Niculae Paval v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration

2022 DNH 070

• Court: District Court, D. New Hampshire
• Decided: June 6, 2022
• Docket: 21-cv-652-SE
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Niculae Paval

v. Civil No. 21-cv-652-SE Opinion No. 2022 DNH 070 Kilolo Kijakazi, Acting Commissioner, Social Security Administration

O R D E R

Niculae Paval challenges the denial of his application for

disability insurance benefits pursuant to 42 U.S.C. § 405(g). An

Administrative Law Judge (“ALJ”) found that Paval, despite a

severe impairment, retains the residual functional capacity to

perform a full range of work at all exertional levels, subject

to certain limitations. Accordingly, the ALJ concluded Paval is

not disabled as defined by Social Security regulations. See 20

C.F.R. § 404.1505(a).

Paval moves to reverse the Acting Commissioner’s decision.

Doc. no. 8. He argues that the ALJ erred in finding that his

post-onset treatment was “conservative” and in relying upon a

medical opinion that was not based upon his entire medical

record. The Acting Commissioner moves to affirm, arguing the

ALJ’s decision was supported by substantive evidence. Doc. no.

9. For the reasons discussed below, the court denies Paval’s

motion to reverse and grants the Acting Commissioner’s motion to

affirm. STANDARD OF REVIEW

For purposes of review under § 405(g), the court “is

limited to determining whether the ALJ deployed the proper legal

standards and found facts upon the proper quantum of evidence.”

Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); accord

Sacilowski v. Saul, 959 F.3d 431, 437 (1st Cir. 2020). The court

defers to the ALJ’s factual findings if they are supported by

substantial evidence. Biestek v. Berryhill, 139 S. Ct. 1148,

1153 (2019). Substantial evidence is “more than a mere

scintilla,” id., and exists, even if the record could support a

different conclusion, when “a reasonable mind, reviewing the

evidence in the record as a whole, could accept it as adequate

to support [the ALJ’s] conclusion,” Irlanda Ortiz v. Sec’y of

Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991); accord

Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018).

In determining whether a claimant is disabled, the ALJ

follows a five-step sequential analysis, “such that the answer

at each step determines whether progression to the next is

warranted.” Sacilowski, 959 F.3d at 433; 20 C.F.R. §§

404.1520(a)(4), 416.920(a)(4). The claimant “has the burden of

production and proof at the first four steps of the process.”

Sacilowski, 959 F.3d at 433. At the first three steps, the

claimant must prove that (1) he is not engaged in substantial

gainful activity; (2) he has a severe impairment; and (3) the

2 impairment meets or equals a listed impairment. 20 C.F.R. §

404.1520(a)(4)(i)-(iii).

If the claimant meets his burden at the first two steps of

the sequential analysis, but not at the third, the ALJ assesses

the claimant’s residual functional capacity (“RFC”) before

proceeding to Step Four. Id. § 404.1520(e). RFC measures the

maximum amount a person can do in a work setting despite the

limitations caused by his impairments. Id. § 404.1545(a)(1). At

Step Four, the claimant must establish that his RFC is

insufficient to perform any of his past relevant work. Id.

§ 404.1520(a)(4)(iv). If the claimant can perform his past

relevant work, the ALJ will find that the claimant is not

disabled. See id. § 404.1520(a)(4)(iv). If the claimant cannot

perform his past relevant work, the ALJ proceeds to Step Five,

in which the Social Security Administration has the burden of

showing that jobs exist in the economy which the claimant can do

in light of the RFC assessment as well as the claimant’s age,

education, and work experience. See id. § 404.1520(a)(4)(v). If

such jobs exist, the claimant is not disabled. Id. If they do

not, he is disabled. Id.

BACKGROUND

A detailed factual background can be found in the Acting

Commissioner’s statement of facts (doc. no. 9-2) and in the

3 administrative record (doc. no. 6).1 The court provides a brief

summary of the case here.

