Thomas P. v. Saul

Filing 21

REPORT AND RECOMMENDATIONS recommending that Plaintiff's Motion to Reverse (ECF No. 16) be DENIED and that the Commissioner's Motion to Affirm (ECF No. 19) be GRANTED. Further recommending that Final Judgment enter in favor of Defendant. 19 MOTION to Affirm the Decision of the Commissioner filed by Kilolo Kijakazi. 16 First MOTION to Remand the Decision of the Commissioner WITH SUPPORTING MEMO filed by Thomas Joseph Perry, Jr. Objections to R&R due by 1/24/2022. So Ordered by Magistrate Judge Lincoln D. Almond on 1/10/2022. (Noel, Jeannine)

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Case 1:21-cv-00020-WES-LDA Document 21 Filed 01/10/22 Page 1 of 15 PageID #: 1273   UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND THOMAS P. v. KILOLO KIJAKAZI, Commissioner Social Security Administration : : : : : : C.A. No. 21-00020-WES REPORT AND RECOMMENDATION Lincoln D. Almond, United States Magistrate Judge This matter is before the Court for judicial review of a final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying Disability Insurance Benefits (“DIB”) under the Social Security Act (the “Act”), 42 U.S.C. § 405(g). Plaintiff filed his Complaint on January 12, 2021 seeking to reverse the Decision of the Commissioner. On September 24, 2021, Plaintiff filed a Motion to Reverse with a Remand for a Rehearing of the Commissioner’s Final Decision. (ECF No. 16). On December 23, 2021, Defendant filed a Motion to Affirm the Acting Commissioner’s Decision. (ECF No. 19). No Reply Brief was filed. This matter has been referred to me for preliminary review, findings, and recommended disposition. 28 U.S.C. § 636(b)(1)(B); LR Cv 72. Based upon my review of the record, the parties’ submissions, and independent research, I find that there is substantial evidence in this record to support the Commissioner’s decision and findings that Plaintiff is not disabled within the meaning of the Act. Consequently, I recommend that Plaintiff’s Motion to Reverse (ECF No. 16) be DENIED and that the Commissioner’s Motion to Affirm (ECF No. 19) be GRANTED. I. PROCEDURAL HISTORY Plaintiff filed an application for DIB on November 5, 2019 (Tr. 214-215) alleging disability since April 18, 2011. His date last insured for DIB is June 30, 2014. (Tr. 18). The application was   Case 1:21-cv-00020-WES-LDA Document 21 Filed 01/10/22 Page 2 of 15 PageID #: 1274 denied initially on November 19, 2019 (Tr. 117-124) and on reconsideration on January 2, 2020. (Tr. 126-132). On January 10, 2020, Plaintiff requested an Administrative Hearing. (Tr. 147). On June 12, 2020, a hearing was held before Administrative Law Judge Paul Goodale (the “ALJ”) at which time Plaintiff, represented by counsel, and a Vocational Expert (“VE”) appeared and testified. (Tr. 34103). The ALJ issued an unfavorable decision to Plaintiff on September 2, 2020. (Tr. 12-28). The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision on November 9, 2020. (Tr. 1-3). Therefore, the ALJ’s decision became final, and this timely appeal follows. II. THE PARTIES’ POSITIONS Plaintiff argues that the ALJ erred by failing to reopen his prior denied claims and by failing to consider all the objective medical evidence and medical opinions. The Commissioner disputes Plaintiff’s claims and contends that the ALJ constructively reopened Plaintiff’s prior denied claims and that substantial evidence supports the ALJ’s finding that Plaintiff was not disabled during the relevant period, i.e., April 8, 2011 through June 30, 2014. III. THE STANDARD OF REVIEW The Commissioner’s findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla – i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Ortiz v. Sec’y of HHS, 955 F.2d 765, 769 (1st Cir. 1991) (per curiam); Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st Cir. 1981). Where the Commissioner’s decision is supported by substantial evidence, the court must affirm, even if the court would have reached a contrary result as finder of fact. Rodriguez Pagan v. Sec’y of HHS, 819 F.2d 1, 3 (1st Cir. 1987); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The court must view the evidence as a whole, taking into account evidence favorable as well as ‐2- Case 1:21-cv-00020-WES-LDA Document 21 Filed 01/10/22 Page 3 of 15 PageID #: 1275 unfavorable to the decision. Frustaglia v. Sec’y of HHS, 829 F.2d 192, 195 (1st Cir. 1987); Parker v. Bowen, 793 F.2d 1177 (11th Cir. 1986) (court also must consider evidence detracting from evidence on which Commissioner relied). The court must reverse the ALJ’s decision on plenary review, however, if the ALJ applies incorrect law, or if the ALJ fails to provide the court with sufficient reasoning to determine that he or she properly applied the law. