Srybny v. Berryhill

Filing 18

Judge Rya W. Zobel: Memorandum of Decision entered denying 9 Motion for Order Reversing Decision of Commissioner; granting 14 Motion for Order Affirming Decision of Commissioner. Judgment may be entered affirming the Commissioner's decision. (Urso, Lisa)

Case 1:18-cv-10707-RWZ Document 18 Filed 02/20/20 Page 1 of 10

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 18-10707-RWZ

MICHAEL E. SRYBNY
v.
ANDREW SAUL,1
Commissioner of the Social Security Administration

MEMORANDUM OF DECISION
February 20, 2020

ZOBEL, S.D.J.
Michael E. Srybny (“plaintiff” or “claimant”) appeals from a final decision by the
Commissioner of Social Security (“the Commissioner”) upholding an administrative law
judge’s (“ALJ”) denial of plaintiff’s application for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act. 42 U.S.C. §§ 401–433.
I.

Background2
Plaintiff was diagnosed in 2002 with Crohn’s disease, which was manageable

until December 22, 2014, when he reported to the emergency room with abdominal

1

Pursuant to Fed. R. Civ. P. 25(d), Andrew Saul has been substituted for Nancy A. Berryhill as
Commissioner of the Social Security Administration.
2 After the ALJ denied his claim, plaintiff submitted supplemental medical evidence from his treating
physician to the Appeals Council. I am restricted, however, to the record before the ALJ, even when the
Appeals Council permits claimant to offer new evidence into the record before denying review. See
LeBlanc v. Halter, 22 F. App'x 28, 29 (1st Cir. 2001) (citing Mills v. Apfel, 244 F.3d 1, 5 (1st Cir. 2001)).

1

Case 1:18-cv-10707-RWZ Document 18 Filed 02/20/20 Page 2 of 10

discomfort. He had surgery for a perforation and abscess of his bowel, and returned to
the hospital two more times, on January 10 and 29, 2015, when the abscess had to be
drained again. Then, on April 3, he underwent a planned partial colectomy to address
the persistent abscess.
On discharge from his January 29 visit, plaintiff reported having bowel
movements, with no mention of diarrhea, while on February 11, he explicitly reported
“no diarrhea.” On May 6, he saw Dr. Francis MacMillan, his gastroenterologist, for the
follow up visit to the partial colectomy. Plaintiff described his stool frequency as once
daily. By June 9, he reported to Dr. MacMillan that he had some accidents and was
going to the bathroom three to four times a day; nevertheless, the doctor suggested he
was “over the worst.”
A follow up colonoscopy in July revealed no findings suggestive of Crohn’s
disease. By December 1, 2015 Dr. MacMillan noted that, although plaintiff had
regained 21 pounds and the Crohn’s disease appeared to be in remission, plaintiff’s
diarrhea was poorly controlled, with eight to twelve bowel movements per day. The
doctor prescribed amitriptyline and instructed plaintiff to call him in one to two weeks to
follow up on the medicine’s effectiveness. Treatment notes do not state whether
plaintiff called.
Six months later, on May 2, 2016, plaintiff had his annual physical with Dr. ShiaoAng Shih. He was maintaining his weight but reported again having eight to ten bowel
movements a day. On July 5, he complained to Dr. MacMillan that his diarrhea could