I. Factual Background

Paval was born in 1959. He has worked primarily as a truck

driver, which involves driving all over the country, and loading

and unloading trailers. He has a history of asthma and seasonal

allergies, with particular problems in the springtime, and of

being a smoker. In May 2013, Paval reported to the emergency

room due to shortness of breath. Upon examination, he had

decreased breath sounds and wheezes, but no rhonchi or rales. He

was prescribed medication. Paval returned to the emergency room

in August 2015 for shortness of breath. He indicated that he had

run out of his medication (Albuteral) and that he had difficulty

catching a deep breath while unloading trucks. Paval also said

that he had recently completed a steroid taper and was feeling

short of breath only some of the time since then. His

electrocardiogram (“ECG”), chest x-ray, and examination for

1 Paval did not file a statement of facts with his motion to reverse. But see LR 9.1(c) (the plaintiff’s motion to reverse “shall be accompanied by a (1) statement of material facts not to exceed 15 pages; . . . .”). Because the court grants the Acting Commissioner’s motion to affirm and in light of Paval’s limited arguments in this action, the court waives Paval’s noncompliance with the Local Rule and proceeds with the Acting Commissioner’s statement of facts and the administrative record.

4 pulmonary effect and breath sounds were all normal. After a

nebulizer treatment, Paval’s symptoms improved.

From 2016 to 2019, Paval saw a primary care provider

approximately once a year, typically during the spring or summer

months, for flare-ups in his asthma and allergy symptoms. His

providers consistently diagnosed mild to moderate persistent

asthma, with or without an exacerbation depending on the visit.

Although Paval repeatedly reported symptoms of shortness of

breath and wheezing, his examinations generally showed no

wheezes and no rhonchi or rales. His providers treated his

symptoms with medication management, including inhalers and

nebulizer treatments. They also consistently advised Paval to

avoid exposure to extreme temperatures and airborne irritants.

Paval regularly indicated that nebulizer treatments improved his

symptoms. At times Paval reported not taking some of his

medication regularly, and once requested an at-home nebulizer.

Paval inconsistently reported the persistence of his asthma

symptoms — in some visits reporting that he had no symptoms in

the winter or that his symptoms were always worse in the spring,

and in others reporting that he experienced symptoms year-round.

He also inconsistently reported his history of smoking.

On or around February 15, 2019, Paval stopped working as a

truck driver because the company “cancelled [his truck] run.”

Admin. Rec. at 37. He has not worked since that time.

5 In January 2020, Paval contacted his primary care

provider’s office to report that he had not been “breathing

right” during most days over the past three to four months. Id.

at 615. He acknowledged that he is a current smoker, and that

his symptoms get worse when he exerts himself but get better

when he uses his inhaler, which he reported using more

frequently. When he was seen in the office a few days later, he

indicated that he had run out of inhalers and nebulizer

solution. Upon examination, his oxygen saturation was 100%. He

had no wheezes, rales, or rhonchi. His provider refilled his

asthma medications and prescribed a Prednisone taper.

II. Procedural Background

On September 24, 2019, Paval filed an application for

disability insurance benefits. Paval alleged a disability onset

date of February 15, 2019, when he was 59 years old, due to knee

pain, back pain, gastritis, chronic respiratory disorders, and

asthma.2

2While Paval mentions his alleged knee and back pain in his motion, he does not challenge any of the ALJ’s findings or provide any legal argument regarding his alleged left knee impairment from a slip and fall in January 2016, back pain, or gastritis. Therefore, the court does not address Paval’s associated symptoms, alleged limitations, or treatments.

6 The Social Security Administration denied Paval’s

application at the initial level and again after a request for

reconsideration. Paval then requested a hearing in front of an

ALJ. On November 9, 2020, the ALJ held a telephonic hearing,

during which Paval testified and was represented by an attorney.3

On November 19, 2020, the ALJ issued an unfavorable

decision. She found that Paval’s asthma constituted a severe

impairment, 20 C.F.R. § 404.1520(c), but that Paval’s other

alleged limitations were nonsevere. The ALJ found that Paval had

not satisfied his burden to prove that his asthma met or

medically equaled the severity of one of the listed impairments

in the Social Security regulations. Id. §§ 404.1520(d),

404.1525, 404.1526.