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam); accord Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). Remand is unnecessary where all of the essential evidence was before the Appeals Council when it denied review, and the evidence establishes without any doubt that the claimant was disabled. Seavey v. Barnhart, 276 F.3d 1, 11 (1st Cir. 2001) citing, Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985). The court may remand a case to the Commissioner for a rehearing under sentence four of 42 U.S.C. § 405(g); under sentence six of 42 U.S.C. § 405(g); or under both sentences. Seavey, 276 F.3d at 8. To remand under sentence four, the court must either find that the Commissioner’s decision is not supported by substantial evidence, or that the Commissioner incorrectly applied the law relevant to the disability claim. Id.; accord Brenem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980) (remand appropriate where record was insufficient to affirm, but also was insufficient for district court to find claimant disabled). Where the court cannot discern the basis for the Commissioner’s decision, a sentence-four remand may be appropriate to allow her to explain the basis for her decision. Freeman v. Barnhart, 274 F.3d 606, 609-610 (1st Cir. 2001). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. Diorio v. Heckler, 721 F.2d 726, 729 (11th Cir. 1983) (necessary for ALJ on remand to consider psychiatric report tendered to Appeals Council). After a sentence four remand, the court enters a final and appealable judgment immediately, and thus loses jurisdiction. Freeman, 274 F.3d at 610. ‐3- Case 1:21-cv-00020-WES-LDA Document 21 Filed 01/10/22 Page 4 of 15 PageID #: 1276 In contrast, sentence six of 42 U.S.C. § 405(g) provides: The court...may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding; 42 U.S.C. § 405(g). To remand under sentence six, the claimant must establish: (1) that there is new, non-cumulative evidence; (2) that the evidence is material, relevant and probative so that there is a reasonable possibility that it would change the administrative result; and (3) there is good cause for failure to submit the evidence at the administrative level. See Jackson v. Chater, 99 F.3d 1086, 10901092 (11th Cir. 1996). A sentence six remand may be warranted, even in the absence of an error by the Commissioner, if new, material evidence becomes available to the claimant. Id. With a sentence six remand, the parties must return to the court after remand to file modified findings of fact. Id. The court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. Id. The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(i), 423(d)(1); 20 C.F.R. § 404.1505. The impairment must be severe, making the claimant unable to do her previous work, or any other substantial gainful activity which exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511. A. Opinion Evidence For applications like this one, filed on or after March 27, 2017, the Administration has fundamentally changed how adjudicators assess opinion evidence. The requirements that adjudicators assign “controlling weight” to a well-supported treating source’s medical opinion that is consistent ‐4- Case 1:21-cv-00020-WES-LDA Document 21 Filed 01/10/22 Page 5 of 15 PageID #: 1277 with other evidence, and, if controlling weight is not given, must state the specific weight that is assigned – are gone. See Shaw v. Saul, No. 19-cv-730-LM, 2020 WL 3072072, *4-5 (D.N.H. June 10, 2020) citing Nicole C. v. Saul, Case No. cv 19-127JJM, 2020 WL 57727, at *4 (D.R.I. Jan. 6, 2020) (citing 20 C.F.R. § 404.1520c(a)). Under the newly applicable regulations, an ALJ does not assign specific evidentiary weight to any medical opinion and does not defer to the opinion of any medical source (including the claimant’s treating providers). 