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Baxter v. Colvin

United States District Court, D. Maine

September 27, 2014

JEFFREY JOHN BAXTER, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

REPORT AND RECOMMENDED DECISION [1]

JOHN H. RICH, III, Magistrate Judge.

This Social Security Disability ("SSD") and Supplemental Security Income ("SSI") appeal raises the question of whether the administrative law judge supportably found the plaintiff capable of performing work existing in significant numbers in the national economy. The plaintiff alleges that the administrative law judge's credibility determination and rejection of the opinion of treating source Christopher Jenner, FM-C, are unsupported by substantial evidence. See Itemized Statement of Errors Pursuant to Local Rule 16.3 Submitted by Plaintiff ("Statement of Errors") (ECF No. 10) at 2-8.[2] I find no error and, accordingly, recommend that the court affirm the decision.

Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. §§ 404.1520, 416.920; 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 11; that he had a severe impairment of multilevel degenerative disc disease, Finding 3, id.; that he retained the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that he could not climb ladders, ropes, or scaffolds, could only occasionally balance, stoop, crouch, kneel, crawl, and climb ramps and stairs, and needed to avoid uneven terrain and unprotected heights, Finding 5, id. at 12; that, considering his age (48 years old, defined as a younger individual, on his alleged disability onset date, July 5, 2009, and subsequently turning 50, defined as closely approaching advanced age), education (at least high school), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that he could perform, Findings 7-10, id. at 14-15; and that he, therefore, was not disabled from July 5, 2009, through the date of the decision, August 7, 2012, Finding 11, id. at 16. 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, 416.1481; 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), 1383(c)(3); 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 his past relevant work. 20 C.F.R. §§ 404.1520(g), 416.920(g); Bowen, 482 U.S. at 146 n.5; 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

A. Credibility Determination

The administrative law judge found that the plaintiff's impairments reasonably could be expected to produce his alleged symptoms, but that his statements regarding those symptoms were not credible to the extent inconsistent with the determined RFC, explaining:

X-rays from 2009 revealed degenerative disc disease of the lumbosacral spine. The [plaintiff] was also diagnosed with pancreatic cancer the same year. The [plaintiff] elicited a positive straight leg raise testing on the left and painful range of motion.
In March 2011, an MRI revealed degenerative narrowing of the lumbosacral, cervical, and thoracic spine. However, the [plaintiff] was able to walk independently and had negative straight leg raise testing. He was under no acute distress, and exhibited full grip strength, and movement of the extremities. In June 2011, [he] demonstrated full range of motion of the extremities and was deemed not to be a candidate for surgery. In December 2011, [he] reported doing generally well.
In summary, the medical records are brief and highly duplicative. The lack of treatment on behalf of the [plaintiff] indicates that his allegations are overstated. A light residual functional capacity with postural and environmental restrictions adequately account[s] for the [plaintiff's] demonstrated back pain. According to the record, the [plaintiff's] back pain appeared to improve with medication and treatment in 2011.
The [plaintiff's] reported activities of daily living also diminish the credibility of his allegations. In his function report, [he] stated that he is still able to maintain his personal care, prepare meals, do the dishes, sweep the floor, leave the house daily, drive a car, go shopping in stores, walk, watch television, and visit others. At the hearing, [he] testified that he is able to clean his camper and carry jugs of water to and from his home. These activities of daily living are directly contradictory to [his] allegation that he is unable to work.

Record at 13 (citations omitted).

The plaintiff argues that this assessment is one-sided, selective, and inaccurate. See ...


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