Purdy v. Berryhill

• Decision Date: 03 April 2018
• Docket Number: No. 16-2242,16-2242
• Citation: 887 F.3d 7
• Parties: Rita PURDY, Plaintiff, Appellant, v. Nancy A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

887 F.3d 7

Rita PURDY, Plaintiff, Appellant,

v.Nancy A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant, Appellee.

No. 16-2242

United States Court of Appeals, First Circuit.

April 3, 2018

Sarah H. Bohr, Atlantic Beach, FL, with whom Francis M. Jackson, South Portland, ME, was on brief, for appellant.

Molly E. Carter, Special Assistant United States Attorney, with whom Richard W. Murphy, Acting United States Attorney, was on brief, for appellee.

Before Kayatta, Circuit Judge, Souter, Associate Justice,^* and Selya, Circuit Judge.

SOUTER, Associate Justice.

This is an appeal from the district court's affirmance of an administrative law judge's finding that the appellant, Rita Purdy, was not disabled and was thus not entitled to Supplemental Security Income (SSI) benefits. Although the record of her attempts to demonstrate disability is a complicated interplay of medical testimony, the facts to be considered in this appeal may be stated with relative economy, so far as they bear on the two issues raised before us: Whether the administrative law judge (ALJ) lapsed into error in according only slight weight to the testimony of a physician who treated Purdy for a non-displaced fracture of her left femur, and whether the ALJ was entitled to rely on evidence presented by the appellee Commissioner about available jobs that Purdy was qualified to perform. We affirm on both issues.

I

An applicant for SSI benefits¹ bears the burden of proof at the first four steps of a five-step procedure established to determine whether an applicant is entitled to disability benefits. Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001) ("The applicant has the burden of production and proof at the first four steps of the process."). An applicant for SSI benefits is disabled "if he is unable 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 which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). The impairment must be "of such severity that [the applicant] 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." Id. § 1382c(3)(B).

The five-step sequence employed by the Social Security Administration (the SSA) proceeds as follows:

1) if the applicant is engaged in substantial gainful work activity, the application is denied; 2) if the applicant does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3) if the impairment meets the conditions for one of the "listed" impairments in the Social Security regulations, then the application is granted; 4) if the applicant's "residual functional capacity" is such that he or she can still perform past relevant work, then the application is denied; 5) if the applicant, given his or her residual functional capacity, education, work experience, and age, is unable to do any other work, the application is granted.

Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (quoting 20 C.F.R. § 416.920 (2001) ).

Put differently, even if an applicant fails to show disability at Step 3 because his impairment does not meet the conditions of a "listed" impairment in the Federal Regulations, he may still be eligible for benefits. In particular, if the applicant's "residual functional capacity"² is such that he cannot perform jobs he performed in the past, "the Commissioner then has the burden at Step 5 of coming forward with evidence of specific jobs in the national economy that the applicant can still perform," or else a finding of disability is required. Freeman, 274 F.3d at 608.

II

On October 10, 2011, Purdy filed an application for SSI benefits, alleging disability due to a total knee replacement

in April 2011; thoracic and lumbar spine degenerative disc disease ; right shoulder rotator cuff bone spurs; severe migraines, nerve damage, and throat problems; attention deficit hyperactivity disorder (ADHD) and attention deficit disorder ; post-traumatic stress disorder ; panic disorder ; substance abuse; and learning difficulties. Purdy's claim was initially denied on March 19, 2012, and again on reconsideration. In November 2012, Purdy filed a request for a hearing, which took place on February 11, 2014. On February 27, 2014, the administrative law judge who presided over Purdy's hearing issued a decision finding that Purdy was not disabled within the meaning of the Social Security Act and denying her claim.³

At Step 1, the ALJ found that Purdy had not engaged in substantial gainful activity since filing her application. At Step 2, the ALJ found that Purdy had the following severe impairments (i.e. , impairments significantly limiting her ability to perform basic work activities, see 20 C.F.R. § 416.922 ): "status post knee replacement; degenerative disc disease