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, the ALJ evaluates the relative persuasiveness of the medical evidence in terms of five specified factors. Id. The five factors the ALJ considers in evaluating the persuasiveness of a medical opinion are supportability (the relevance of the opinion’s cited objective medical evidence), consistency (how consistent the opinion is with all of the evidence from medical and non-medical sources), treatment/examining relationship (including length of treatment relationship, frequency of examinations, purpose of treatment relationship, and existence and extent of treatment/examining relationship), specialization (the relevance of the source’s specialized education or training to the claimant’s condition), and what the Administration refers to as “other factors” (the medical source’s familiarity with the claimant’s medical record as a whole and/or with the Administration’s policies or evidentiary requirements). Shaw, 2020 WL 3072072 at *4 citing 20 C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5) (emphasis supplied). Of the five factors, the “most important” are supportability and consistency. Id. §§ 404.1520c(a), 404.1520c(b)(2), 416.920c(a), 416.920c(b)(2). While the ALJ must consider all five of the factors in evaluating the persuasiveness of medical evidence, when preparing the written decision the ALJ is, in most cases, only required to discuss application of the supportability and consistency factors. Id. §§ 404.1520c(b)(2), 416.920c(b)(2). Only where contrary medical opinions are equally persuasive in terms of both supportability and consistency is the ALJ required to discuss their relative persuasiveness in terms of the ‐5- Case 1:21-cv-00020-WES-LDA Document 21 Filed 01/10/22 Page 6 of 15 PageID #: 1278 treatment/examining relationship, specialization, and other factors. Id. §§ 404.1520c(b)(3), 416.920c(b)(3). In addition, where a single medical source offers multiple opinions, the ALJ is not required to discuss each opinion individually, but instead may address all of the source’s opinions “together in a single analysis.” Id. §§ 404.1520c(b)(1), 416.920c(b)(1). Moreover, while the ALJ must consider all of the relevant evidence in the record, id. §§ 404.1520b(a)-(b), 416.920b(a)-(b), the ALJ need not discuss evidence from nonmedical sources, including, e.g., the claimant, the claimant’s friends and family, educational personnel, and social welfare agency personnel. Id. §§ 404.1502(e), 404.1520c(d), 416.902(j), 416.920c(d). And while the regulations require the ALJ to discuss the relative persuasiveness of all medical source evidence, id. §§ 404.1520c(b), 416.920c(b), the claimant’s impairments must be established specifically by evidence from an acceptable medical source, id. §§ 404.1521, 416.921. “Acceptable medical sources” are limited to physicians and psychologists, and (within their areas of specialization or practice) to optometrists, podiatrists, audiologists, advanced practice registered nurses, physician assistants, and speech pathologists. Id. §§ 404.1502(a), 416.902(a). Evidence from other medical sources, such as licensed social workers or chiropractors, is insufficient to establish the existence or severity of a claimant’s impairments. Id. Finally, the ALJ need not discuss evidence that is “inherently neither valuable nor persuasive,” including decisions by other governmental agencies or nongovernmental entities, findings made by state disability examiners at any previous level of adjudication, and statements by medical sources as to any issue reserved to the Commissioner. Id. §§ 404.1520b(c), 416.920b(c). B. Developing the Record The ALJ has a duty to fully and fairly develop the record. Heggarty v. Sullivan, 947 F.2d 990, 997 (1st Cir. 1991). The Commissioner also has a duty to notify a claimant of the statutory right to retained counsel at the social security hearing, and to solicit a knowing and voluntary waiver of that ‐6- Case 1:21-cv-00020-WES-LDA Document 21 Filed 01/10/22 Page 7 of 15 PageID #: 1279 right if counsel is not retained. See 42 U.S.C. § 406; Evangelista v. Sec’y of HHS, 826 F.2d 136, 142 (1st Cir. 1987). The obligation to fully