The ALJ further found that Paval had the RFC “to perform a

full range of work at all exertional levels but with the

following nonexertional limitations”:

the claimant can frequently climb ladders, but should not climb ropes or scaffolds. He can frequently climb ramps and stairs and frequently balance, stoop, kneel, crouch, and crawl. The claimant can only work in an environment that does not include even moderate exposure to potential irritants, such as fumes, odors, dusts, gases, or poorly ventilated areas. He should have no concentrated exposure to extreme temperatures or humidity.

3 Though not pertinent to Paval’s arguments on appeal, an independent vocational expert also testified.

7 Admin. Rec. at 19. In so finding, the ALJ noted that since the

alleged date of onset, Paval “required only conservative

treatment provided by his primary care provider.” Id. at 20. She

elaborated that there is no evidence that he reported to the

emergency room or urgent care due to acute asthmatic

exacerbations, that he was hospitalized, or that he required

specialized care from a pulmonologist “as one would expect if

[his] asthma [was] not well controlled.” Id. The ALJ noted that

Paval experienced one exacerbation in January 2020, which

required a Prednisone taper, but that he was not regularly

prescribed that medication over the relevant period. The ALJ

determined that the “overall conservative nature of [Paval’s]

treatment over the relevant period does not support greater

limitations than those” she identified in her stated RFC. Id.

In determining Paval’s RFC, the ALJ also considered all

medical evidence and prior administrative medical findings in

the record, including the opinions of two state agency

consultants, James Trice, M.D. and Carole Bibeau, M.D. Dr. Trice

opined that Paval had no exertional limitations but should avoid

even moderate exposure to extreme temperatures, humidity, and

pulmonary irritants, and concentrated exposure to wetness. Dr.

Bibeau opined that Paval had no exertional limitations but is

limited to frequent postural maneuvers and should avoid moderate

exposure to extreme cold, humidity, fumes, odors, dusts, gases,

8 and poor ventilation. The ALJ found both doctors’ opinions to be

persuasive, well-supported, and consistent with the evidence in

the record, “including the conservative nature of [Paval’s]

treatment, the overall benign objective findings, and [Paval’s]

own descriptions of his activities of daily living.” Id. at 21.

Neither Dr. Trice nor Dr. Bibeau reviewed the entire medical

record. However, the ALJ found Dr. Bibeau’s opinion “most

persuasive” because she reviewed a greater amount of the

evidence in the record when she completed her report on February

7, 2020. Id. The ALJ also found Dr. Bibeau’s February 2020

opinion to be consistent with the record as a whole, including

the evidence admitted after February 2020. Id.

At Step Four, the ALJ determined that Paval’s RFC does not

prevent him from performing past relevant work as a truck driver

as generally performed in the national economy. Thus, the ALJ

concluded Paval is not disabled. 20 C.F.R. § 404.1520(f).

The Appeals Council denied Paval’s request for review of

the ALJ’s decision, making it the final decision of the Acting

Commissioner for purposes of judicial review. Id. § 422.210(a);

see Sims v. Apfel, 530 U.S. 103, 107 (2000). This action

followed.

DISCUSSION

Paval argues that the ALJ made two errors in her decision.

Paval first contends that the ALJ erred in characterizing his

9 post-onset treatment for asthma as only conservative. Paval does

not claim that the record reflects that he did in fact undergo

more than mere conservative treatment, but instead asserts that

the “lack of treatment” for his asthma since February 2019 is

“directly attributable to [him] not engaging in substantial

gainful activity since the date of onset.” Doc. no. 8-1 at 3.

Paval offers no argument or evidentiary support for this

assertion of direct causation, and the record does not support

such a claim. Paval’s asthma diagnosis significantly predates

the alleged onset date of disability — February 15, 2019.

Between 2013, when he was hospitalized for shortness of breath,

and February 2019, Paval worked for several years as a truck

driver, which included engaging in heavy exertional activities,

despite his asthma. During that same period, he experienced

periodic asthmatic exacerbations, particularly during the spring

when his seasonal allergies flared up. These exacerbations were

managed by his primary care providers with medication and

nebulization. He was not treated by a pulmonologist or other

specialist. He reported to the emergency room in 2013 and 2015

but has not been hospitalized for asthmatic complications since.

