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Waddell v. Colvin

United States District Court, D. Maine

April 14, 2015

DAVID WADDELL, 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") 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's physical residual functional capacity ("RFC") finding was marred by his misinterpretation of two reports of an agency examining consultant, Robert Klotz, P.A., and his erroneous rejection of the opinion of the plaintiff's examining consultant, orthopedic surgeon Robert N. Phelps, Jr., M.D. See Plaintiff's Itemized Statement of Errors ("Statement of Errors") (ECF No. 13) at 4-14. I find no reversible error and, accordingly, 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 met the insured status requirements of the Social Security Act through September 30, 2014, Finding 1, Record at 13; that he had severe impairments of obesity, diabetes mellitus II, degenerative disc disease at L3-L4 with minor end-plate osteophyte formation, minor facet hypertrophy at L4-L5, and acute lumbar myofascial strain at L5-S1, Finding 3, id.; that he had the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b) except that he could walk for two hours out of an eight-hour day, resting as needed or ceasing walking if chest pain developed, could stand for six hours in an eight-hour day and sit for six hours in an eight-hour day, and needed to be allowed to stand and stretch for five-minute breaks between normal breaks, adjust his seat position as needed, and alternate sitting and standing at will, Finding 5, id. at 15; that, considering his age (47 years old, defined as a younger individual, on his alleged disability onset date, March 4, 2009), 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 19; and that he, therefore, had not been disabled from March 4, 2009, through the date of the decision, October 11, 2012, Finding 11, id. at 20. 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).

I. Discussion

A. Handling of Klotz Report

P.A. Klotz examined the plaintiff on July 19, 2010, and again on February 11, 2011. See Record at 299-301, 331-33. There was little change in his findings on examination or his opinion as to the plaintiff's RFC. See id. He noted that the plaintiff had lordosis in his back as well as "some point tenderness at the left lumbar paravertebral musculature." Id. at 300, 332. He found the plaintiff's range of motion and strengths (4 on a 5 scale) intact and equal bilaterally and added:

He is able to squat and rise from that fully squatted position. Forward flexion, extension, side bending, rotation of the lumbar and cervical spine were normal. Gait is normal and he is able to toe and heel walk though reportedly with some increase in back discomfort.

Id. He concluded:

At this point, primarily related to his obesity, potential hypertension and lack of conditioning, I would limit him to lifting and carrying as well as pushing and pulling no more than 30 pounds on an occasional basis.
Some work hardening would be indicated. In light of that I would currently restrict him to no more than two hours in each of the following positions: Sitting, standing and walking. I do not see any clear postural limitation or any restriction on fine or gross motor functions. His ability to hear and speak is intact.

Id. at 301; see also id. at 333.[2]

With the benefit of review of the initial Klotz report, agency nonexamining consultant Iver C. Nielson, M.D., completed an RFC assessment dated August 5, 2010, in which he indicated that the plaintiff was capable of standing and/or walking with normal breaks for a total of about six hours in an eight-hour workday and sitting with normal breaks for about six hours in an eight-hour workday, although he needed to periodically alternate sitting and standing to relieve pain or discomfort. See id. at 319. He checked a box indicating that Klotz's conclusions were significantly different from his, explaining that Klotz's restrictions were "too harsh" in view of Klotz's normal findings on examination. See id. at 324. He also stated that the plaintiff had self-imposed standing/sitting limitations that were not fully supported by the objective evidence. See id. at 323.

With the benefit of review of both Klotz reports, agency nonexamining consultant Donald Trumbull, M.D., completed an RFC assessment dated March 3, 2011, in which he assessed the same sitting, standing, and walking capacities as had Dr. Nielson, with a need to stand for five minutes hourly between normal breaks and adjust sitting position as needed. See id. at 351. Unlike Dr. Nielson, he did not indicate that there was any medical source conclusion that was significantly different from his. See id. at 356. However, he noted that, in Klotz's second report, he had questioned the reliability of the plaintiff's history. See id. at 357. He also stated that his [Dr. Trumbull's] RFC assessment was "consistent with the objective evidence." Id.

Dr. Phelps submitted an RFC assessment dated May 17, 2012, to which he attached a report of a complete general medical physical examination of the same date. See id. at 415-23. He found, inter alia, that the plaintiff could sit for about six hours in an eight-hour workday but could only stand ...


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