and fairly develop the record exists if a claimant has waived the right to retained counsel, and even if the claimant is represented by counsel. Id. However, where an unrepresented claimant has not waived the right to retained counsel, the ALJ’s obligation to develop a full and fair record rises to a special duty. See Heggarty, 947 F.2d at 997, citing Currier v. Sec’y of Health Educ. and Welfare, 612 F.2d 594, 598 (1st Cir. 1980). C. Medical Tests and Examinations The ALJ is required to order additional medical tests and exams only when a claimant’s medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 416.917; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). In fulfilling his duty to conduct a full and fair inquiry, the ALJ is not required to order a consultative examination unless the record establishes that such an examination is necessary to enable the ALJ to render an informed decision. Carrillo Marin v. Sec’y of HHS, 758 F.2d 14, 17 (1st Cir. 1985). D. The Five-step Evaluation The ALJ must follow five steps in evaluating a claim of disability. See 20 C.F.R. §§ 404.1520, 416.920. First, if a claimant is working at a substantial gainful activity, she is not disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant does not have any impairment or combination of impairments which significantly limit her physical or mental ability to do basic work activities, then she does not have a severe impairment and is not disabled. 20 C.F.R. § 404.1520(c). Third, if a claimant’s impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, she is disabled. 20 C.F.R. § 404.1520(d). Fourth, if a claimant’s impairments do not prevent her from doing past relevant work, she is not disabled. 20 C.F.R. § 404.1520(e). Fifth, if a claimant’s impairments (considering her residual functional capacity, age, education, and past work) prevent her from doing ‐7- Case 1:21-cv-00020-WES-LDA Document 21 Filed 01/10/22 Page 8 of 15 PageID #: 1280 other work that exists in the national economy, then she is disabled. 20 C.F.R. § 404.1520(f). Significantly, the claimant bears the burden of proof at steps one through four, but the Commissioner bears the burden at step five. Wells v. Barnhart, 267 F. Supp. 2d 138, 144 (D. Mass. 2003) (five-step process applies to both SSDI and SSI claims). In determining whether a claimant’s physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant’s impairments and must consider any medically severe combination of impairments throughout the disability determination process. 42 U.S.C. § 423(d)(2)(B). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993). The claimant bears the ultimate burden of proving the existence of a disability as defined by the Social Security Act. Seavey, 276 F.3d at 5. The claimant must prove disability on or before the last day of her insured status for the purposes of disability benefits. Deblois v. Sec’y of HHS, 686 F.2d 76 (1st Cir. 1982), 42 U.S.C. §§ 416(i)(3), 423(a), (c). If a claimant becomes disabled after she has lost insured status, her claim for disability benefits must be denied despite her disability. Id. E. Other Work Once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. Seavey, 276 F.3d at 5. In determining whether the Commissioner has met this burden, the ALJ must develop a full record regarding the vocational opportunities available to a claimant. Allen v. Sullivan, 880 F.2d 1200, 1201 (11th Cir. 1989). This burden may sometimes be met through exclusive reliance on the Medical-Vocational Guidelines (the “grids”). Seavey, 276 F.3d at 5. Exclusive reliance on the “grids” is appropriate where the claimant suffers primarily from an exertional impairment, without significant non-exertional factors. Id.; see also Heckler v. Campbell, 461 U.S. ‐8- Case 1:21-cv-00020-WES-LDA Document 21 Filed 01/10/22 Page 9 of 15 PageID #: 1281 458 (1983) (exclusive reliance on the grids is appropriate in cases involving only exertional impairments, impairments which place limits on an individual’s ability to meet job strength requirements). Exclusive reliance is not appropriate when a claimant is unable to perform a full range of work at a given residual functional level or when a claimant has a non-exertional impairment that significantly limits basic