As the ALJ stated in her decision, there is a “lack of any

evidence of a significant deterioration of [Paval’s] asthma as

of the alleged onset date of disability.” Admin. Rec. at 20.

Paval testified that he stopped working in February 2019, not

10 because a medical condition compelled him to do so, but because

his truck run was cancelled.

Similarly, between February 15, 2019, and late 2020,

Paval’s asthma was treated with medication and nebulization by

his primary care providers. He did not require hospitalization

or treatment by a pulmonologist or other specialist. He

experienced one exacerbation in January 2020, reporting to his

doctor that he had run out of inhalers and nebulizer solution.

This exacerbation was again treated with medication. Although

Paval was not working during this period, he testified that,

despite his asthma, he was able to walk up and down more than 30

steps, five times a day, in order to leave (and return to) his

third-floor apartment for meals and shopping.

Reviewing the evidence in the record as a whole, Paval has

not demonstrated that the ALJ erred in characterizing his post-

onset treatment for asthma as conservative. Cf., e.g., Crowley

v. Saul, No. 19-cv-650-JL, 2020 WL 615094, at *8 (D.N.H. Feb.

10, 2020) (explaining the ALJ found that claimant “was treated

conservatively with narcotic medication and injections for pain

relief”); Starkweather v. Shalala, No. 94-100-B, 1995 WL 85355,

at *1 (D.N.H. Feb. 21, 1995) (“The cardiologist recommended

conservative treatment with medications but not surgery.”). Nor

has he demonstrated that the ALJ erred in failing to attribute

such conservative treatment directly to his lack of employment.

11 Paval also challenges the ALJ’s reliance on Dr. Bibeau’s

medical opinion as “most persuasive” because her opinion was not

based upon the full medical record. Doc. no. 8-1 at 4 (quoting

Admin. Rec. at 21). “It can indeed be reversible error for an

administrative law judge to rely on an RFC opinion of a non-

examining consultant when the consultant has not examined the

full medical record.” Meldrem v. Colvin, No. 16-cv-156-JL, 2017

WL 2257337, at *2 (D.N.H. May 23, 2017) (quotations and brackets

omitted). “Of course, the fact that an opinion was rendered

without the benefit of the entire medical record does not, in

and of itself, preclude an ALJ from giving significant weight to

that opinion.” Id. (quotation omitted). “An ALJ may yet rely on

such an opinion where the medical evidence postdating the

reviewer’s assessment does not establish any greater

limitations, or where the medical reports of claimant’s treating

providers are arguably consistent with, or at least not clearly

inconsistent with, the reviewer’s assessment.” Id. (quotation

omitted).

Here, Paval does not argue that the ALJ erred in finding

that the medical evidence postdating Dr. Bibeau’s opinion was

consistent with her opinion, and instead points only to the fact

that Dr. Bibeau’s opinion was not based upon the entire record.

That fact alone is insufficient to demonstrate that the ALJ

erred. See id.

12 Moreover, the ALJ acknowledged that Dr. Bibeau did not

review the entire record and found that “the evidence admitted

to the record following her review showed only that the

claimant’s medications have been referred by his primary care

physician and the claimant is due for a primary care annual

visit. Thus, the findings of Dr. Bibeau are consistent with the

record as a whole.” Admin. Rec. at 21. The record supports the

ALJ’s findings. The ALJ did not err in relying upon and

affording great weight to Dr. Bibeau’s opinion. See, e.g., Brown

v. Colvin, No. 14-cv-256-JL, 2015 WL 4416971, at *3 (D.N.H. July

17, 2015) (affirming ALJ’s reliance on non-examining medical

source where ALJ found postdated evidence “remain[ed] consistent

with the record in its entirety”).

CONCLUSION

For the foregoing reasons, Paval’s motion to reverse (doc.

no. 8) is denied. The Acting Commissioner’s motion to affirm

(doc. no. 9) is granted. The clerk of court shall enter judgment

accordingly and close the case.

SO ORDERED.

__________________________ Samantha D. Elliott United States District Judge June 6, 2022 cc: Counsel of Record.