Walsh v. Colvin
Filing
25
MEMORANDUM AND ORDER denying 15 Motion to Reverse Decision of the Commissioner; granting 19 Motion for an Order Affirming the Decision of the Commissioner; adopting 22 Report and Recommendations. So Ordered by Chief Judge William E. Smith on 1/9/2017. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
BRUCE PHILLIP WALSH,
)
)
Plaintiff,
)
)
v.
)
C.A. No. 15-495 S
)
CAROLYN W. COLVIN,
)
ACTING COMMISSIONER OF THE
)
SOCIAL SECURITY ADMINISTRATION
)
)
Defendant.
)
___________________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Magistrate
Recommendation
Judge
(“R&R”)
Lincoln
on
D.
Almond
August
19,
filed
2016
a
Report
(ECF
No.
and
22),
recommending that the Court deny Plaintiff’s Motion to Reverse
the Decision of the Commissioner (ECF No. 15) and grant the
Defendant’s Motion for an Order Affirming the Decision of the
Commissioner (ECF No. 19). After careful consideration of the
R&R and Plaintiff’s Objection (ECF No. 23), and pursuant to 28
U.S.C. § 636(b)(1), the Court ADOPTS the R&R.
I.
Procedural History
Bruce
Walsh
(“Plaintiff”)
filed
applications
Security Disability benefits and Supplemental
for
Social
Security Income
benefits. Those applications were denied on January 3, 2014.
(Administrative
R.
20,
ECF
No.
1
9-3.)
Plaintiff
requested
a
hearing, which occurred before Administrative Law Judge Martha
Bower (“ALJ”) in April 2015. The ALJ, after hearing argument
from Plaintiff’s counsel and testimony from several experts, and
after reviewing the documentary evidence, affirmed the denial of
Plaintiff’s benefits. (Id. at 20-21.) Plaintiff requested that
the Appeals Council review the ALJ’s decision, but that request
was denied. (Id. at 1.)
Plaintiff then filed a Complaint in this Court alleging
that
his
benefits
Plaintiff
filed
had
a
been
Motion
denied
to
in
Reverse
error.
the
(ECF
Decision
No.
1.)
of
the
Commissioner (ECF No. 15) and Defendant filed a Motion for an
Order to Affirm the Decision of the Commissioner (ECF No. 19).
Magistrate Judge Almond recommended denying Plaintiff’s Motion,
granting
Defendant’s
Motion,
and
entering
final
judgment
in
favor of Defendant. (ECF No. 22.)
Plaintiff has filed an Objection to the R&R. (ECF No. 23.)
Plaintiff argues that the ALJ’s determination was flawed in the
following three ways: the ALJ (1) failed to properly weigh the
medical opinion evidence; (2) failed to properly evaluate Mr.
Walsh’s credibility; and (3) relied on flawed vocational expert
testimony.
required
Additionally,
because
the
Plaintiff
Appeals
Council
argues
failed
that
to
remand
is
consider
new
material medical evidence. While these are the same arguments
Plaintiff made in his Motion to Reverse the Decision of the
2
Commissioner (ECF No. 15), Plaintiff argues that the R&R did not
properly address these four issues. In accordance with 28 U.S.C.
§ 636(b)(1), the Court considers Plaintiff’s Objection to the
R&R.
II. Plaintiff’s Objection regarding the ALJ’s Determination
A claimant with a disability is entitled to certain social
security benefits. “Disability” is defined as an “inability to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or has lasted or can be expected
to last for a continuous period of not less than 12 months.” 42
U.S.C.
§§
requires
416(i),
that
the
423(d)(1);
claimant’s
20
C.F.R.
residual
§
404.1505(a).
functional
This
capacity
is
such that he is unable to do “past relevant work . . . or any
other
substantial
gainful
work
that
exists
in
the
national
economy.” 20 C.F.R. § 404.1505(a).
The Social Security Commissioner has the responsibility to
determine
whether
405(b)(1).
The
a
claimant
is
Commissioner’s
disabled.
findings
See
are
42
U.S.C.
conclusive
§
if
supported by “substantial evidence.” 42 U.S.C. § 405(g). This
standard is met “if a reasonable mind, reviewing the evidence in
the record as a whole, could accept it as adequate to support
his conclusion.”
Irlanda Ortiz v. Sec’y of Health and
Human
Servs., 955 F.2d 765, 769 (1st Cir. 1991) (quoting Rodriguez v.
3
Sec’y of Health and Human Servs., 647 F.2d 218, 222 (1st Cir.
1981)).
Therefore,
where
the
Commissioner
has
come
to
a
reasonable conclusion, the Court must affirm even if the Court
might have come to a different conclusion in the first instance.