work skills. Nguyen, 172 F.3d at 36. In almost all of such cases, the Commissioner’s burden can be met only through the use of a vocational expert. Heggarty, 947 F.2d at 996. It is only when the claimant can clearly do unlimited types of work at a given residual functional level that it is unnecessary to call a vocational expert to establish whether the claimant can perform work which exists in the national economy. See Ferguson v. Schweiker, 641 F.2d 243, 248 (5th Cir. 1981). In any event, the ALJ must make a specific finding as to whether the non-exertional limitations are severe enough to preclude a wide range of employment at the given work capacity level indicated by the exertional limitations. 1. Pain “Pain can constitute a significant non-exertional impairment.” Nguyen, 172 F.3d at 36. Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment which could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). The ALJ must consider all of a claimant’s statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence. SSR 16-3p, 2017 WL 4790249, at *49462; 20 C.F.R. § 404.1529(c)(3). In determining whether the medical signs and laboratory findings show medical impairments which reasonably could be expected to produce the pain alleged, the ALJ must apply the First Circuit’s six-part pain analysis and consider the following factors: ‐9- Case 1:21-cv-00020-WES-LDA Document 21 Filed 01/10/22 Page 10 of 15 PageID #: 1282 (1) The nature, location, onset, duration, frequency, radiation, and intensity of any pain; (2) Precipitating and aggravating factors (e.g., movement, activity, environmental conditions); (3) Type, dosage, effectiveness, and adverse side-effects of any pain medication; (4) Treatment, other than medication, for relief of pain; (5) Functional restrictions; and (6) The claimant’s daily activities. Avery v. Sec’y of HHS, 797 F.2d 19, 29 (1st Cir. 1986). An individual’s statement as to pain is not, by itself, conclusive of disability. 42 U.S.C. § 423(d)(5)(A). However, the individual’s statements about the intensity, persistence, and limited effects of symptoms may not be disregarded “solely because the objective medical evidence does not substantiate the degree of impairment-related symptoms.” SSR 16-3p, 2017 WL 4790249, at *49465. 2. Credibility Where an ALJ decides not to credit a claimant’s testimony about pain, the ALJ must articulate specific and adequate reasons for doing so, or the record must be obvious as to the credibility finding. Rohrberg, 26 F. Supp. 2d at 309. A reviewing court will not disturb a clearly articulated credibility finding with substantial supporting evidence in the record. See Frustaglia, 829 F.2d at 195. The failure to articulate the reasons for discrediting subjective pain testimony requires that the testimony be accepted as true. See DaRosa v. Sec’y of Health and Human Servs., 803 F.2d 24 (1st Cir. 1986). A lack of a sufficiently explicit credibility finding becomes a ground for remand when credibility is critical to the outcome of the case. See Smallwood v. Schweiker, 681 F.2d 1349, 1352 (11th Cir. 1982). If proof of disability is based on subjective evidence and a credibility determination is, therefore, critical to the decision, “the ALJ must either explicitly discredit such testimony or the implication must be so clear as to amount to a specific credibility finding.” Foote v. Chater, 67 F.3d ‐10- Case 1:21-cv-00020-WES-LDA Document 21 Filed 01/10/22 Page 11 of 15 PageID #: 1283 1553, 1562 (11th Cir. 1995) (quoting Tieniber v. Heckler, 720 F.2d 1251, 1255 (11th Cir. 1983)). Guidance in evaluating the claimant’s statements regarding the intensity, persistence, and limiting effects of subjective symptoms is provided by SSR 16-3p, 2017 WL 4790249, at *49462 (Oct. 25, 2017). It directs the ALJ to consider the entire case record, including the objective medical evidence; an individual’s statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; any other relevant evidence; and whether statements about the intensity, persistence, and limiting effects of symptoms are consistent with the medical signs and laboratory findings. SSR 16-3p, 2017 WL 4790249, at *49465.  