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Rucker v. Colvin

United States District Court, District of Maine

March 29, 2014

KENNETH LEE RUCKER, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

PLAINTIFF KENNETH LEE RUCKER REPRESENTED BY DANIEL W. EMERY

Defendant SOCIAL SECURITY ADMINISTRATION COMMISSIONER represented by JASON W. VALENCIA SOCIAL SECURITY ADMINISTRATION OFFICE OF GENERAL COUNSEL JOHN F. KENNEDY FEDERAL, NATASHA OELTJEN SOCIAL SECURITY ADMINISTRATION OFFICE OF GENERAL COUNSEL, REGION I

REPORT AND RECOMMENDED DECISION [1]

JOHN H. RICH III UNITED STATES MAGISTRATE JUDGE

This Social Security Disability (“SSD”) appeal raises the question of whether the administrative law judge supportably found the plaintiff capable of performing past relevant work as an auto salesperson, motorcycle salesperson, and salesperson/general merchandise. The plaintiff seeks reversal and remand on the bases that the administrative law judge (i) failed to evaluate his obesity in accordance with Social Security Ruling 02-1p (“SSR 02-1p”), (ii) improperly rejected an opinion of treating physician Charles Burns, M.D., and (iii) erred in evaluating his credibility. See Itemized Statement of Errors Pursuant to Local Rule 16.3 Submitted by Plaintiff (“Statement of Errors”) (ECF No. 8) at 2-8. I find no reversible error and, accordingly, recommend that the court affirm the decision.

Pursuant to the commissioner’s sequential evaluation process, 20 C.F.R. § 404.1520; Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the administrative law judge found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act through December 31, 2012, Finding 1, Record at 16; that he had severe impairments of degenerative disc disease involving facet joint disease of the lumbar spine, obesity, emphysema, and sleep apnea, Finding 3, id.; that he retained the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b) except that he could not climb ladders, ropes, or scaffolds, could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs, could not frequently reach overhead, and could not work in concentrated exposure to respiratory irritants, Finding 5, id. at 18; that he was capable of performing past relevant work as an auto salesperson, motorcycle salesperson, and salesperson, general merchandise, which did not require the performance of work-related activities precluded by his RFC, Finding 6, id. at 21; and that he, therefore, was not disabled from May 1, 2008, his alleged onset date of disability, through the date of the decision, January 19, 2012, Finding 7, id. at 21. The Appeals Council declined to review the decision, id. at 1-3, making the decision the final determination of the commissioner, 20 C.F.R. § 404.981; Dupuis v. Secretary of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).

The standard of review of the commissioner’s decision is whether the determination made is supported by substantial evidence. 42 U.S.C. § 405(g); Manso-Pizarro v. Secretary of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

The administrative law judge reached Step 4 of the sequential evaluation process, at which stage the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. § 404.1520(f); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). At this step, the commissioner must make findings of the plaintiff’s RFC and the physical and mental demands of past work and determine whether the plaintiff’s RFC would permit performance of that work. 20 C.F.R. § 404.1520(f); Social Security Ruling 82-62, reprinted in West’s Social Security Reporting Service Rulings 1975-1982, at 813.

I. Discussion

A. Asserted Failure To Evaluate Obesity Properly

The administrative law judge’s discussion of the plaintiff’s severe impairment of obesity consisted of the following:

While the claimant is obese . . ., he has not asserted with particularity how his obesity affects his residual functional capacity beyond extreme fatigue and pain. The medical expert [Peter Webber, M.D.] testified this is a pain case with obesity and deconditioning, acknowledged the pain determination was “very subjective”, that central and obstructive sleep apnea was established with a “mixed” cause of “maybe medication and obesity”; but in any event, found “no fault” with the DDS [Disability Determination Services] opinion [that of J.H. Hall, M.D.].

Record at 20 (citation omitted).

The plaintiff argues that, in contravention of SSR 02-1p, which requires an individualized assessment of the effects of obesity, the administrative law judge failed to explain how, if at all, he took the condition into account. See Statement of Errors at 2-3; SSR 02-1p, reprinted in West’s Social Security Reporting Service Rulings 1983–1991 (Supp. 2013), at 257 (“An assessment should . . . be made of the effect obesity has upon the individual’s ability to perform routine movement and necessary physical activity within the work environment. Individuals with obesity may have problems with the ability to sustain a function over time. . . . In cases involving obesity, fatigue may affect the individual’s physical and mental ability to sustain work activity. This may be particularly true in cases involving sleep apnea.”).

He argues that the error was not harmless because (i) the administrative law judge improperly rejected Dr. Burns’ opinion that he was unable to complete a normal work schedule without undue interruptions and absences due to factors that included pain and fatigue, (ii) as the administrative law judge acknowledged, he testified to extreme fatigue and pain, and (iii) SSR 02-1p acknowledges that fatigue may limit an obese person’s ability to sustain work activity, particularly in cases in which a claimant is diagnosed with sleep apnea, and that obesity may exacerbate pain and limitations from arthritis affecting a weight-bearing joint. See Statement of Errors at 3-4; SSR 02-1p at 257 & n.5. He analogizes his case to Kaylor v. Astrue, No. 2:10-cv-33-GZS, 2010 WL 5776375 (D. Me. Dec. 30, 2010) (rec. dec., aff’d Feb. 7, 2011), and Fothergill v. Astrue, No. 2:11-cv-247-DBH, 2012 WL 1098444 (D. Me. Mar. 29, 2012) (rec. dec., aff’d ...


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