Drouin v. US Social Security Administration, Commissioner

Filing 24

///ORDER denying 11 Motion to Reverse Decision of Commissioner; granting 14 Motion to Amend; granting 18 Motion to Affirm Decision of Commissioner. Clerk shall enter judgment and close the case. So Ordered by Chief Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Scott Allan Drouin
v.

Civil No. 18-cv-354-LM
Opinion No. 2018 DNH 226

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration

O R D E R
Scott Allan Drouin, proceeding pro se, brings this suit
seeking judicial review, pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3), of the decision of the Acting Commissioner of the
Social Security Administration, denying his application for
disability insurance benefits and social security income
benefits.

Drouin moves to reverse the Acting Commissioner’s

decision, and the Acting Commissioner moves to affirm.

For the

reasons discussed below, the court denies Drouin’s motion to
reverse and grants the Acting Commissioner’s motion to affirm.
I.

Motion to Amend
On August 17, 2018, Drouin filed his motion to reverse the

Acting Commissioner’s decision.

See doc. no. 11.

On September

7, 2018, Drouin filed a motion to amend his motion to reverse,
see doc. no. 14, in which he asks the court to consider various
pages of the administrative record in support of his original

motion.

The Acting Commissioner did not file an objection to

Drouin’s motion to amend.
The motion to amend is granted.

In light of Drouin’s pro

se status, the court will consider the motion to amend as an
addendum to Drouin’s motion to reverse and will consider both
filings when reviewing the Acting Commissioner’s decision.
II.

Judicial Review
In reviewing the final decision of the Acting Commissioner

in a social security case, the court “is limited to determining
whether the [Administrative Law Judge] deployed the proper legal
standards and found facts upon the proper quantum of evidence.”
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); accord Seavey
v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001).

The court defers to

the ALJ’s factual findings as long as they are supported by
substantial evidence.

42 U.S.C. §§ 405(g) & 1383(c)(3); see

also Fischer v. Colvin, 831 F.3d 31, 34 (1st Cir. 2016).
“Substantial evidence is more than a scintilla.

It means such

relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.”

Astralis Condo. Ass’n v. Sec’y Dep’t

of Housing & Urban Dev., 620 F.3d 62, 66 (1st Cir. 2010).
In determining whether a claimant is disabled, the ALJ follows a
five-step sequential analysis.

20 C.F.R. §§ 404.1520(a)(4) &

2

416.920(a)(4).1

The claimant “has the burden of production and

proof at the first four steps of the process.”
Barnhart, 274 F.3d 606, 608 (1st Cir. 2001).

Freeman v.
The first three

steps are (1) determining whether the claimant is engaged in
substantial gainful activity; (2) determining whether he has a
severe impairment; and (3) determining whether the impairment
meets or equals a listed impairment.

20 C.F.R.

§§ 404.1520(a)(4)(i)-(iii).
At the fourth step of the sequential analysis, the ALJ
assesses the claimant’s residual functional capacity (“RFC”),
which is a determination of the most a person can do in a work
setting despite his limitations caused by impairments, id.
§ 404.1545(a)(1), and his past relevant work, id.
§ 404.1520(a)(4)(iv).

If the claimant can perform his past

relevant work, the ALJ will find that the claimant is not
disabled.

See id. § 404.1520(a)(4)(iv).

If the claimant cannot

perform his past relevant work, the ALJ proceeds to Step Five,
in which the ALJ has the burden of showing that jobs exist in
the economy which the claimant can do in light of the RFC
assessment.

See id. § 404.1520(a)(4)(v).

Because the pertinent regulations governing disability
insurance benefits at 20 C.F.R. Part 404 are the same as the
pertinent regulations governing supplemental security income at
20 C.F.R. Part 416, the court will cite only Part 404
regulations. See Reagan v. Sec’y of Health & Human Servs., 877
F.2d 123, 124 (1st Cir. 1989).
1

3

A.

Background2
On December 30, 2014, Drouin filed an application for

disability insurance benefits and supplemental security income
benefits, alleging a disability onset date of March 31, 2014.3
His claims were denied at the initial level on June 9, 2015.
On June 9, 2016, Drouin, represented by counsel, appeared
before an Administrative Law Judge (“ALJ”) for a hearing.
Drouin testified about his ailments, including difficulties he
had using his thumbs.

During Drouin’s testimony, the ALJ noted

that there was insufficient medical opinion evidence in the
record regarding the effect of Drouin’s thumb impairment.

The

ALJ referred Drouin to an independent medical examiner and
continued the hearing.

When Drouin filed his complaint in this case, the local
rules of this district required the parties to file a Joint
Statement of Material Facts. The Acting Commissioner proposed
to Drouin a statement of material facts, but Drouin “entirely
disagree[s] with” it. Doc. no. 15 at 1. The facts provided in
this section are taken from the administrative record.
2

Drouin’s filings suggest that he believes his disability
onset date should have been deemed to be January 29, 2014, and
this discrepancy appears to be the main reason he did not agree
with the Acting Commissioner’s proposed Joint Statement of
Material Facts. Drouin’s application for Social Security
benefits lists his alleged onset date as March 31, 2014. See
Admin. Rec. at 558.
3

4

On January 12, 2017, Drouin appeared for a second hearing
before the ALJ.