Rodriguez Pagan v. Sec'y of Health & Human Servs., 819 F.2d 1, 3
(1st Cir. 1987).
In
this
case,
the
ALJ
found
that
Plaintiff
was
not
disabled. The ALJ assessed the Plaintiff’s residual functional
capacity
and
determined
that,
while
Plaintiff
was
unable
to
perform his past relevant work, Plaintiff was able to do other
work. (Administrative R. 33, ECF No. 9-3.) Plaintiff argued in
his original Motion, and now argues in his Objection, that the
ALJ
failed
to
properly
weigh
the
medical
opinion
evidence,
failed to properly evaluate Plaintiff’s credibility, and relied
upon
flawed
vocational
expert
testimony.
Magistrate
Judge
Almond, after discussing the record and the applicable standards
of review, rejected all of these arguments and found that the
ALJ’s
determination
was
based
on
“substantial
evidence.”
The
Court agrees.
As to Plaintiff’s first objection, the Court agrees with
the R&R that the ALJ’s determination was based on “substantial
evidence.” The ALJ relied on several medical opinions in the
4
record1 and testimony from medical expert Dr. John Pella. (See,
e.g.,
Administrative
R.
27,
ECF
No.
9-3.)
Contrary
to
Plaintiff’s argument, and as is discussed in the R&R, the ALJ
was not required to give controlling weight to the findings of
Plaintiff’s
Deihl’s
treating
findings
medically
medical
were
not
acceptable
techniques”
and
expert
based
clinical
were
substantial evidence,”
also
on
(Dr.
Deihl)
because
“well-supported
and
laboratory
controverted
by
.
Dr.
.
.
diagnostic
other
“other
20 C.F.R. § 404.1527(c)(2)), including
information provided by Dr. Pella, Dr. Kay, and Dr. Hess.2 Nor
was the ALJ required to give more weight to the opinion of
Plaintiff’s treating Licensed Clinical Social Worker (“LCSW”).
The
ALJ
found
controlling
that
weight3
the
and
LCSW’s
was
opinion
contradicted
was
by
not
entitled
other
to
evidence,
1
This included medical opinions provided by two mental
health examiners, Dr. Kay and Dr. Hess (Exs. 22F, 29F, ECF No.
9-8) and a reviewing doctor, Dr. Landerman (Ex. 2A, ECF No. 94).
2
While Plaintiff argues that remand is necessary because
some of Dr. Deihl’s notes were illegible, this argument was made
for the first time in Plaintiff’s Objection and will therefore
not
be
considered.
Paterson-Leitch
Co.
v.
Massachusetts
Municipal Wholesale Electric Co., 840 F.2d 985, 990-91 (1st Cir.
1988) (holding that “an unsuccessful party is not entitled as of
right to de novo review by the judge of an argument never
seasonably raised before the magistrate”).
3
As Plaintiff concedes, the LCSW was not an “acceptable
medical source” under the Commissioner’s Regulations. (Obj. 8,
ECF No. 23.)
5
including
the
evaluations
of
Dr.
Kay
and
Dr.
Hess.
(Administrative R. 30, ECF No. 9-3.)
Plaintiff next argues that the ALJ provided no explanation
for his finding that the Plaintiff’s statements concerning the
“intensity,
symptoms
persistence
are
“not
and
limiting
entirely
effects”
credible.”
(Obj.
of
10,
Plaintiff’s
ECF
No.
23
(quoting Administrative R. 27, ECF No. 9-3).) The Court agrees
with the R&R that this merits little discussion. (R&R 19 n.5,
ECF No. 22.) Plaintiff conveniently neglects to include the end
of the ALJ’s sentence in which the ALJ makes clear that the
Plaintiff’s
credible
description
for
the
(Administrative R.
of
his
reasons
symptoms
explained
is
in
“not
this
entirely
decision.”
27, ECF No. 9-3).) The ALJ then provides
several pages of explanation, citing various facts in the record
and opinions from medical experts, to come to the conclusion
that “the record as a whole demonstrates . . . that [Plaintiff]
is
not
as
functionally
Plaintiff’s
argument
impaired
that
as
the
ALJ
alleged.”
did
not
(Id.
at
31.)
explain
her
determination is simply untrue.
Lastly,
Plaintiff
testimony
of
a
testified
that
challenges
vocational
Plaintiff
the
expert.
“would
be
ALJ’s
The
reliance
vocational
able
to
on
the
expert
perform
the
requirements of representative occupations” and included a list
of
examples.
(Administrative
R.
6
33,
ECF
No.
9-3.)
Plaintiff
argues that the ALJ, in accepting this expert testimony, failed
to address an “apparent conflict” between the listed occupations
(as defined in the Dictionary of Occupational Titles (“DOT”))
and
the
Plaintiff’s
Plaintiff
argues
identified
that
his
limitations.
inability
to
Specifically,
conduct
“frequent
reaching” and his need for a “sit/stand option” are incompatible
with the occupations listed by the vocational expert. (Obj. 12,
ECF No. 23.)
