Coskery v. Berryhill , 892 F.3d 1 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1886
DARRYL C. COSKERY,
Plaintiff, Appellant,
v.
NANCY A. BERRYHILL,
acting Commissioner of Social Security Administration,
Defendant, Appellee.
APPEAL FROM THE DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Lynch, Thompson, and Barron,
Circuit Judges.
Riley L. Fenner for appellant.
Christopher L. Potter, Special Assistant U.S. Attorney, with
whom Halsey B. Frank, United States Attorney, was on brief, for
appellee.
June 4, 2018
BARRON, Circuit Judge. Darryl Coskery appeals the
District Court's order upholding the denial of his application for
Social Security Disability Insurance Benefits and Supplemental
Security Income. We affirm.
I.
Coskery, a former line cook and chef, filed his claim
for benefits with the Social Security Administration (SSA) in
September 2013. The SSA denied his request. Coskery sought a
hearing before an Administrative Law Judge (ALJ), see 20 C.F.R.
§ 404.929, which was held on August 5, 2015.
The key question before the ALJ was whether Coskery was
disabled. See 42 U.S.C. § 423(a)(1). Congress defines "disabled,"
as relevant here, as the "inability to engage in any substantial
gainful activity by reason of any medically determinable physical
. . . 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 12 months[.]" Id. § 423(d)(1)(A).
The SSA has promulgated a regulation that structures the
inquiry that an ALJ must undertake to evaluate whether a claimant
is "disabled" under the statute. The regulation sets forth a five-
step inquiry:
(i) At the first step, we consider your work
activity, if any. If you are doing
substantial gainful activity, we will find
that you are not disabled. . . .
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(ii) At the second step, we consider the
medical severity of your impairment(s). If
you do not have a severe medically
determinable physical or mental impairment
. . . we will find that you are not
disabled. . . .
(iii) At the third step, we also consider the
medical severity of your impairment(s). If
you have an impairment(s) that meets or equals
one [set forth in an appended list] and meets
the duration requirement, we will find that
you are disabled . . . .
(iv) At the fourth step, we consider our
assessment of your residual functional
capacity and your past relevant work. If you
can still do your past relevant work, we will
find that you are not disabled. . . .
(v) At the fifth and last step, we consider
our assessment of your residual functional
capacity and your age, education, and work
experience to see if you can make an
adjustment to other work. If you can make an
adjustment to other work, we will find that
you are not disabled. If you cannot make an
adjustment to other work, we will find that
you are disabled.
20 C.F.R. §§ 404.1520(a)(4)(i)-(v).
The ALJ released a decision on August 24, 2015 that
determined that Coskery's claim failed at the fifth step of the
inquiry. The ALJ ruled that, although Coskery suffered from a
medical impairment, he retained a "residual functional capacity to
perform light work." According to a regulation promulgated by the
SSA, light work requires an individual to "lift[] no more than 20
pounds at a time with frequent lifting or carrying of objects
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weighing up to 10 pounds," and requires "a good deal of walking or
standing." Id. § 404.1567(b).
The ALJ also found that jobs requiring only light work
existed in significant numbers in the national economy. The ALJ
thus found that, because Coskery could make "[an] adjustment to
other work," he was "not disabled."
Coskery sought review of the ALJ's denial of his claim
for benefits in the United States District Court for the District
of Maine. Coskery argued that, in assessing the ALJ's
determination that he was not disabled, the District Court was
required to follow a Social Security Ruling (SSR), SSR 16-3p, 82
Fed. Reg. 49462 (Oct. 25, 2017), that superseded the SSR that the
ALJ had applied, SSR 96-7p, 61 Fed. Reg. 34483 (July 2, 1996),
even though SSR 16-3p was published after the ALJ had ruled in his
case. Coskery further contended that, when reviewed under SSR 16-
3P, the ALJ's ruling was not supported by substantial evidence.
The District Court referred the case to a magistrate
judge, who issued a Report and Recommended Decision. That decision
recommended upholding the ALJ's ruling because SSR 16-3p did not
apply retroactively and, when reviewed under SSR 96-7p, the ALJ's
ruling was supported by substantial evidence. The District Court
adopted the Magistrate Judge's recommended decision and upheld the
agency's order denying Coskery's claim for benefits. This appeal
followed.