V. APPLICATION AND ANALYSIS A. The Commissioner’s Decision By way of background, Plaintiff is currently fifty years old. This is a DIB case, and Plaintiff was forty-two years old when his insured status for DIB expired on June 30, 2014. He is a veteran who served from 1990 to 1993, and he currently receives VA service-connected disability benefits. He worked as a construction equipment mechanic until April 2011 which he alleges to be his disability onset date. He alleges that he is “disabled primarily by his physical impairments.” (ECF No. 16-1 at p. 17). This is Plaintiff’s third attempt to obtain Social Security disability benefits for the period dating back to April 2011. His first DIB application was filed on May 18, 2011 and denied on January 31, 2012 with no appeal taken. (Tr. 15, n. 1). His second application was filed on January 21, 2016 (Tr. 115) and denied on March 31, 2016 with no appeal taken. (Tr. 133). His third application was filed in 2019 and resulted in the instant appeal. The ALJ decided this case adverse to Plaintiff at Step 5. At Step 2, the ALJ found that Plaintiff’s back impairments, neuropathy, depression, anxiety, and substance abuse disorder were ‐11- Case 1:21-cv-00020-WES-LDA Document 21 Filed 01/10/22 Page 12 of 15 PageID #: 1284 “severe” impairments within the meaning of the applicable regulations. He assessed an RFC for a significantly limited range of light work. Based on this RFC and testimony from the VE, the ALJ concluded at Step 4 that Plaintiff could not perform his past relevant work as a mechanic. However, at Step 5, he found that Plaintiff was not disabled during the relevant period because he was capable of performing other unskilled light and sedentary jobs available in the economy. B. The Request to Reopen Plaintiff argues that the ALJ committed reversible error by denying his request to reopen the prior adjudicated claims. However, at the same time, he asserts that, “[b]y reconsidering the record evidence, gnashing it about and finding a different RFC, the ALJ reconsidered the prior claim on its merits and constructively reopened it.” (ECF No. 16-1 at p. 8). By this statement, Plaintiff effectively concedes that his claim of error was mooted by the constructive reopening. Since the 2019 application concerns the same closed period of disability as the prior denied claims, the ALJ could have denied Plaintiff’s request for a hearing based on administrative res judicata grounds. See 20 C.F.R. § 404.957(c)(1). However, he did not do that. Rather, the ALJ held a full administrative hearing and issued a decision on the merits that Plaintiff was not disabled for the entire relevant period. The record is clear that the ALJ constructively reopened the prior claims. See Morey v. Colvin, C.A. No. 14-433M, 2015 WL 9855873 at *12 (D.R.I. Oct. 5, 2015). Thus, any claimed error in this regard is harmless. C. The ALJ’s Review of the Record Plaintiff argues that the ALJ erred by failing to properly consider objective medical evidence supporting his allegations of disabling pain including specifically a June 22, 2012 CT scan of his back. He also argues that the ALJ erred by failing to properly consider a Compensation and Pension (“C&P”) examination conducted by the VA on July 30, 2013. Plaintiff also argues that “[w]hen determining a veteran’s eligibility for Social Security disability benefits, a tie or even a close call should go to the ‐12- Case 1:21-cv-00020-WES-LDA Document 21 Filed 01/10/22 Page 13 of 15 PageID #: 1285 veteran.” (ECF No. 16-1 at p. 18). While I agree that veterans are owed a debt of gratitude for their service, Plaintiff provides no legal authority for this proposed “tie goes to the veteran” standard of review. Accordingly, the Court is compelled by the law and will apply the statutory “substantial evidence” standard of review to the ALJ’s Decision. See 42 U.S.C. § 405(g). First, as to the June 2012 CT scan (Tr. 975-976), it is true that the ALJ does not specifically discuss this particular piece of evidence in his Decision. However, it was reviewed and discussed by Dr. Mahoney and Dr. Purins in 2019 and both opined, based on a review of that CT scan and other medical evidence of record, that Plaintiff could perform light work with additional physical limitations. (Tr. 121-123, 130-131). The ALJ adopted those same basic limitations in