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Brown v. Colvin

United States District Court, D. Maine

October 22, 2014

RAELENE N. BROWN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDED DECISION [1]

JOHN H. RICH, III, Magistrate Judge.

The plaintiff in this Social Security Disability ("SSD") appeal contends that the administrative law judge wrongly weighed the opinions of her primary care provider, failed to address another medical source's opinion, failed to comply with Social Security Ruling 12-2p, and was required to find her disabled by applying Rule 201.14 in Appendix 2 to 20 C.F.R. Part 404, Subpart P. 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 osteoarthritis of the thumbs, fibromyalgia, diabetes mellitus, and obesity, 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 2 to 20 C.F.R. Part 404, Subpart P (the "Listings"), Findings 3-4, Record at 16-18; that she retained the residual functional capacity ("RFC") for light work except that she could occasionally climb ramps and stairs but never ladders, ropes, or scaffolds, she could occasionally balance, stoop, kneel, crouch, and crawl, could perform no constant handling, and must avoid exposure to cold, vibration, and hazards of unprotected heights and moving machinery, Finding 5, id. at 19; that she was capable of performing her past relevant work, Finding 6, id. at 22; and that, therefore, she had not been under a disability, as that term is defined in the Social Security Act, at any time from April 15, 2010, the amended alleged date of onset of disability, through the date of the decision, March 20, 2012, Finding 7, id. 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).

At Step 4 of the sequential evaluation process, the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. § 404.1520(f); Bowen, 482 U.S. at 146 n.5. 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); SSR 82-62, reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.

I. Discussion

A. Treating Physician

The plaintiff first contends that the administrative law judge should have given more weight to the opinions of her primary care provider. Plaintiff's Statement of Errors ("Itemized Statement") (ECF No. 15) at 4-7. She sets out consistencies between the limitations assigned to her by Mark Worthing, M.D., her primary care physician, and those of Dr. Lee Kendall, who was treating her for fibromyalgia, as well as the entries in Dr. Kendall's notes that she perceives as filling the void in Dr. Worthing's notes identified by the administrative law judge, and concludes that the administrative law judge was, as a result, required to give more weight than she did to Dr. Worthing's opinions.

Dr. Worthing's opinions are set forth on a form, titled "Treating Source Statement-RFC, " prepared by the office of the plaintiff's attorney. Record at 388-92. Dr. Worthing restricts the plaintiff to eight hours of work per week in two-hour shifts. Id. at 389.

The administrative law judge said of Dr. Worthing's assigned limitations, as checked on the form, that

[l]ittle weight has been accorded a February 2012 residual functional capacity (RFC) form submitted by Dr. Worthing. Although he is a longterm treating provider, his assessment is not supported by the accompanying clinical record. For instance, he opined, in part, that because of the claimant's impairments, she could rarely lift as much as 10 pounds; could not sit or stand for more than 15 to 30 minutes; she could not bend or reach; could not work more than 2 hours at a time or 8 hours per week; she would need frequent, unscheduled breaks and would be absent at least 4 days per month due to her symptoms (Ex. 16F).
By contrast, data from Dr. Worthing show that he saw the claimant for an annual visit in December 2009, where no mention was made of a physical examination or any restrictive parameters. At the next office visit over a year later (January 2011), Dr. Worthing cited no physical issues upon examination, but merely reiterated the claimant's subjective report that she had stopped working due to fibromyalgia. Interestingly, it was also reported, "She is actively losing weight now that she's not working, she is eating better and she is more active with projects around the house" (Exs. 1F, 11F).
Since laboratory tests found diabetes in early 2011, Dr. Worthing has seen the claimant 4 times: in March, April, May and September. Again, these treatment records are not supportive of the stringent parameters that the doctor put forth in his RFC. The claimant completed nutritional counseling and began medication, diet and exercise. She was reported as "pain free" in March; her weight was down 3 pounds in April and she was "doing very well" in May. At her last examination in September 2011, Dr. Worthing said she was extremely well with regard to diabetes, having lost 57 pounds and her "health generally is ...

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