2

Case 1:18-cv-10707-RWZ Document 18 Filed 02/20/20 Page 3 of 10

be very disruptive. Again, his weight was steady. In August 2016, an endoscopy and
colonoscopy revealed no evidence of Crohn’s disease.
Plaintiff applied for DIB on January 10, 2015 when he was suffering from the
abscess of his bowel. The ALJ held a hearing on November 21, 2016. Plaintiff testified
about his several gastrointestinal difficulties, including abdominal pain, frequent
diarrhea, accidents, and trouble digesting food. He also submitted two medical source
statements from Dr. MacMillan, dated October 13, 2016, and November 9, 2016. These
appear to be filled out in different handwriting but contain the same signature. In
answer to the question “does your patient need a job that permits ready access to a
restroom?” the first statement says no, whereas the second statement says yes. In
answer to “will your patient sometimes need to take unscheduled restroom breaks
during a workday?” the first says “unknown” and the second says “quite possibly, but
unable to measure.” The doctor answered “not assessed” or “unknown” to the majority
of the rest of the questions on both statements.
The ALJ denied plaintiff’s claims; plaintiff appealed to the Appeals Council on
June 28, 2017. The request for review was denied February 12, 2018, making the ALJ’s
ruling the final decision of the Commissioner for purposes of review.
Applicable Statutes and Regulations
To receive DIB benefits, a claimant must be unable “to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment
which ... has lasted or can be expected to last for a continuous period of not less than
3

Case 1:18-cv-10707-RWZ Document 18 Filed 02/20/20 Page 4 of 10

12 months.” 42 U.S.C. § 423(d)(1)(A). The impairment or impairments must be “of
such severity that [a claimant] is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A); see
also 20 C.F.R. § 404.1505(a). The ALJ analyzes whether a claimant is disabled by
using an established five-step sequential evaluation process. See 20 C.F.R. §
404.1520(a)(4)(i)–(v). If any of the steps conclusively yields the answer that the
claimant is disabled, the ALJ so determines and does not proceed to the next step. Id.
at 404.1520(a)(4).
The Five Step Framework and the ALJ’s Decision in This Case
Step 1 The ALJ must first decide whether the claimant is currently engaging in
substantial gainful work activity, which would mean he is not disabled. 20 C.F.R. §
404.1520(b). In this case, the ALJ found that plaintiff was not currently so engaged and,
therefore, moved to Step 2.
Step 2 At this step, the requirement is that the claimant’s impairments be
“severe,” defined as “significantly limit[ing] [his] physical or mental ability to do basic
work activities,” id. § 404.1520(c), and that it lasted or must be expected to last for a
continuous period of at least twelve months (the “durational requirement”), 20 C.F.R. §
404.1509. Here, the ALJ found that claimant’s “Crohn’s disease status post right
colectomy” was a severe medical impairment, but she did not explicitly make a finding
regarding the durational requirement.

4

Case 1:18-cv-10707-RWZ Document 18 Filed 02/20/20 Page 5 of 10

Step 3 This step calls for the ALJ’s decision whether the impairment meets or
equals an entry in the Listing of Impairments, 20 C.F.R. § 404, Subpt. P, App. 1, and,
again, whether it meets the durational requirement. 20 C.F.R. § 404.1520(4)(iii). If so,
the claimant is considered disabled. If not, the ALJ must next determine the claimant’s
residual functional capacity (“RFC”), which is “the most [a claimant] can still do despite
[his] limitations.” 20 C.F.R. § 404.1545(a)(1).
The ALJ in this case determined that plaintiff’s Crohn’s disease did not meet or
medically equal the criteria of Listing 5.06 (Inflammatory Bowel Disease) because his
gastroenterologist did not support such a finding. She also referenced the statement of
one of the two state medical experts, who “opined that the claimant medically equaled
Listing 5.06a, however, subsequently acknowledged that the claimant’s condition did
not meet the necessary 12-month durational requirement.” Claimant further failed the
requirement of Listing 5.08 (weight loss due to any digestive disorder) because his body
mass index simply did not meet the threshold.
Based on these findings, the ALJ then determined plaintiff’s RFC to be “light
work…except with additional limitations” that included the need for ready access to a
bathroom. In landing on this RFC, she noted that plaintiff received relatively infrequent
treatment after July 2015 and that his complaints did not support the extent of the
limitations alleged. At the same time, she declined to ascribe any weight to plaintiff’s
two medical source statements by the treating physician, Dr. MacMillan, because the
assessments were dated less than one month apart, appeared to be written by two