; right shoulder rotator cuff bone spurs; chronic pain; dysthymia ; anxiety disorder; ADHD; [and] history of substance abuse in remission." Addendum to Appellant's Amended Initial Br. (Add.) 21. The ALJ noted that although Purdy had been diagnosed with a left hip stress fracture in April 2013,⁴ the impairment was not "severe" as there was "no evidence in the record that it ha[d] persisted or [was] expected to persist for 12 consecutive months as required by 20 CFR §§ 404.1509 and 416.909." Id. at 21-22.⁵ At Step 3, the ALJ found that Purdy did not have an impairment or combination of impairments that met the conditions for one of the "listed" impairments in the Social Security regulations. 20 C.F.R. § 416.920(d).

Having determined that Purdy's impairments did not meet the conditions for a listed impairment, the ALJ's next task was to determine Purdy's "residual functional capacity based on all the relevant medical and other evidence in [the] case record." 20 C.F.R. § 416.920(e). The ALJ determined that Purdy retained the residual functional capacity to perform sedentary work in unskilled jobs with simple instructions and occasional interaction with others. The ALJ further determined that Purdy "should never climb ladders, ropes or scaffolds," "must not use foot controls," "must avoid exposure to hazards, such as unprotected heights," and could engage in "rare balancing, crouching, crawling, kneeling, and climbing of ramps or stairs." Add. 23-24.

The ALJ explained that though Purdy claimed that she was unable to lift, bend, sit, stand, walk, or kneel without suffering extreme pain, Purdy's "statements concerning the intensity, persistence and limiting effects of [her] symptoms [were] not entirely credible." Add. 25. In particular, Purdy's October 2011 "Function Report" indicated that she was able to cook meals, perform all household chores, go out alone, use public transportation, shop in stores, manage her finances, socialize with friends, and attend meetings. These activities, the ALJ reasoned, established Purdy's ability to perform sedentary tasks. The ALJ also observed, based on the notes from an emergency room visit in April 2012, that "[i]t seems [Purdy] exaggerates her symptoms and engages in opiate seeking behavior." Add. 26.

Significantly for purposes of this appeal, the ALJ accorded little weight to the opinion of Dr. Michael Kessler as provided on an SSA-issued form that Dr. Kessler completed regarding Purdy's ability to perform work-related activities. Dr. Kessler found that Purdy could lift or carry less than 10 pounds occasionally (and nothing frequently); could stand or walk for less than two hours in an eight-hour workday; could sit for about six hours in an eight-hour workday; was limited in her ability to push or pull with her lower extremities; could not climb, balance, kneel, crouch, crawl, or stoop; and could endure only limited exposure to vibration and humidity. Dr. Kessler attributed these limitations in Purdy's functioning to a "fracture of [the] left femur [with] delayed union."

In the ALJ's view, Dr. Kessler's opinion was conclusory and unsubstantiated: Dr. Kessler had "simply check marked boxes indicating [Purdy] had limitations that would increase the likelihood of [her] obtaining benefits[,] but did not explain why those limitations were chosen; in particular, he gave no examples of objective laboratory findings, symptoms or other medical evidence to support the conclusions." Add. 27.

By contrast, the ALJ accorded evidentiary weight to the findings of the State agency's non-examining medical and psychological consultants.⁶ Those physicians had agreed, based on their analysis of the evidence in January and September 2012, respectively, that Purdy was capable of performing sedentary work within the limitations identified by the ALJ.

The ALJ completed Step 4 by finding that Purdy had no past relevant work and went on to Step 5, where she determined that there were jobs existing in significant numbers in the national economy that Purdy could perform. That determination was based on the testimony of an impartial vocational expert (VE). The ALJ asked the VE to consider whether jobs were available in the national economy for someone with Purdy's age and education who could lift 10 pounds frequently and 20 pounds occasionally; could stand and walk for two hours in a workday; could sit for six hours in a workday; could rarely balance, crouch, crawl, kneel, or climb; could not work around hazards; could not climb ladders, ropes, or scaffolds; could not operate foot controls; and who could perform only simple jobs with simple instructions, limited changes, and only occasional interaction with the public.⁷ The VE testified that such an...