Coskery v. Berryhill

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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