JOHN H. RICH, III, Magistrate Judge.
This Social Security Disability ("SSD") appeal raises the question of whether the administrative law judge ("ALJ") supportably found the plaintiff capable of performing work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that the ALJ (i) erroneously evaluated the opinion evidence of record, (ii) erroneously evaluated her testimony regarding her symptoms and limitations, and (iii) failed to obtain medical expert testimony pursuant to Social Security Ruling 83-20 ("SSR 83-20"). See Itemized Statement of Specific Errors ("Statement of Errors") (ECF No. 16) at 1. I find no error and, accordingly, recommend that the court affirm the commissioner's decision.
Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 404.1520; Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the ALJ found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act through December 31, 2009, Finding 1, Record at 19; that, through her date last insured ("DLI"), she had the severe impairments of scoliosis and sciatica, Finding 3, id. at 20; that, through her DLI, she had the residual functional capacity ("RFC") to perform light work as defined in 20 C.F.R. § 404.1567(b), with additional limitations not relevant here, Finding 5, id. at 22; that, through her DLI, considering her age (50 years old, defined as an individual closely approaching advanced age, on her DLI), education (at least high school), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that she could have performed, Findings 7-10, id. at 25-26; and that she, therefore, had not been disabled at any time from June 2, 2008, her alleged onset date of disability, through her DLI, December 31, 2009, Finding 11, id. at 27. The Appeals Council declined to review the decision, id. at 1-3, making the ALJ's decision the final determination of the commissioner, 20 C.F.R. § 404.981; Dupuis v. Sec'y of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).
The standard of review of the commissioner's decision is whether the determination made is supported by substantial evidence. 42 U.S.C. § 405(g); Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
The ALJ reached Step 5 of the sequential evaluation process, at which stage the burden of proof shifts to the commissioner to show that a claimant can perform work other than her past relevant work. 20 C.F.R. § 404.1520(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the commissioner's findings regarding the plaintiff's RFC to perform such other work. Rosado v. Sec'y of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).
The plaintiff first takes issue with the ALJ's assignment of little weight to the opinions of two treating physicians, Markos Poulopoulos, M.D., and Stratton John Shannon, D.O. See Statement of Errors at 5-8. As the plaintiff observes, see id. at 5, an ALJ must supply "good reasons" for the weight given to the opinion of a treating source, 20 C.F.R. § 404.1527(c)(2). She contends that the ALJ failed to do so here because his findings regarding both the Poulopoulos and Shannon opinions were erroneous and unsupported by substantial evidence. See Statement of Errors at 5. The commissioner counters that the ALJ supplied the requisite good reasons, supported by substantial evidence, for his assignment of little weight to both. See Defendant's Opposition to Plaintiff's Statement of Errors ("Opposition") (ECF No. 18) at 2-7. I agree.
The ALJ acknowledged that Dr. Poulopoulos, a neurologist who diagnosed the plaintiff with cerebellar ataxia in 2015, expressed the opinion in a May 2, 2016, letter that, although "[i]t has not been determined to be exact, . . . [the plaintiff] has probably more than a 10 year history of progressive ataxia." Record at 20, 920. However, the ALJ gave that opinion little weight, determining that the plaintiff did not have a medically determinable impairment of cerebellar ataxia prior to her DLI of December 31, 2009. See id. at 20.
The ALJ supplied two reasons for assigning little weight to the Poulopoulos opinion: that it was "based at least in part on the subjective reporting" of the plaintiff, which he deemed unreliable and, hence, could not credit, and that "there [was] no corroborating evidence in the contemporaneous medical records" that she was falling on a regular basis prior to her DLI. Id. at 20-21. On the first point, he elaborated:
Id. (citations omitted).
On the second point, he noted that "even if the [plaintiff]'s recollection is accurate as to when she first began experiencing falls, by all accounts [her] decline has been slow and progressive, and thus while she may have first fallen prior to the [DLI], there is no corroborating evidence in the contemporaneous medical records that those falls occurred on a regular basis." Id. at 21 (citation omitted). He stated that he had nonetheless considered all evidence relating to the plaintiff's physical functioning as of her DLI, regardless of whether caused by her documented scoliosis or sciatica or undiagnosed cerebellar ataxia. See id.
The plaintiff takes issue with the ALJ's handling of the Poulopoulos opinion on several bases. First, she argues that, although the ALJ cited the 2014 Bourque records as evidence that her gait was not affected by cerebellar ataxia prior to a frostbite injury in 2014, Dr. Bourque was puzzled by her report that her gait was not abnormal prior to the frostbite injury, and her daughterin-law had known her for only three years, as a result of which the daughter-in-law's "report provides no evidence at all to support the absence of an impairment prior to [her] DLI, contrary to the ALJ's finding." Statement of Errors at 5-6 (citations omitted).
However, as the commissioner rejoins, see Opposition at 3, the ALJ did not cite the Bourque records as affirmative evidence that the plaintiff had no gait abnormality prior to her DLI but, rather, as evidence that the plaintiff's own reports were unreliable, as a result of which he was unwilling to credit an opinion predicated on them, see Record at 20-21.
