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Skidgel v. Colvin

United States District Court, D. Maine

April 14, 2015

TERRY SKIDGEL, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

MEMORANDUM 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 seeks remand on the basis that the administrative law judge erroneously relied on a residual functional capacity ("RFC") assessment by agency nonexamining consultant Benjamin Weinberg, M.D., that did not purport to evaluate his condition for the entire relevant period. See Plaintiff's Itemized Statement of Errors ("Statement of Errors") (ECF No. 12) at 6-7.[2] I find no error and, accordingly, affirm the commissioner's 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, 2011, Finding 1, Record at 13; that he had a severe impairment of a history of right clavicular fracture with revascularization, Finding 3, id.; that he had 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 engage in forceful pushing or pulling with his right upper extremity, could not climb ladders, ropes, or scaffolds, could occasionally crawl, could occasionally reach overhead with his right arm, could not carry anything on or above his right shoulder, needed to avoid unprotected heights, and could not use vibrating tools with his right upper extremity, Finding 5, id. at 14; that, considering his age (41 years old, defined as a younger individual, on his alleged disability onset date, January 16, 2010), 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 16; and that he, therefore, had not been disabled from January 16, 2010, through the date of the decision, March 4, 2013, Finding 11, id. at 17. 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 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

In January 2010, the plaintiff was involved in an accident in which he was thrown from a snowmobile, fracturing his right clavicle. See Record at 359, 417. Initially, "it was decided to treat this in a more conservative fashion nonsurgically." Id. at 417. However, the plaintiff began to complain of increasing discomfort, including numbness, tingling, and burning in his right hand. See id. He was diagnosed with a subclavian artery dissection that required revascularization, which was accomplished on March 16, 2010, using a vein graft from his left leg. See id. at 395, 400. The revascularization was successful, but he continued to complain of pain over his shoulder, which treating physician F. Parke Oldenburg ascribed to "clavicle nonunion" - that is, the failure of the clavicle to heal on its own. See id. at 395-96, 400, 402.

On August 19, 2010, Dr. Oldenburg performed a clavicle nonunion repair; however, this was complicated by hardware failure. See id. at 376. As of October 12, 2010, he expressed hope "that despite the failure of the hardware that he still goes on [to] heal." Id. As of November 29, 2010, he advised that, despite the risk of continuing nonunion of the clavicle, the benefits of removing the implant at that point were outweighed by the risks. See id. at 369. However, on February 22, 2011, after Dr. Oldenburg noted that the plaintiff's clavicle fracture still had not healed, the plaintiff elected to proceed with further surgery. See id. at 490-91. On that date the plaintiff complained of continued pain in his right clavicle, stating that he had tried to return to work as a carpenter but could not do so due to movement in his shoulder, as well as pain in his shoulder with palpation and activities and paresthesias in his hand from the initial trauma. See id.

On March 9, 2011, Dr. Oldenburg performed a surgical repair of the clavicle using fixation and a bone graft from the plaintiff's left femur. See id. at 474-75, 491. As of May 2, 2011, the plaintiff told Dr. Oldenburg that he was doing very well and that the locking and catching previously present in his right shoulder was gone. See id. at 465. He was noted on examination to continue to have some paresthesias consistent with his examination following the snowmobile accident. See id. As of June 22, 2011, the plaintiff noted further improvement, with "almost no pain in his arm." Id. at 461. Dr. Oldenburg stated: "I allow[ed] [the plaintiff] to slowly advance his weightbearing over the next 6 weeks[, ]" noting that "[w]e allowed him to return to work fully at the 6-week interval[, ]" and "[h]e is in agreement with this plan." Id. at 462.

As the plaintiff observes, see Statement of Errors at 2-6, the record contains several medical opinions from different points along the continuum of his recovery:

1. On May 26, 2010, agency nonexamining consultant Lawrence P. Johnson, M.D., found no physical limitations on the basis that, in the wake of the successful revascularization, the plaintiff's shoulder impairment "[s]hould not meet [the] duration requirement." Record at 368; see also, e.g., 20 C.F.R. §§ 404.1509, 416.909 ("Unless [a claimant's] impairment is expected to result in death, it must have lasted or must be expected to last for a continuous period of at least 12 months.").

2. On March 10, 2011, agency nonexamining consultant Antonio Medina, M.D., found the plaintiff limited to lifting and/or carrying 10 pounds, standing and/or walking for about six hours in an eight-hour workday, and sitting for about six hours in an eight-hour workday, with a manipulative limitation in the form of only occasional handling and above-shoulder reaching with his right dominant hand/arm. See Record at 451, 453, 459. In an addendum dated April 5, 2011, Dr. Medina noted:

Additional information that [the plaintiff] underwent repair of non-union of the right clavicle, dominant side on 3-9-2011. The RFC provided [is] from AOD [alleged onset date of disability, January 16, 2010] to 6 months from surgery (10-2011). No ...

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