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Gagnon v. Colvin

United States District Court, District of Maine

June 25, 2014

DEBORAH GAGNON, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

Plaintiff DEBORAH GAGNON represented by FRANCIS JACKSON JACKSON & MACNICHOL

Defendant SOCIAL SECURITY ADMINISTRATION COMMISSIONER represented by CHRISTOPHER L. POTTER SOCIAL SECURITY ADMINISTRATION OFFICE OF GENERAL COUNSEL JOHN F. KENNEDY FEDERAL MOLLY E. CARTER SOCIAL SECURITY

REPORT AND RECOMMENDED DECISION [1]

John H. Rich III United States Magistrate Judge

The plaintiff in this Social Security Disability (“SSD”) appeal contends that the administrative law judge provided an inadequate explanation of his reasons for rejecting the opinion of her treating physician and presented an erroneous hypothetical question to the vocational expert who testified at the hearing. I recommend that the court affirm the commissioner’s decision.

In accordance with 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 suffered from degenerative disc disease of the lumbar spine complicated by obesity, affective disorder/depression, and anxiety-related disorder/anxiety NOS (Not Otherwise Specified), impairments that were severe but which, considered separately or in combination, did not meet or medically equal the criteria of any impairment listed in Appendix 1 to 20 C.F.R. Part 404, Subpart P (the “Listings’), Findings 3-4, Record at 12-13; that she retained the residual functional capacity (“RFC”) to perform light work except that she could occasionally balance, stoop, kneel, crouch, and crawl, she could occasionally climb ramps, stairs, ladders, ropes, and scaffolds, she could understand and remember simple instructions and could execute simple tasks on a consistent basis, she could interact with coworkers and supervisors but not with the general public, and she could adapt to occasional changes in the workplace, Finding 5, id. at 15; that she was unable to perform any past relevant work, Finding 6, id. at 18; that, given her age (50 on the date of alleged onset of disability, March 30, 2010), at least high school education, work experience, and RFC, and using the Medical-Vocational Rules in Appendix 2 to 20 C.F.R. Part 404, Subpart P (the “Grid”) as a framework for decision-making, there were jobs existing in significant numbers in the national economy that the plaintiff could perform, Findings 7-10, id. at 19; and that, therefore, the plaintiff had not been under a disability, as that term is defined in the Social Security Act, at any time from March 30, 2010, through the date of the decision, August 1, 2012, Finding 11, id. at 20. The Appeals Council declined to review the decision, id. at 1-3, making it 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 5 of the sequential evaluation process, at which stage the burden of proof shifts to the commissioner to show that a claimant can perform work other than her past relevant work. 20 C.F.R. § 404.1520(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the commissioner’s findings regarding the plaintiff’s RFC to perform such other work. Rosado v. Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

I. Discussion

The plaintiff asserts that the administrative law judge’s assessment of the opinion of Dr. Graf, her treating orthopedic surgeon, “does not bear scrutiny.” Plaintiff’s Itemized Statement of Errors (“Itemized Statement”) (ECF No. 15) at 5. This is so, she says, because the reasons given by the administrative law judge are not supported by substantial evidence. Id.

The administrative law judge discussed Dr. Graf in considerable detail:

Significantly, the record shows no medical treatment in more than a year. The claimant was treated four times by Frank Graf, M.D. in later 2010 and early 2011, and she then went nearly 18 months before she was examined again by the orthopaedist in May 2012 (Exs. 4F, 9F).
* * *
As for the opinion evidence, Dr. Graf has provided a number of opinions as to the claimant’s assessed capacity, both physical and psychological (Exs. 7F, 8F, 9F, 11F). However, despite the fact that he has treated the claimant, the undersigned has given no weight to these assessments, because they are inconsistent with and unsupported by the longitudinal objective evidence.
More specifically, despite functional assessments that Dr. Graf provided two months ago (May 2012) at the request of the claimant’s attorney (Exs. 8F, 9F), the record more accurately shows that he had not conducted a physical examination of the claimant’s back in almost a year and a half, since January 2011 (Ex. 4F). At that time, the extent of his clinical report was as follows: “Deborah has pain on at [sic] lumbar levels L3-4 and L4-5 to ...

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