Second, the plaintiff contends that the ALJ erred in characterizing the Poulopoulos opinion as based on her "own self-report," noting that she was accompanied by both her daughter and daughter-in-law on the Poulopoulos visit and that her daughter, rather than she, reported to Dr. Poulopoulos that she had first fallen eight to nine years earlier and had balance and memory problems ever since. See Statement of Errors at 6-7.
Dr. Poulopoulos did state that the plaintiff's daughter reported that the plaintiff had been having problems for at least eight to 10 years. See Record at 911. But, he also indicated that he had taken history from all present (the daughter, the daughter-in-law, and the plaintiff). See id. While the plaintiff's daughter reported that the plaintiff's first fall and subsequent balance problems had occurred eight to nine years earlier, the plaintiff was present during the conversation and, more importantly, testified to similar effect at her hearing, stating that she had been falling for no reason approximately every other week in 2009. See id. at 41-42. Thus, the ALJ reasonably found that, apparently as a result of memory difficulties, the plaintiff had provided inconsistent (and thus unreliable) reports regarding the onset of her frequent falls.
In turn, the fact that a treating source has predicated his or her opinion at least in part on a claimant's unreliable or inconsistent subjective statements constitutes a good reason for assigning it less weight. See, e.g., Lumpkin v. Berryhill, No. 2:17-cv-00081-NT, 2018 WL 640229, at *8 (D. Me. Jan. 31, 2018) (rec. dec., aff'd Mar. 29, 2018) (findings that expert's opinion was "partly based on the [claimant]'s subjective allegations and inconsistent with other evidence of record" constituted "good reasons to give little or no weight even to the opinion of a treating source").
Finally, the plaintiff argues that the ALJ erred in assigning little weight to the Poulopoulos opinion on the basis of a lack of corroborating evidence in the contemporaneous medical records that the falls occurred on a regular basis prior to her DLI. See Statement of Errors at 7. She contends that, in so finding, the ALJ erroneously required objective evidence of symptoms, rather than an impairment or diagnosis, in violation of Social Security Ruling 16-3p ("SSR 16-3p"). See id.
As the commissioner rejoins, see Opposition at 4, the ALJ did not state that objective evidence of symptoms was required. Rather, he noted that the absence from the contemporaneous medical records of reports of frequent falls or gait disturbance cut against Dr. Poulopoulos' opinion that the plaintiff's onset date of cerebellar ataxia probably occurred eight or nine years prior to the time he treated her in 2014-15. See Record at 21.
Dr. Shannon, the plaintiff's primary care provider, completed a Medical Source Statement of Ability To Do Work-Related Activities (Physical) form dated August 22, 2014, in which he indicated that the plaintiff had a number of substantial physical restrictions, including an inability to lift or carry any weight, stand and/or walk for two hours or more in an eight-hour workday, or reach, handle, finger, or feel for even two and a half hours in an eight-hour workday. See Record at 417-20. The ALJ explained:
Id. at 25 (citations omitted).
The plaintiff first complains that, in observing that Dr. Shannon did not address her condition prior to her DLI, the ALJ failed to mention that Dr. Shannon provided his opinion at the request of the Social Security Administration, using the form that it had sent him. See Statement of Errors at 8. At oral argument, her counsel contended that the form may not have made clear to Dr. Shannon that he was to address the plaintiff's limitations prior to her DLI.
However, as the commissioner observes, see Opposition at 5-6 & n.2, the form included a statement that the opinion expressed therein pertained to the plaintiff's limitations from June 2, 2008, through the present, see Record at 420, and the ALJ expressly considered whether the opinion accurately reflected the plaintiff's condition prior to her DLI insofar as it pertained to her documented back pain, concluding that it did not, see id. at 25.
The plaintiff next contends that, in deeming Dr. Shannon's opinion inconsistent with her treatment records and activities of daily living prior to her DLI, the ALJ incorporated his erroneous evaluation of her testimony regarding her symptoms and limitations. See Statement of Errors at 8. I find no error in that evaluation for the reasons discussed below.
At bottom, the ALJ offered good reasons for according the Shannon opinion little weight: that it was largely supported by medical findings postdating the plaintiff's DLI and, to the extent it pertained to the period prior to her DLI, was inconsistent with other evidence of record. See, e.g., Campagna v. Berryhill, No. 2:16-cv-00521-JDL, 2017 WL 5037463, at *4 (D. Me. Nov. 3, 2017) (rec. dec., aff'd Jan. 2, 2018) ("lack of support and inconsistency with other substantial evidence of record are well-recognized bases for affording a treating source's medical opinion little or no weight"). No more was required.