5

Case 1:18-cv-10707-RWZ Document 18 Filed 02/20/20 Page 6 of 10

different individuals, lacked any specificity, and were inconsistent with the doctor’s own
treatment notes.
Step 4 calls for a decision whether the claimant’s RFC allows him to perform his
past relevant work. 20 C.F.R. § 404.1520(f). If so, he is not disabled. Here, the ALJ
found that Mr. Srybny would not be able to perform his previous job of concrete form
setter. That leads to
Step 5 which places on the Commissioner “the burden . . . of coming forward
with evidence of specific jobs in the national economy that the applicant can still
perform.” Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001); see also 20 C.F.R. §§
404.1560(c)(2). The ALJ consults a vocational expert (“VE”) and/or the MedicalVocational Grid Rules (“Grid Rules”)3 to determine whether the claimant can do other
work in light of his RFC, age, education, and work experience. In doing so, the ALJ in
this case concluded that there are such jobs for Mr. Srybny and, therefore, denied the
claim.
Standard of Review
The Commissioner’s findings of fact are conclusive if based on the correct legal
standard and supported by substantial evidence. 42 U.S.C. § 405(g); Seavey, 276
F.3d at 10. The substantial evidence standard is “not high” and only requires “such
relevant evidence as a reasonable mind might accept as adequate to support a

3

The Grid Rules, 20 C.F.R. § 404, Subpt. P, App. 2, contain a matrix of exertional capacity, age,
education, and work experience. If a claimant’s limitations are exclusively exertional, the ALJ can rely
solely on the Grid Rules to meet the burden at Step 5.

6

Case 1:18-cv-10707-RWZ Document 18 Filed 02/20/20 Page 7 of 10

conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consol. Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)). So long as the Commissioner’s
determinations are supported by substantial evidence, they must be affirmed, “even if
the record arguably could justify a different conclusion.” Rodriguez Pagan v. Sec’y
Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987) (per curiam). Further, resolving
credibility issues “and the drawing of permissible inference from evidentiary facts are
the prime responsibility of the [Commissioner].” Rodriguez v. Sec'y of Health & Human
Servs., 647 F.2d 218, 222 (1st Cir. 1981) (quoting Rodriguez v. Celebrezze, 349 F.2d
494, 496 (1st Cir. 1965)).
II.

Discussion
Plaintiff challenges the ALJ’s determinations, claiming that she 1) erred in finding

that the plaintiff’s condition did not meet the twelve-month durational requirement; 2) did
not follow the treating physician rule; 3) drew improper inferences from the medical
records; and 4) did not give proper weight to plaintiff’s testimony regarding his
symptoms.4 Plaintiff also alleges the ALJ failed to consider his hernia as a physical
limitation.

4

In his reply memorandum, plaintiff also appears to impute error at Step 3 by differentiating his chronic
diarrhea as an independent impairment worthy of consideration as a severe impairment, rather than as a
symptom of Crohn’s disease. I decline to adopt this view because plaintiff would fail to meet his burden
at Step 3 of showing that chronic diarrhea would meet the durational requirement since the first mention
of diarrhea in the medical records is on December 1, 2015. Moreover, most of the ALJ’s concerns still
apply to diarrhea as a separate ailment, given the vagueness of the treating physician’s statements
regarding the severity of symptoms, the infrequency of plaintiff’s later treatment, and the plaintiff’s ability
to maintain his weight.