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II.
We review SSA rulings that deny benefits claims to
determine "whether the final decision is supported by substantial
evidence and whether the correct legal standard was used." Seavey
v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001). We review questions
of law de novo, id., and questions of fact for substantial
evidence. 42 U.S.C. § 405(g); Seavey, 276 F.3d at 9; see also
Purdy v. Berryhill, 887 F.3d 7, 12-13 (1st Cir. 2018).
The parties frame their dispute as one that turns on
whether substantial evidence supports the ALJ's determination that
Coskery was not disabled. But, underlying that record-based
dispute is a purely legal one: whether we must review the ALJ's
ruling for substantial evidence under SSR 16-3p or under the SSR
that was in place at the time that the ALJ ruled in Coskery's case,
SSR 96-7p. We thus start with that dispute, which, because it
concerns a question of law, we review de novo. Seavey, 276 F.3d
at 9.
In the end, though, as we will explain, we need not
resolve which SSR applies, notwithstanding the time that the
parties spend sparring over that issue. And that is because,
although the District Court rejected Coskery's challenge only
after concluding that SSR 96-7p applies, we may affirm the District
Court's conclusion "on any ground made manifest by the record."
O'Connell v. Marrero-Recio, 724 F.3d 117, 126 (1st Cir. 2013).
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And, Coskery's challenge fails even if we apply the more recent
SSR that he contends we must.1
A.
SSRs are, by regulation, "final opinions and orders and
statements of policy and interpretations that [the SSA] ha[s]
adopted." 20 C.F.R. § 402.35(b)(1). The two SSRs at issue here
-- SSR 96-7p and SSR 16-3p -- address, among other things, the
proper way for an ALJ to assess a claimant's symptoms, including
pain, under 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).
SSR 96-7p requires an ALJ to assess the applicant's
"credibility" when assessing the "extent to which an individual's
statements about symptoms can be relied upon as probative evidence
in determining whether the individual is disabled." SSR 96-7p, 61
Fed. Reg. at 34485. Following concerns raised by the
Administrative Conference of the United States about symptom
evaluation under that SSR, however, the SSA decided to "eliminat[e]
the use of the term 'credibility' from [the] sub-regulatory policy"
to make clear that a "subjective symptom evaluation is not an
examination of an individual's character." SSR 16-3p, 82 Fed.
Reg. at 49463; id. at 49463 n.1.
Thus, under SSR 16-3p, which supersedes SSR 96-7p, an
ALJ determining whether an applicant has a residual functional
1
We note that Coskery makes no argument that he can win under
the old SSR even if he cannot win under the new one.
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capacity that precludes a finding of disability must "evaluate the
intensity and persistence of an individual's symptoms such as pain
and determine the extent to which an individual's symptoms limit
his or her ability to perform work-related activities." Id. at
49464. Moreover, SSR 16-3p provides that, in conducting that
inquiry, the ALJ must "examine 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; and any other relevant evidence in the individual's
case record." Id. In addition, this new SSR expressly provides
that the ALJ may not consider "an individual's character." Id. at
49463.
As a general matter, "administrative rules will not be
construed to have retroactive effect unless their language
requires this result." Bowen v. Georgetown Univ. Hosp., 488 U.S.
204, 208 (1988). Coskery nevertheless contends that the new SSR
applies to his case on appeal because it merely clarifies the SSA
regulation that sets forth the five-step sequence for determining
whether a claimant is disabled and thus effects no substantive
change in the agency's interpretation of either the statutory
definition of "disabled" or the regulations governing the steps
that an ALJ must undertake in assessing whether a claimant is
"disabled." Cf. Pope v. Shalala, 998 F.2d 473, 483 (7th Cir. 1993)
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(holding that clarifying regulations that do not announce a change
in law apply retroactively to cases pending on appeal) overruled
on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999).
The SSA argues, by contrast, that the text of SSR 16-3p
makes clear that it does not apply in this case, even though that
SSR did take effect while Coskery's case was pending on appeal.