his RFC finding. (Tr. 21). Accordingly, the ALJ’s failure to explicitly discuss the CT scan is harmless since it was considered by the State agency physicians in formulating their RFC opinions and constitutes substantial evidence supporting the ALJ’s contested RFC finding. See Vanessa C. v. Kijakazi, C.A. No. 20-363MSM, 2021 WL 3930347 at *6 (D.R.I. Sept. 2, 2021) (“[T]he ALJ’s omission from his decision of bipolar and panic disorder is harmless because the state-agency psychologists did not overlook those diagnoses in formulating their PRT opinions.”). Second and similarly, as to the July 2013 C&P examination performed by Nurse Practitioner Oseghale (Tr. 627-647), that examination report was reviewed by the State agency physicians in formulating the RFC opinions discussed above. (Tr. 123). Thus, any error by the ALJ in specifically discussing this report is also harmless. Additionally, Dr. Purins considered the medical record as of December of 2019, including this report, and his subsequent RFC opinion actually found Plaintiff to be somewhat less limited by his physical impairments than Dr. Mahoney and the ALJ had. (Tr. 130131). Again, the ALJ had ample record support for his RFC finding. Moreover, there is nothing in Mr. Oseghale’s report which directly contradicts the ALJ’s RFC finding. He stated that Plaintiff’s impairments would limit “prolonged sitting, standing, walking, repetitive bending, and lifting and carrying.” (Tr. 636, 646). Those observations are actually consistent with the ALJ’s RFC assessment ‐13- Case 1:21-cv-00020-WES-LDA Document 21 Filed 01/10/22 Page 14 of 15 PageID #: 1286 that Plaintiff was limited to a range of light work and restricted in all of those functional areas. (Tr. 20-21). Plaintiff argues that Mr. Oseghale’s report belies the ALJ’s statements that Plaintiff had failed to provide a “precise functional assessment, completed by a physician to support [his] subjective physical complaints or to contradict the findings of the State agency physician.” (Tr. 24). However, it is undisputed that Mr. Oseghale is a Nurse Practitioner and not a physician. And, more to the point, the report provides general and not “precise” functional limitations and simply does not directly contradict either the RFC findings of either the State agency physicians or the ALJ. Ultimately, Plaintiff’s challenge to the ALJ’s evaluation of the record in this case inappropriately asks this Court to reweigh the evidence in a manner more favorable to him. See, e.g., Seavey v. Barnhart, 276 F.3d 1, 10 (1st Cir. 2001) (the ALJ is responsible for weighing the evidence and resolving conflicts). “The ALJ’s resolution of evidentiary conflicts must be upheld if supported by substantial evidence, even if contrary results might have been tenable also.” Benetti v. Barnhart, 193 Fed. Appx. 6, 2006 WL 255972 (1st Cir. Sept. 6, 2006) (per curiam) (citing Rodriguez Pagan v. Sec’y of HHS, 819 F.2d 1 (1st Cir. 1987)). In other words, the issue presented is not whether this Court would have rendered a disability finding reviewing this record de novo but rather whether the record contains substantial evidence sufficient to support the ALJ’s findings. Since Plaintiff has shown no error in the ALJ’s evaluation of the medical evidence or in his ultimate findings, and those findings are adequately supported by the record, the ALJ’s decision must be affirmed. CONCLUSION For the reasons discussed herein, I recommend that Plaintiff’s Motion to Reverse (ECF No. 16) be DENIED and that the Commissioner’s Motion to Affirm (ECF No. 19) be GRANTED. I further recommend that Final Judgment enter in favor of Defendant. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of the Court within fourteen days of its receipt. See Fed. R. Civ. P. 72(b); LR Cv 72. Failure to ‐14- Case 1:21-cv-00020-WES-LDA Document 21 Filed 01/10/22 Page 15 of 15 PageID #: 1287 file specific objections in a timely manner constitutes waiver of the right to review by the District Court and the right to appeal the District Court’s decision. See United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980). /s/ Lincoln D. Almond LINCOLN D. ALMOND United States Magistrate Judge January 10, 2022 ‐15-

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