7

Case 1:18-cv-10707-RWZ Document 18 Filed 02/20/20 Page 8 of 10

A. Twelve-Month Durational Requirement
Plaintiff contests the ALJ’s holding that his condition did not meet the twelvemonth durational requirement. In so finding, the ALJ specifically cited the medical
consultant’s conclusion to that effect. Later in her opinion, the ALJ also spent
considerable time explaining the evidence suggesting the severity of plaintiff’s
impairment diminished over the course of treatment. She notes that his treating
physician reported no signs of Crohn’s disease in July 2015, that it was in remission in
December 2015, and that plaintiff was maintaining his weight. This is sufficient
evidence that his condition would not last at least twelve months.
B. The Treating Physician Rule
Mr. Srybny also argues that the ALJ violated the treating physician rule in its
consideration of Dr. MacMillan’s two medical source statements. The rule simply says
that ALJs generally give more weight to medical opinions from treating sources, unless
there are “good reasons” otherwise. 20 C.F.R. 505.1527(c)(2). But the ALJ is not
required to give a treating source opinion greater weight. Arroyo v. Sec'y of Health &
Human Servs., 932 F.2d 82, 89 (1st Cir. 1991). In determining the weight to be given,
“[t]he better an explanation a source provides for a medical opinion, the more weight
[the ALJ] will give that medical opinion.” 20 C.F.R. 404.1527(c). Here, the ALJ pointed
out that the two statements provided by Dr. MacMillan were vague, and indeed, the
doctor did not answer the majority of questions on the forms, including those regarding
the frequency, duration, or urgency of plaintiff’s bathroom breaks. Further, the

8

Case 1:18-cv-10707-RWZ Document 18 Filed 02/20/20 Page 9 of 10

statements were inconsistent with Dr. MacMillan’s own contemporaneous treatment
notes. These conclusions constitute “good reason” for the ALJ’s credibility judgment.
C. ALJ’s Inference from the Record
Plaintiff further argues that the ALJ improperly inferred from Mr. Srybny’s limited
follow up treatment that his condition was not as severe as now suggested. “[T]he
drawing of permissible inference from evidentiary facts [is] the prime responsibility of the
[Commissioner],” Rodriguez, 647 F.2d at 222, and conflicts in the evidence must be
determined by the Commissioner, not the court. Irlanda Ortiz v. Sec’y of Health and
Human Servs., 955 F.2d 765, 769 (1st Cir. 1991). Plaintiff asserts no error, only his
disagreement with the ALJ’s weighing of the evidence. This is not enough to overturn
her decision.
D. Weight Given to Plaintiff’s Testimony
Plaintiff next argues the ALJ gave insufficient weight to plaintiff’s testimony
regarding the severity of his symptoms. Specifically, he claims that the ALJ’s crediting
the vocational expert’s finding that he must work near a bathroom was logically
inconsistent with the ALJ’s disbelief of his testimony regarding the need to use the
bathroom frequently. But he blurs two distinct concepts here: namely plaintiff’s need for
access to a bathroom and the amount of time that he would need to spend in that
bathroom. It is entirely consistent for the ALJ to find that he frequently needs access to
a bathroom but not accept his testimony about how long he would be off task to use it.
Furthermore, the ALJ’s determinations regarding subjective symptoms are entitled to
9

Case 1:18-cv-10707-RWZ Document 18 Filed 02/20/20 Page 10 of 10

deference. Frustaglia v. Sec'y of Health & Human Servs., 829 F.2d 192, 195 (1st Cir.
1987).
E. Plaintiff’s Hernia
Finally, plaintiff alleges that the ALJ failed to consider his hernia as a physical
limitation affecting his ability to work. But the ALJ does consider the hernia in stating
that physical examinations of plaintiff “reveal[ed] no more than abdominal tenderness, a
scar from his past surgeries and a reducible ventral hernia.” Moreover, it is the
plaintiff’s burden to show that he is disabled and that his impairment prevents him from
engaging in substantial gainful activity. Guyton v. Apfel, 20 F. Supp. 2d 156, 161 (D.
Mass. 1998). The plaintiff himself only said the hernia restricted him from lifting over 25
pounds, which the RFC accommodates. He alleged no other limitations based on his
hernia.
III.

Conclusion
Given the ALJ’s extensive analysis of the entirety of plaintiff’s treatment course,

her decision is fully supported by substantial evidence. The motion to reverse or
remand (Docket # 9) is DENIED; the motion to affirm (Docket # 14) is GRANTED.
Judgment may be entered affirming the Commissioner’s decision.

February 20, 2020
DATE

/s/ Rya W. Zobel
RYA W. ZOBEL
SENIOR UNITED STATES DISTRICT JUDGE

10