-existing ruling, rather than SSR
16–3p did not have a practical effect on the outcome.”). While SSR 16-3p eliminates the use of
the term “credibility,” the “change in wording is meant to clarify that administrative law judges
aren’t in the business of impeaching claimants’ character.” Cole v. Colvin, 831 F.3d 411, 412
(7th Cir. 2016). ALJs can “continue to assess the credibility of pain assertions by applicants,
especially as such assertions often cannot be either credited or rejected on the basis of medical
evidence.” Id. (emphasis in original). SSR 16-3p explicitly states that “[t]he adjudicator will
consider any personal observations of the individual in terms of how consistent those
observations are with the individual’s statements about his or her symptoms as well as with all of
the evidence in the file.” Id. Evidence from non-medical sources may be considered under 96-7p
or 16-3p, but the ALJ did not need medical expertise to provide his personal observations.
The ALJ “[is] not required to credit the claimant’s testimony” and is permitted to rely on
personal observations of the claimant's demeanor during the hearing in making credibility
determinations. See Del Rosario v. Colvin, No. 13–30017, 2014 WL 1338153, at *7 (D.Mass.
Mar. 31, 2014) (recognizing the established principle that the ALJ “is not required to take the
claimant's assertions of pain at face value” (citing Bianchi v. Sec'y of Health & Human Servs.,
764 F.2d 44, 45 (1st Cir.1985))); Johnson v. Apfel, 240 F.3d 1145, 1147–48 (8th Cir. 2001);
Reinertson v. Barnhart, 127 F. App’x 285, 290 (9th Cir. 2005) (“Although an ALJ's personal
observations, standing alone, cannot support a determination that a claimant is not credible, they
may form part of that determination.”).

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Nunes challenges various statements in the ALJ’s opinion that he believes show the ALJ
improperly assessing Nunes’s credibility or making medical judgments based on personal
observations or analysis of Nunes’s daily activities. Doc. No. 31 at 13–17. Here, when the ALJ
discussed credibility, he was properly assessing Nunes’s statements about his symptoms to
determine whether these statements were consistent with the overall medical record and other
evidence, rather than improperly assessing Nunes’s character. See R. at 135–37; Wood v.
Berryhill, No. 4:15-CV-1248-LSC, 2017 WL 1196951, at *9 (N.D. Ala. Mar. 31, 2017) (finding
that the ALJ did not violate SSR 16-3p even though she used the term “credibility,” because she
was not assessing plaintiff's “general, or ‘overall’ character for truthfulness”). In evaluating an
individual’s symptoms, ALJs must do more than make “a single conclusory statement” or
“simply recite the factors described in the regulations.” SSR 16-3p 2016 WL 1119029, at *9
(March 16, 2016). ALJs’ must provide “specific reasons for the weight given to the individual’s
symptoms, be consistent with and supported by the evidence, and be clearly articulated so the
individual and any subsequent reviewer can assess how adjudicators” reached their decisions. Id.
The ALJ in this case met these requirements. As to the ALJ’s statements about Nunes’s
concentration or daily activities, these were proper considerations under SSR 16-3p and not a
case of the ALJ interpreting raw medical data. The ALJ was merely relying on personal
observations in making a determination about the credibility of Nunes’s assertions. See Del
Rosario, 2014 WL 1338153, at *7.
D. Disability Onset Date and Medical Opinion Evidence
Nunes concedes that, if the ALJ’s RFC assessment is correct, then his disability onset
date as determined by the AC is correct. See Doc. No. 33 at 1 (“The Commissioner’s residual
functional capacity (‘RFC’) assessment of limited light work resulted in a September 2014 onset.

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Whereas an RFC assessment of less than sedentary work would have resulted in a May 2012
onset.”).
Nunes challenges the AC’s and ALJ’s analysis of the medical opinion evidence which led
to a finding of limited light work. Nunes’s argument boils down to a disagreement with the
weight the ALJ gave to the different opinions. Nunes essentially asks the Court to “flip the
standard of review, and ask whether there is substantial evidence that would have supported the
ALJ in reaching a different conclusion, rather than asking whether there was substantial evidence
to support the decision the ALJ made.” Cordero Burgos v. Colvin, No. CIV. A. 13-30165-MGM,
2014 WL 4771737, at *4 (D. Mass. Sept. 23, 2014). The task of resolving evidentiary conflicts is
a task for the Commissioner and her designee, “not for the doctors or the courts.” Rodriguez v.
Sec’y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981). If substantial evidence
supports the ALJ’s conclusions, the Court will not disturb the ALJ’s findings. Id.
Here, the ALJ considered the many different medical opinions. Where the evidence was
conflicting, “he resolved those conflicts by giving more weight to some evidence and less to
others.” Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). He gave significant weight to
the State agency medical consultants for valid reasons, finding that their opinions are “consistent
with the overall medical evidence in the record, including limited findings on physical and
diagnostic exams, the conservative nature of his treatment, his good response to treatment, and
his significant activities of daily living.” R. at 138. Similarly, the ALJ discounted the opinions of
other physicians for valid reasons. For instance, it was well within the ALJ’s discretion not to
rely on the neuropsychological evaluation performed by Dr. Hirsch, which Dr. Hirsch himself
said “did not yield reliable and valid findings” due to potential malingering. Id. at 133. During
the evaluation, Dr. Hirsch administered a number of tests, including the Mini Mental Status