The SSA points out that, among other things, the text of this SSR
clearly provides both that it has an "effective date" of March 27,
2016 -- which is after the ALJ ruled on Coskery's case -- and that
"[w]hen a Federal court reviews our final decision in a claim, we
expect the court will review the final decision using the rules
that were in effect at the time we issued the decision under
review." SSR 16-3p, 82 Fed. Reg. at 49468 n.27.2 See Hargress v.
Soc. Sec. Admin., Comm'r, 874 F.3d 1284, 1290 (11th Cir. 2017)
(per curiam) (holding that "SSR 16-3p applies only
prospectively").
2
When initially published on March 16, 2016, SSR 16-3's
effective date was March 16, 2016. SSR 16-3p, 81 Fed. Reg. 14166
(March 16, 2016). On March 24, 2016, the agency issued a notice
correcting SSR 16-3p's effective date to March 28, 2016. SSR 16-
3p, 81 Fed. Reg. 15776 (March 24, 2016). Then, on October 25,
2017, the agency again republished SSR 16-3p, stating that it
changed the SSR's "terminology from 'effective date' to
'applicable date' based on guidance from the Office of the Federal
Register," and also "updated citations to reflect the revised
regulations that became effective on March 27, 2017," but that the
"[r]uling [was] otherwise unchanged." SSR 16-3p, 82 Fed. Reg. at
49462.
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We doubt that Coskery is right that we must apply the
new SSR to his case. After all, he agrees that the SSA's
interpretation of a regulation when it takes the form of an SSR is
entitled to deference,3 and the text of the new SSR does appear to
favor the SSA's view that it does not apply to ALJ rulings rendered
prior to the SSR's effective date.
But, we need not resolve the issue. Even if we review
the ALJ's ruling on the understanding that we must apply SSR 16-
3p in reviewing the ALJ's ruling, the ALJ's determination that
Coskery is not disabled still must be upheld.4
B.
In arguing otherwise, Coskery contends that, under SSR
16-3p, the ALJ's ruling cannot be sustained because substantial
evidence does not support it. But, although Coskery frames this
challenge as an evidentiary one, it appears that his claim of error
rests less on an assertion about the lack of record support for
3 There appears to be some disagreement among the courts of
appeals as to what level of deference SSRs are entitled. Compare
Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 549 (6th Cir. 2004)
(applying the level of deference set forth in Auer v. Robbins, 519
U.S. 452, 461 (1997), to an SSR), with Lauer v. Bowen, 818 F.2d
636, 640 n.8 (7th Cir. 1987) (applying the deference set forth in
Skidmore v. Swift & Co., 323 U.S. 134 (1944), to an SSR). We need
not resolve in this case what level of deference to SSRs is
appropriate.
4 Because we assume that the superseding SSR applies, we have
no occasion to address the level of deference -- if any -- that
should be accorded to an SSR that the SSA has seen fit to replace
due to concerns about its accuracy with an SSR that will apply
only prospectively.
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the ALJ's ruling than on his contention that the ALJ applied an
incorrect legal standard by not relying on SSR 16-3p.
In particular, Coskery argues that "the ALJ's decision
was not consistent with the requirements of SSR 16-3p." In so
arguing, he focuses on the portion of that SSR that instructs an
ALJ not to evaluate a claimant's "character or truthfulness" in
evaluating the severity of the claimant's symptoms. 82 Fed. Reg.
at 49467. Coskery contends that the ALJ violated this requirement
because he "erroneously based his evaluation of Mr. Coskery's
testimony regarding his disabling symptoms and limitations in
material part upon an evaluation of Mr. Coskery's 'character or
truthfulness' based upon evidence and testimony that was unrelated
to his symptoms and limitations." Our review of whether the ALJ
violated SSR 16-3p in this way is de novo. See Myers v. Califano,
611 F.2d 980, 982-83 (4th Cir. 1980) (holding that whether an ALJ
considered the correct evidence is a question of the "[]correct
legal standard"); see also Purdy, 887 F.3d at 13 ("The ALJ's
factual findings must be supported by substantial evidence and the
legal standards must be correct."); Seavey, 276 F.3d at 9
("Questions of law are reviewed de novo.").