Drouin, who was still represented by counsel at

that time, testified, as did an independent vocational expert.
On February 22, 2017, the ALJ issued an unfavorable
decision.

The ALJ found that Drouin had the residual functional

capacity to perform light work with certain restrictions.
Relying on the vocational expert’s testimony, the ALJ found at
Step Five that Drouin was capable of performing jobs that exist
in the national economy and, therefore, was not disabled.
Drouin requested review by the Appeals Council and
submitted additional evidence in support of his claims.

The

Appeals Council denied Drouin’s request for review on December
14, 2017, making the ALJ’s decision the Acting Commissioner’s
final decision.
B.

This action followed.

Discussion
Drouin, proceeding pro se, moves to reverse the Acting

Commissioner’s decision, but he does not point to any alleged
error by the ALJ.

In his motion, Drouin states:

1) I would like this court to reverse and remand this
case back to the ALJ Joshua Menard with all the
evidence and records in the transcript including all
the evidence after the ALJ made his unfavorable
decision and all records and evidence sent to the
Appeals Council after 2-22-2017. For reasons: Illegal
representation – W/C – SS
2) Discipline the attorneys who mis-represented me or
at least with W/C allow my hands to be covered.
5

Doc. no. 11 at 1.

Drouin’s addendum contains no allegations,

but merely asks the court to refer to certain pages in the
administrative record when ruling on his motion.

See doc. no.

14 at 1.
The addendum also includes a Citizen Complaint Report to
the United States Attorney’s Office, in which Drouin complains
about the Social Security Administration, an attorney,4 and
certain hospitals.

Id. at 3.

In his Complaint Report, Drouin

alleges that the Social Security Administration “was in bed
with” his workers compensation doctors and his lawyer, which is
why his claim was denied.5
The court is unable to discern from Drouin’s filings any
meaningful challenge to the Acting Commissioner’s decision.
Although Drouin is proceeding pro se, and thus “held to a less
stringent standard,” he is “not immune from [the] requirements”
of making “some effort at developed argumentation.”6

Watson v.

The attorney about whom Drouin complains is not the attorney
who represented him at his hearing before the ALJ.
4

Drouin has since submitted additional filings that contain
various mail delivery slips and package information. The
relevancy of these filings is unclear.
5

Importantly, Drouin was represented by counsel during the
ALJ hearing, and the record does not show that Drouin suffers
from a mental disability. Cf. Torres-Pagán v. Berryhill, 899
F.3d 54, 59-60 (1st Cir. 2018) (vacating district court’s
judgment and directing remand to the Commissioner where claimant
was unrepresented by counsel during the hearing before the ALJ,
6

6

Trans Union LLC, 223 F. App’x 5, 6 (1st Cir. 2007); see Lawton
v. Astrue, No. 11-cv-189-JD, 2012 WL 3019954, at *6 (D.N.H. July
24, 2012) (“When presented with an inadequate motion to reverse
the Commissioner’s decision, it is not the court’s job to create
and develop arguments to support the motion.”).

That principle

remains true in challenges to adverse decisions in social
security cases.

See Tarantino v. Astrue, No. CA 10-30004-MAP,

2011 WL 1540207, at *4 (D. Mass. Apr. 19, 2011) (“Plaintiff’s
failure to make any argument is reason enough to deny his motion
to reverse and, concomitantly, allow the Commissioner’s motion
to affirm.

This is so, even taking into account the leniency

the court extends to pro se litigants.” (internal citations
omitted)); see also Zapata v. Astrue, No. 11-CV-10882-RGS, 2011
WL 6834989, at *2 (D. Mass. Dec. 29, 2011) (granting
Commissioner’s motion to affirm where pro se claimant failed “to
point to any of the ALJ’s findings which are not supported by
substantial evidence or to articulate any perceived flaws in the
ALJ’s analysis of the medical records”).7

the claimant was undergoing psychiatric treatment, and the ALJ
effectively ignored mental-health treatment records).
The court has reviewed the pages of the Administrative
Record cited in Drouin’s addendum. They do not help clarify any
argument that Drouin may have intended to raise.
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For these reasons, the court denies Drouin’s motion to
reverse and grants the Acting Commissioner’s motion to affirm.8

CONCLUSION
For the foregoing reasons, the claimant’s motion to amend
(doc. no. 14) is granted, and his motion to reverse and remand
(doc. no. 11) is denied.

The Acting Commissioner’s motion to

affirm (doc. no. 18) is granted.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________
Landya B. McCafferty
United States District Judge
November 13, 2018
cc:

Scott Allan Drouin, pro se
Sarah E. Choi, Esq.
John J. Engel, Esq.

The court notes for the sake of completeness that, as
thoroughly argued by the Acting Commissioner, substantial
evidence supports the ALJ’s decision in any event.
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