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Exam (“MMSE”), to determine whether Nunes had cognitive deficiencies. Doc. No. 31 at 17–19.
In his report, Dr. Hirsch acknowledged that the results “reflect significant cognitive impairments
frequently associated with individuals with significant head trauma or dementia,” but also that
the results were “consistent with individuals who are attempting to look more impaired than they
actually are.” R. at 472. The ALJ explained that he did not give weight to Dr. Hirsch’s findings
regarding the severity of Nunes’s cognitive impairments “due to the invalidity of the results.” Id.
at 137. Similarly, the ALJ considered Nunes’s nystagmus and unsteady gait but found that the
conditions were not as severe as Nunes claimed. The Court will not disturb the ALJ’s weighing
of the evidence where, as here, his conclusion is supported by substantial evidence. 2
Nunes claims that the AC improperly relied on the absence of medical records after
December 31, 2013, and that this absence should not be held against him. Doc. No. 31 at 11–12.
Nunes explains that he did not submit records beyond December 2013 because of the incorrect
DLI previously determined by the ALJ and the AC’s notice, which stated that he could submit
additional evidence only under limited circumstances that did not seem to apply to him. Id.
In his September 2014 decision, the ALJ found that Nunes’s DLI was December 31,
2013, and therefore only made findings about Nunes’s medical conditions through that date. R.
at 127, 129–30. The AC’s decision later corrected the DLI to December 31, 2014 and applied the

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The ALJ did mistakenly refer to a few exams in his opinion but his decision still is supported
by substantial evidence. The ALJ referred to an exam in August 2012 which assessed the range
of motion for Nunes’s left middle finger and used the result in concluding that Nunes’s shoulder
showed a full range of motion. Doc. No. 31 at 13. But other substantial evidence supported the
ALJ’s conclusion as to range of motion; the ALJ relied on x-ray and MRI evidence which
showed no significant impairments in reaching his conclusion and gave specific reasons for
discounting Nunes’s subjective complaints of pain and limitation. R. at 135. With regards to gait
and coordination, the ALJ also stated that there was no positive straight leg raise test but there
was such a test in the record. R. at 819. But the ALJ relied on other substantial evidence,
including imaging and Nunes’s own description of his daily activities, in assessing the intensity
of Nunes’s symptoms. R. at 136.
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ALJ’s findings through September 24, 2014, the date of the ALJ’s decision and the date on
which the AC states Nunes became disabled due to him being an “individual closely approaching
advanced age.” Id. at 7. In making this determination, the AC noted that the evidence in Nunes’s
medical record showed no significant changes in the claimant’s medical condition from
December 31, 2013, through September 24, 2014, and no evidence of significant ongoing
treatment. Id. at 6.
Nunes has not shown that the AC made any prejudicial error that merits a reversal or
remand. Finding that there were no significant changes in Nunes’s condition after December 31,
2013, the AC simply applied the ALJ’s findings about Nunes’s impairments as of that date
through September 24, 2014. See R. at 6. There was no finding of subsequent improvements to
Nunes’s condition by either the ALJ or the AC. Id. Thus, unless there were indeed significant
changes in Nunes’s medical condition after December 31, 2013, submitting additional medical
records would not have changed the AC’s disability assessment. Id. at 6. Nunes does not argue
that there have been such significant changes; in fact, Nunes has argued that his impairments are
“permanent” and reached a plateau, neither improving nor worsening since December 31, 2013. 3
Id. at 323; Doc. No. 31 at 11. Accordingly, Nunes’s argument fails.

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Although Nunes complains about the “incorrect DLI” in his brief, the core of Nunes’s objection
is that he did not submit additional documents to the AC because of the DLI that was incorrectly
determined by the ALJ, and that the AC therefore should not have relied on the lack of proof that
Nunes’s “pain and limitations remained or worsened after December 2013.” Doc. No. 31 at 11–
12. Nunes argues that he “could not envision a circumstance in which any additional records—
even if submitted—would change the outcome where the AC had made its intentions clear in its
notice.” Doc. No. 31 at 12. Such an assertion of prejudgment by the AC is baseless and,
considering the contents of the notice, without merit.
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CONCLUSION
For the reasons stated above, the Court DENIES Nunes’s Motion to Reverse, Doc. No.
20, and ALLOWS the Defendant’s Motion to Affirm, Doc. No. 29.

SO ORDERED.

/s/ Leo T. Sorokin
Leo T. Sorokin
United States District Judge

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