To support the contention that the ALJ violated this
aspect of SSR 16-3p, Coskery first points to the ALJ's reference
to Coskery's marijuana use. Coskery notes that the ALJ found that
he had not complied with his medical treatment, as his toxicology
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screenings had come back positive for marijuana in 2010 and 2013
despite warnings from his doctors that "if he had one more positive
drug screen, he would no longer be prescribed narcotics." And,
Coskery also notes, the ALJ stated that Coskery, "despite being
under oath" at the hearing on his benefits claim, "testified that
he had not used any illicit substances including marijuana since
2009."
But while Coskery argues that the ALJ made these
references to his marijuana use for the purpose of making a
determination about his overall character and then relying on that
determination to discount his evidence about the severity of his
symptoms, we do not read the ALJ to have done so. We read the ALJ
instead to have referenced Coskery's marijuana use in the course
of making a finding that Coskery, as part of his treatment for his
pain, had been instructed to refrain from using marijuana and
warned that, if he did not do so, he would not be prescribed
narcotics for his pain. Thus, we read the ALJ to have referenced
Coskery's marijuana use not for the purpose of making an assessment
of Coskery's character or truthfulness but in order to explain the
basis for its finding that Coskery "was noncompliant with
treatment."
So understood, the ALJ did not violate SSR 16-3p. That
SSR does not preclude an ALJ, in assessing the claimant's symptoms,
from considering whether a claimant has complied with treatment
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for the pain that the claimant purports to be suffering. In accord
with the common-sense notion that a person who does not follow a
course of treatment for pain may not be suffering from that pain
as intensely as the person claims, SSR 16-3p expressly provides
that an ALJ must "consider an individual's attempts . . . to follow
treatment once it is prescribed when evaluating whether symptom
intensity and persistence affect the ability to perform work-
related activities for an adult or the ability to function
independently." 82 Fed. Reg. at 49466.
The ALJ did state that Coskery, "despite being under
oath at [the] Hearing, testified that he had not used any illicit
substances including marijuana" since before the toxicology
screenings. But, we do not read the ALJ, by so stating, to have
been making a finding regarding Coskery's "overall character or
truthfulness," id. at 49467, in order to use that finding to assess
the strength of Coskery's evidence concerning his symptoms.
Rather, we read the ALJ's reference to the discrepancy between
Coskery's testimony at the hearing and the positive toxicology
screenings to be part and parcel of the ALJ's entirely permissible
assessment, under SSR 16-3p, of whether Coskery had been compliant
with his treatment.
Coskery next argues that the ALJ violated SSR 16-3p by
making an assessment of Coskery's character and truthfulness and
then relying on it in assessing the evidence concerning his
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symptoms by pointing to the ALJ's treatment of the evidence
regarding Coskery's daily activities. But, once again, we do not
agree with Coskery's description of what the ALJ did.
SSR 16-3p expressly requires that the ALJ consider an
applicant's "[d]aily activities" to "evaluate the intensity,
persistence, and limiting effects of an individual's symptoms."
Id. at 49465. In accord with that requirement, the ALJ stated
that Coskery and his sister had both testified that Coskery was
actively engaged in a variety of daily activities, including caring
for himself and a dog, maintaining his house, and grocery shopping,
that indicated he did have a residual functional capacity for light
work. Thus, we do not see how the ALJ can be said to have acted
in contravention of the requirements of SSR 16-3p in considering
the evidence of Coskery's daily activities.
Of course, Coskery may be correct in contending, as he
does, that his ability to perform household chores, care for a
dog, shop for groceries, and engage in other daily activities does
not necessarily demonstrate that he is able to perform "light
work." But, our review of whether the ALJ drew a permissible
inference to the contrary from the record is only for substantial
evidence. See Purdy, 887 F.3d at 13. And we do not see how it
was unreasonable for the ALJ to infer, from what the record showed
about Coskery's ability to engage in these types of daily
activities, that Coskery could perform light work. After all, the
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SSA's regulations provide that a person who can "lift[]" up to "20
pounds at a time with frequent lifting" or "carry[] . . . objects
weighing up to 10 pounds" is able to perform such work. 20 C.F.R.
