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Mitchell v. Colvin

United States District Court, D. Maine

April 17, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


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, following this court's reversal and remand of an earlier decision at the commissioner's behest, the administrative law judge failed to rectify the error in the handling of a June 30, 2010, residual functional capacity ("RFC") opinion of treating physician Minda Gold, M.D. See Itemized Statement of Errors Pursuant to Local Rule 16.3 Submitted by Plaintiff ("Statement of Errors") (ECF No. 8) at 3-6.[2] I find no reversible error and, accordingly, affirm the commissioner's decision.

In his earlier decision, dated August 20, 2010, the administrative law judge deemed the plaintiff not disabled, stating, in relevant part, that he gave no weight to the 2010 RFC opinion of Dr. Gold because (i) portions appeared to be completed by the plaintiff's wife and only signed by Dr. Gold, (ii) at a minimum, the opinion appeared to be largely based on the self-report of the plaintiff and his wife, and (iii) the limitations set forth therein, for example, lifting/carrying and standing/walking, were internally inconsistent. See Record at 18, 316-23.

The plaintiff appealed that decision to this court, which, by order dated June 14, 2011, remanded the case at the commissioner's behest for further development of the record. See id. at 1023. The court instructed that the case be assigned to an administrative law judge who would be directed to, inter alia, update the record, conduct a new hearing, reevaluate opinions from two of the plaintiff's treating sources, including Dr. Gold, and reconsider statements from both Dr. Gold and the plaintiff's wife indicating that Dr. Gold had completed and signed the opinion. See id. at 1023-24.

The administrative law judge held a hearing on February 2, 2012, during which he admitted new evidence and heard the testimony of the plaintiff, medical experts Peter Webber, M.D., and James M. Claiborn, Ph.D., and vocational expert Sharon R. Greenleaf. See id. at 906, 935-36, 938. He then issued the decision at issue, in which, 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), he found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act through March 31, 2011, Finding 1, Record at 909; that he had severe impairments of persistent ventral hernia, status-post acute respiratory distress syndrome, obesity, affective disorder/major depressive disorder, anxiety disorder/anxiety disorder not otherwise specified, and substance addiction disorder/alcohol abuse, Finding 3, id.; that, if he stopped substance use, he had the RFC to, among other things, lift and carry 20 pounds occasionally and 10 pounds frequently, stand and walk for 20 to 30 minutes at one time before requiring a break, perform that standing or walking activity for up to four hours in an eight-hour workday, and sit for about six hours in a normal workday, but required the ability to change position for one to two minutes between breaks, Finding 13, id. at 921; that, if he stopped substance use, considering his age (34 years old, defined as a younger individual, on his alleged disability onset date, April 28, 2008), 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 7-8, 15-16, id. at 919, 925; and that, because substance use disorder was a contributing factor material to the determination of disability, and the plaintiff would not be disabled if he stopped substance use, he had not been disabled within the meaning of the Social Security Act at any time from his alleged onset date of disability, April 28, 2008, through the date of the decision, February 29, 2012, Finding 17, id. at 925. The Appeals Council declined to assume jurisdiction of the case after remand, id. at 884-87, making the decision the final determination of the commissioner, 20 C.F.R. § 404.984(a)-(b); 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

In her June 30, 2010, RFC opinion, Dr. Gold assessed the plaintiff as capable, among other things, of occasionally lifting and/or carrying 10 pounds, frequently lifting and/or carrying 25 pounds, standing and/or walking with normal breaks for a total of about six hours in an eight-hour workday, sitting with normal breaks for a total of less than six hours in an eight-hour workday, and limited in his ability to push and/or pull with both his upper and lower extremities. See Record at 317. She explained these conclusions as follows:

Take 2 days to cut the grass due to pain/fatigue, bending over with pain. Unable to stack firewood.
[Plaintiff] having chronic pain post surgically with large ventral hernia/abd[ominal] pain. Repair is not an option due to surgical risks.

Id. In the wake of the administrative law judge's August 20, 2010, denial of the plaintiff's application for benefits, Dr. Gold submitted a letter to the plaintiff's counsel dated September 4, 2010, stating:

I have reviewed your recent correspondence regarding [the plaintiff's] disability claim. Additionally, I reviewed the attached decision by [the administrative law judge]. Although I do not have [a] special degree in disability assessment, as a Board Certified Family Physician, I care for and evaluate many patients with disabilities and consider [the plaintiff's] evaluation within my scope of practice.
I personally met with [the plaintiff] and evaluated him after taking a thorough history on a previous visit. Additionally, I reviewed his medical record, hospital records and consultation reports. I filled out the disability paperwork to the best of my clinical ability with [the plaintiff and his wife] in attendance. They did not "check off" any of the ...

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