The plaintiff next argues that, in evaluating her testimony regarding her symptoms and limitations, the ALJ contravened the dictates of SSR 16-3p in two respects: that he relied on a lack of corroborating objective medical evidence and drew a negative inference from her failure to seek treatment without considering possible reasons why she may not have done so. See Statement of Errors at 8-9. She adds that the ALJ's finding that her testimony was "largely consistent" with the assessed RFC did not apply to her testimony that she experienced frequent falls prior to her DLI due to her later-diagnosed cerebral ataxia. Id. at 9-10. Again, I find no error.
As the commissioner observes, see Opposition at 10, SSR 16-3p provides that an ALJ "will not disregard an individual's statements about the intensity, persistence, and limiting effects of symptoms solely because the objective medical evidence does not substantiate the degree of impairment-related symptoms alleged by the individual[,]" SSR 16-3p, printed in West's Social Security Reporting Service, Rulings 1983-1991 (Supp. 2018), at 741 (emphasis added). The ALJ did not do so here. He provided additional reasons for his evaluation, among them that the plaintiff was recorded to have complained only once, in August 2009, that she had fallen, that she went on a "`long hike'" the following month, and that she sought no medical treatment prior to her DLI for frequent falls. Record at 23-24 (citation omitted). He did not err in relying in part on a lack of corroborating objective medical evidence. To the contrary, as the commissioner points out, see Opposition at 10, SSR 16-3p describes objective medical evidence as "a useful indicator to help make reasonable conclusions about the intensity and persistence of symptoms, including the effects those symptoms may have on the ability to perform work-related activities[,]" SSR 16-3p at 741.
While SSR 16-3p directs that ALJs will "consider[] possible reasons [a claimant] may not comply with treatment or seek treatment consistent with the degree of his or her complaints[,]" SSR 16-3p at 745, the plaintiff identifies no evidence of her reason(s) for failure to seek treatment prior to her DLI that the ALJ ignored, see Statement of Errors at 9.
Finally, the ALJ did not err in describing the plaintiff's testimony as "largely consistent" with his assessed RFC. Record at 24. He did so only after explaining why he did not credit her testimony that she began experiencing frequent falls prior to her DLI. See id. at 23-24. He then detailed a number of ways in which, in his view, her testimony aligned with his assessed RFC, see id. at 24, none of which the plaintiff separately challenges, see Statement of Errors at 9-10.
The plaintiff finally argues that the ALJ "should have consulted with a medical advisor to determine the onset date of [her] disability rather than basing his findings regarding her pre-DLI limitations upon his own interpretation of her medical records and testimony." Statement of Errors at 10. The commissioner rejoins that SSR 83-20 was inapplicable because the plaintiff never was determined to have been disabled and, even if it did apply, the medical evidence regarding onset date of disability was not ambiguous, as a result of which the duty to call a medical advisor pursuant to that ruling did not arise. See Opposition at 11-12. I need not determine whether the ALJ erred in failing to apply SSR 83-20 because I conclude that, even if it did apply, the duty to call a medical advisor was not triggered.
SSR 83-20 provides, in pertinent part:
SSR 83-20, reprinted in West's Social Security Reporting Service Rulings 1983-1991, at 51.
SSR 83-20 "instructs an ALJ to consult a medical expert when the ALJ must infer a claimant's date of disability onset on the basis of ambiguous medical evidence." Fischer v. Colvin, 831 F.3d 31, 32 (1st Cir. 2016). If "the medical evidence [i]s not ambiguous[,]" an ALJ need not "draw inferences as to whether [a claimant's] onset date preceded the expiration of her insured status[,]" and SSR 83-20 does "not require the ALJ to consult a medical expert." Id.
As the commissioner argues, see Opposition at 11-12, the medical evidence concerning the plaintiff's onset date of disability was not ambiguous. First, as the commissioner notes, see id., agency nonexamining consultant Donald Trumbull, M.D., reviewed the available contemporaneous evidence of record, opining on December 24, 2014, that there was insufficient evidence to evaluate the plaintiff's impairments as of her DLI, see Record at 70. Such a finding by an agency consultant "cut[s] against, rather than supporting, a finding of ambiguity" for purposes of SSR 83-20. McGlynn, 2012 WL 2913535, at *5.
Second, as counsel for the commissioner noted at oral argument, this was not a case involving an absence of evidence during the relevant time period. Rather, the ALJ had the benefit of review of "contemporaneous medical evidence that [he] reasonably viewed as cutting against a finding of disability[,]" McGlynn, 2012 WL 2913535, at *4, deeming it "suggestive of an ability to perform within the [RFC]" during the relevant time period, Record at 25. Thus, even assuming arguendo that SSR 83-20 applied, it did not require that the ALJ call a medical advisor to infer the plaintiff's onset date of disability. See also, e.g., Fischer, 831 F.3d at 36 (assuming arguendo that SSR 83-20 applied, it did not require ALJ to call a medical advisor to infer the onset date of claimant's disability when "[t]he ALJ did not rely upon the absence of medical evidence but rather the existence of `precise' medical evidence — the normal results of the diagnostic imaging — when concluding that [the claimant's] impairments had not reached disabling severity prior to her DLI").
For the foregoing reasons, I recommend that the commissioner's decision be