As was explained in the R&R, Plaintiff’s argument lacks
merit
for
conflicts
two
that
reasons.
have
First,
been
the
ALJ
“identified.”
need
See,
only
e.g.,
address
Senay
v.
Astrue, No. C.A. 06-548S, 2009 WL 229953, at *11 (D.R.I. Jan.
30, 2009) (quoting Donahue v. Barnhart, 279 F.3d 441, 446 (7th
Cir. 2002)). In this case, the ALJ specifically “determined that
the
vocational
expert’s
testimony
is
consistent
with
the
information contained in the [DOT].” (Administrative R. 33, ECF
No
9-3.)
In
addition,
Plaintiff’s
attorney
questioned
the
vocational expert and never asked about any potential conflict
with the DOT. (See Administrative R. 78-80, ECF No. 9-3.) Since
the alleged conflict was not “identified” at the hearing, the
Plaintiff cannot raise it now. Senay, 2009 WL 229953, at *11
(quoting
Donahue,
279
F.3d
at
446
(“The
ruling
requires
an
explanation only if the discrepancy was ‘identified’—that is, if
the claimant (or the ALJ on his behalf) noticed the conflict and
7
asked for substantiation. Raising a discrepancy only after the
hearing, as [the claimant's] lawyer did, is too late.”)).
Moreover,
between
the
the
Court
vocational
finds
no
expert’s
discrepancy
testimony
and
in
this
case
the
DOT.
With
regards to Plaintiff’s potential need for a “sit/stand option,”
the ALJ listed no such limitation for Plaintiff and, regardless,
the
vocational
expert
testified
that
several
of
the
listed
occupations offer a “sit/stand option.” (Administrative R. 8081, ECF No. 9-3.) There is also no conflict between Plaintiff’s
limitations
“frequent
the
reaching.”
Plaintiff’s
limitations
extremity
and
left,
on
was
identified
While
non-dominant,
movement,
not
the
occupations
ALJ
upper
Plaintiff’s
mentioned
as
did
having
that
determine
extremity
right,
any
require
had
dominant,
such
that
some
upper
limitations.
(Administrative R. 25, ECF No. 9-3.)
III.
Plaintiff’s Objection regarding the Appeals Council’s
Denial of Review
Plaintiff argues that the Appeals Council erred by refusing
to
remand
the
case
based
on
new
evidence.
Plaintiff
sought
review by the Appeals Council and submitted a one-page letter
from Dr. Diehl. (Administrative Record
8, ECF No. 9-3.)
The
Appeals Council declined to remand the case, basing its decision
in part on the fact that Dr. Diehl’s letter (dated July 8, 2015)
addressed Plaintiff’s condition in the period after the ALJ had
8
already made a determination (which occurred on April 24, 2015).
(Id. at 2.) Plaintiff argues that, because Dr. Diehl’s letter
directly addresses some of the concerns raised in the ALJ’s
report, the Appeals Council’s “finding that Dr. Diehl’s opinions
do not relate to . . . the period at issue . . . is based on a
mistake of fact . . . warrant[ing] remand.” (Obj. 13, ECF No.
23.)
The Court reviews decisions of the Appeals Council decision
“to the extent that it rests on an explicit mistake of law or
other egregious error.” Mills v. Apfel, 244 F.3d 1, 5 (1st Cir.
2001). The Court agrees with the R&R’s finding that there was no
“egregious error” in this case. While Dr. Deihl’s letter does
address the ALJ’s decision, the bulk of the new information in
the
letter
is
ambiguous
regarding
timing.
Much
of
the
information is written in the present tense4, thereby suggesting
that Dr. Deihl is referring to Plaintiff’s condition as of the
date of the letter (July 8, 2015) as opposed to Plaintiff’s
condition during the relevant time period (pre-April 24, 2015).
As such, the Appeals Council’s reading of Dr. Deihl’s letter
cannot be described as an “egregious error” warranting remand.
4
For example, Dr. Deihl discusses how Plaintiff “is working
hard” and “is at risk of losing control,” as well as how
Plaintiff’s wife “feels” and how “[s]he no longer can help him.”
(Administrative R. 8, ECF No. 9-3.)
9
IV.
Conclusion
For the foregoing reasons, the R&R is ADOPTED, Plaintiff’s
Motion to Reverse the Decision of the Commissioner (ECF No. 15)
is DENIED, and Defendant’s Motion for an Order Affirming the
Decision of the Commissioner (ECF No. 19) is GRANTED. Judgment
will enter for Defendant.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: January 9, 2017
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