United States District Court, D. Maine
JOHN L. CARVER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM DECISION 
JOHN H. RICH, III, Magistrate Judge.
This Social Security Disability ("SSD") 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 seeks remand on the bases that the administrative law judge erred in declining to credit his testimony fully and in making a residual functional capacity ("RFC") determination unsupported by substantial evidence. See Itemized Statement of Specific Errors ("Statement of Errors") (ECF No. 22) at 6-9. Finding the administrative law judge's decision supported by substantial evidence, I affirm the commissioner's 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 meets the insured status requirements of the Social Security Act through December 31, 2015, Finding 1, Record at 23; that he had a severe impairment of hearing loss of unknown etiology, intermittent, Finding 3, id.; that he retained the RFC to perform a full range of work at all exertional levels but needed to avoid loud noise without hearing protection, environments where auditory warning signals were necessary, and situations requiring constant fine hearing skills or involving constant high conversational tones, Finding 5, id. at 24-25; that, considering his age (58 years old, defined as an individual of advanced age, on his alleged disability onset date, February 9, 2010), education (at least high school), work experience (work skills acquired from past relevant work), and RFC, there were jobs existing in significant numbers in the national economy that he could perform, Findings 7-10, id. at 27-28; and that he, therefore, had not been disabled from February 9, 2010, through the date of the decision, June 6, 2013, Finding 11, id. at 29. 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 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); 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).
The statement of errors also implicates 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, 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); Social Security Ruling 82-62 ("SSR 82-62"), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.
A. Credibility Determination
The administrative law judge found the plaintiff not entirely credible to the extent that he maintained that his fluctuating bilateral hearing loss, in combination with his other physical impairments, prevented him from performing basic work-related activities on a regular and continuing basis. See Record at 25. He explained:
[A]lthough the [plaintiff] may not be performing work as a trial attorney, the evidence of record reveals that he continues to perform legal work on some level. For example, he testified that he continues to work an average of five hours per month on non-litigation issues, including advising local municipalities, and providing legal advice on issues of real estate and wills and estates. However, he also testified that he refers any related trial work to another attorney. Any other legal work that he performed since his alleged onset date, he testified, was referred through friends and family with the knowledge of his hearing limitation. As discussed in detail below, although he may not be able to perform his past relevant work as a trial attorney, there are other jobs in the national economy that he is capable of performing.
Id. He discredited the plaintiff's contention that, as a result of his impairments, he would miss at least three or four workdays during a typical month and be limited to working a maximum of four hours before needing to rest for at least an hour and a half during the workday, which he deemed unsupported by the objective medical findings and the plaintiff's level of daily activity. See id. at 26-27.
With respect to the objective medical findings, the administrative law judge determined, in relevant part, at Step 2:
[T]he [plaintiff's] obesity, degenerative joint disease of the neck, asthma and obstructive airway syndrome have no more than a minimal effect on his ability to perform basic work-related activities on a regular and continuing basis, and are therefore "non-severe" medically determinable impairments.
... [T]reatment records reveal that the [plaintiff's] asthma and obstructive airway syndrome is generally controlled with medication and results in no functional limitations (Exhibit 8F, pp. 11-12, 19-20, 34-35). Although Andrew C. Dixon, M.D. (Dr. Dixon), the [plaintiff's] treating pulmonologist, noted a probable diagnosis of obstructive sleep ...