§ 404.1567; cf. Berrios Lopez v. Sec'y of Health & Human Servs.,
951 F.2d 427, 429 (1st Cir. 1991) ("Nor do we see any merit to
claimant's contention that the Secretary failed to give adequate
consideration to claimant's subjective complaints of pain in her
left knee and from arthritis . . . . [The applicant] walked without
assistance, and . . . she came to the District Office driving her
own car and no difficulties were observed.").
Moreover, the ALJ did not rely solely on the evidence
concerning Coskery's daily activities in finding that he did have
the capacity to do light work. The ALJ was careful to stress that
the evidence concerning Coskery's daily activities was "only one
of several factors that [the ALJ] considered," and "[u]ltimately,
it is the entire record as a whole that le[d] [the ALJ] to conclude
that [Coskery] is not disabled." Thus, given that the "'drawing
of permissible inference from evidentiary facts [is] the prime
responsibility of the [Commissioner],' and 'the resolution of
conflicts in the evidence and the determination of the ultimate
question of disability is for [the Commissioner],'" Purdy, 887
F.3d at 13 (quoting Rodriguez v. Sec'y of Health & Human Servs.,
647 F.2d 218, 222 (1st Cir. 1981)) (per curiam) (first alteration
in original), we conclude that substantial evidence supports the
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ALJ's determination that Coskery's ability to carry out certain
daily activities undermines his contention that he is unable to
perform light work.
C.
Coskery separately argues that the ALJ erred in two other
respects, neither of which are specific to any requirement that is
imposed solely by SSR 16-3p. Here, too, Coskery is arguing that
the ALJ applied the wrong legal standard, and so our review is de
novo. And here, too, we find his arguments about how the ALJ erred
unpersuasive.
First, Coskery argues that the ALJ erred by failing to
follow a requirement -- common to both SSR 16-3p and SSR 96-7p --
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, 82 Fed. Reg. at 49465; accord SSR 96-
7p, 61 Fed. Reg. at 34484 ("An individual's statements about the
intensity and persistence of pain or other symptoms or about the
effect the symptoms have on his or her ability to work may not be
disregarded solely because they are not substantiated by objective
medical evidence."). But, we do not agree that the ALJ ran afoul
of this requirement.
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After addressing the medical evidence, the ALJ
considered Coskery's testimony, his sister's testimony, and
Coskery's compliance with treatment before determining that
Coskery's testimony was not fully consistent with the rest of the
record evidence.5 By assessing this evidence along with the other
evidence in the record, the ALJ was acting fully in accord with
the agency's own guidance to "evaluate an individual's symptoms
based on the evidence in an individual's record." SSR 16-3p, 82
Fed. Reg. at 49465; see also SSR 96-7p, 61 Fed. Reg. at 34484.
Second, Coskery contends that the ALJ erred by
disregarding the requirement -- again, common to both SSRs at issue
in this case -- that the ALJ "explain which of an individual's
symptoms [it finds] consistent or inconsistent with the evidence
in his or her record and how [its] evaluation of the individual's
symptoms led to [its] conclusions." SSR 16-3p, 82 Fed. Reg. at
49466; see also SSR 96-7p, 61 Fed. Reg. at 34485. But, here, too,
we do not perceive the error that Coskery identifies.
The ALJ explained at length that the medical evidence
was inconsistent with Coskery's testimony as to his medical
5Coskery also appears to contend that the ALJ's determination
that the medical record was "not necessarily inconsistent" with
his statements regarding his limitations was not reasonable. But,
Coskery has failed to demonstrate that no "reasonable mind" could
have concluded that the two were inconsistent, Purdy, 887 F.3d at
13, and thus we reject this part of his challenge to whether
substantial evidence supports the ALJ's ruling.
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condition, that the activities of Coskery's daily living were
inconsistent with other portions of the record, and that his
noncompliance with treatment demonstrated that "the alleged
intensity and persistence of [Coskery's] symptoms are inconsistent
with the overall evidence of record." See SSR 16-3p, 82 Fed. Reg.
at 49466. We thus do not see what more the ALJ needed to do to
comply with this aspect of the SSR.
III.
The judgment of the District Court is affirmed.
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