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Nunes v. Berryhill

United States District Court, D. Massachusetts

September 20, 2017

MANUEL NUNES, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          Leo T. Sorokin United States District Judge.

         Manuel Nunes submitted a Title II application for a period of disability and disability insurance benefits on September 18, 2012, claiming an alleged onset date of May 29, 2012. R. at 125. Nunes's claims were denied initially and upon reconsideration on August 16, 2013. Id. Nunes filed a written request for a hearing on September 11, 2013, and appeared and testified at the hearing on September 4, 2014. Id. On September 24, 2014, the ALJ found at step one that Nunes had not engaged in substantial gainful activity since May 29, 2012, R. at 127; at step two that Nunes had multiple severe impairments, id.; at step three that those impairments did not meet the definition of a severe impairment or combination of impairments under the regulations, R. at 129; at step four that Nunes's RFC allowed for light work except that he was limited to standing or walking at least six hours in an eight hour day, sitting with normal breaks about six hours in an eight hour day, could climb, balance, stoop, kneel, crouch, crawl, and push and pull with his left upper extremity only occasionally, could never climb ropes, ladders and scaffolds, could occasionally interact with the public, coworkers, and supervisors, could perform simple, routine, and repetitive tasks, and must avoid concentrated exposure to noise and moderate exposure to vibrations, fumes, odors, dust, gases, and poor ventilation, R. at 129-30; and at step five that jobs existed in significant numbers in the national economy that Nunes could perform, R. at 138.

         The Appeals Council granted Nunes's request for review on March 3, 2016. R. at 5. On May 18, 2016, the Appeals Council issued a decision correcting Nunes's date last insured to December 31, 2014. R. at 5. The Appeals Council also found that Nunes was under a disability beginning September 24, 2014, but was not disabled before that. R. at 8.

         Nunes then filed this action seeking judicial review by the Court pursuant to 42 U.S.C. § 405(g). Nunes asserts that he was disabled since his alleged onset date of May 29, 2012. Doc. No. 31 at 1. For the reasons stated below, the Court DENIES Nunes's Motion to Reverse, Doc. No. 20, and ALLOWS the Defendant's Motion to Affirm, Doc. No. 29.

         ANALYSIS[1]

         A. Standard of Review

         Here, because the Appeals Council (“AC”) granted review, the Court considers the Council's decision as a final decision. Sims v. Apfel, 530 U.S. 103, 106-07 (2000) (“SSA regulations provide that, if the Appeals Council grants review of a claim, then the decision that the Council issues is the Commissioner's final decision.”). Accordingly, the Court reviews the AC decision and the portions of the ALJ decision that it adopted. Id. The Court's jurisdiction is limited to reviewing the Administrative Record to determine whether the ALJ applied the proper legal standards and whether the decision is supported by substantial evidence in the record. 42 U.S.C. § 405(g); Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996) (per curiam). Substantial evidence is such relevant evidence as a reasonable mind, reviewing the evidence in the record as a whole, could accept as adequate to support a conclusion. Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981). Determinations of credibility and the resolution of conflicts in the evidence are for the Commissioner and not for the doctors or for courts. Id.; see Richardson v. Perales, 402 U.S. 389, 399 (1971).

         Nevertheless, administrative findings of fact are not conclusive “when derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam). If the Court finds that the Commissioner's decision is based on legal error or is not supported by substantial evidence, it has the power to modify or reverse the Commissioner's decision, with or without remanding for rehearing. 42 U.S.C. § 405(g).

         B. ALJ's RFC Finding

         Pursuant to 20 C.F.R. §§ 404.1520(e) and 416.920(e), the ALJ must determine a claimant's RFC, which is a claimant's ability to do physical and mental work on a sustained basis despite limitations from her impairments. In making the RFC finding, the ALJ must consider all of the claimant's impairments, including impairments that are not severe. See 20 CFR 404.1520(e), 404.1545, 416.945; SSR 96-8p. The ALJ formulated Nunes's RFC as follows:

After careful consideration of the entire record, I find that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except that the claimant is limited to standing or walking at least 6 hours in an 8-hour day; sitting with normal breaks about 6 hours in an 8-hour day; occasionally climbing, balancing, stooping, kneeling, crouching, or crawling; never climbing ropes, ladders, and scaffolds; occasionally pushing and pulling with his left upper extremity; occasionally interacting with the public, coworkers, and supervisors; and performing simple, routine, and repetitive tasks. The claimant must further avoid concentrated exposure to noise and moderate exposure [to] vibrations, fumes, odors, dust, gases, and poor ventilation.

R. at 129-30.

         C. SSR 16p-3

         At the time of the ALJ's decision in September 2014, Social Security Ruling (“SSR”) 96-7p was the standard governing the evaluation of symptoms in disability claims. See SSR 96-7p, 1996 WL 374186 (July 2, 1996). In March 2016, the Social Security Administration (“SSA”) published SSR 16-3p, a new ruling superseding SSR 96-7 on the subject. See SSR 16-3p, 2016 WL 1237954 (March 16, 2016). This new ruling was effective when the AC issued its decision on May 18, 2016. See R. at 9. While the AC did not explicitly state whether it applied SSR 96-7p or SSR 16-3p, Nunes contends that because the AC adopted the ALJ's findings, and the ALJ applied SSR 96-7, the AC's decision relies on SSR 96-7. Doc. No. 31 at 9 (“The AC adopted the ‘ALJ's statements regarding the pertinent provisions of the' Commissioner's ...


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