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Davis v. Colvin

United States District Court, D. Maine

June 25, 2015

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


JOHN H. RICH III, Magistrate Judge.

The plaintiff in this Social Security Disability (SSD) and Supplemental Security Income (SSI) appeal contends that the administrative law judge assigned her a residual functional capacity ("RFC") that was not supported by substantial evidence in either its physical or its mental assessments, and that the testimony of the vocational expert was fatally flawed. I affirm the commissioner's decision.

In accordance with the commissioner's sequential evaluation process, 20 C.F.R. §§ 404.150, 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 for purposes of SSD only through June 30, 2010, Finding 1, Record at 12; that she suffered from asthma, right shoulder impingement, an affective disorder, and an anxiety-related disorder, impairments that were severe but which, considered separately or in combination, did not meet or medically equal the criteria of any of the impairments listed in Appendix 1 to 20 C.F.R. Part 404, Subpart P (the "Listings"), Findings 3-4, id. at 12-13; that she retained the RFC to perform light work, except that she could not climb ladders, ropes, or scaffolds, could not push or pull with the right upper extremity, could climb stairs or ramps, balance, stoop, kneel, crawl, or crouch only occasionally, could not work overhead with the right upper extremity, could not reach or handle more than frequently with the right upper extremity, could not work in concentrated exposure to extreme temperatures, humidity, fumes, odors, dust, gases, poor ventilation, etc., could only understand, remember and carry out simple, repetitive instructions, and could not work with the general public, work in close proximity with groups of more than six, or adapt to other than routine changes in the work setting, Finding 5, id. at 15; that she was unable to perform any past relevant work, Finding 6, id. at 23; that, given her age (30 on the date of alleged onset of disability), at least high school education, work experience, and RFC, use of the Medical-Vocational Rules in Appendix 2 to 20 C.F.R. Part 404, Subpart P (the "Grid") as a framework for decision-making led to the conclusion that there were jobs existing in significant numbers in the national economy that the plaintiff could perform, Findings 7-10, id. at 23-24; and that, therefore, she had not been under a disability, as that term is defined in the Social Security Act, at any time from the alleged date of onset, September 1, 2008, through the date of the decision, March 28, 2013, Finding 11, id. at 25. 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, 416.1981; 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 her 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

A. Physical RFC

The plaintiff contends that the administrative law judge included in her RFC physical limitations that were not supported by medical opinion "or other evidence, " and which must therefore have been based on her own, improper lay assessment of the medical evidence. Plaintiff's Itemized Statement of Errors ("Itemized Statement") (ECF No. 11) at 5. She faults the administrative law judge for failing to describe how she derived each of the specific components of the physical RFC from specific sources in the record. Id. at 5-6.

The two decisions of this court cited by the plaintiff in support of this argument, however, do not require that level of detail in an administrative law judge's opinion. Neither requires that an administrative law judge explain how each of the components of an assigned RFC was drawn from a specific source in the record.[2] In Staples v. Astrue, Civil No. 09-440-P-S, 2010 WL 2680527 (D. Me. June 29, 2010), the administrative law judge supportably rejected an RFC opinion by the plaintiff's retained expert, leaving no other expert RFC opinion in the record that "she could conveniently adopt as her own[, ]" and, while it was possible that she had derived the components of her RFC from other sources in the record, her failure to explain how she had done so led to remand. Id. at *3-*4. In Seymour v. Barnhart, No. 02-197-B-W, 2003 WL 22466174 (D. Me. Oct. 31, 2003), there was only one mental RFC assessment in the record, and the administrative law judge did not state whether he rejected it or chose from it to craft an RFC. Because the "substantiality of the evidence supporting the commissioner's Step 5 finding hinged on the accuracy of the data transmitted via hypothetical questions to the vocational expert[, ]" the court remanded for reconsideration of the mental RFC. Id. at *4.

The plaintiff identifies only her shoulder impairment, found to be severe by the administrative law judge, Record at 12, as an instance in which she alleges that the administrative law judge "simply crafted the physical components of her RFC finding from whole cloth." Itemized Statement at 6-7. The RFC assigned to the plaintiff by the administrative law judge included limitations of inability to perform work that required her to push or pull with the right upper extremity, or to work overhead with the right upper extremity. Record at 15. The administrative law judge noted that the plaintiff "testified that she... had difficulty reaching with and using her right upper extremity." Id. at 17. She added:

The claimant alleges that her ability to work is limited by a right shoulder impairment. The record reveals that she did injure the shoulder in June 2009 and had a grade I, borderline grade II shoulder separation. Her symptoms were thought to be excessive compared to the objective findings. After an MRI revealed arthropathy in the right shoulder, she was assessed as having an impingement syndrome in the right shoulder although examinations and films provided no evidence of radiation into the right upper extremity and she was found to be neurovascularly intact. Despite the dearth of strong objective findings by films or examinations by multiple practitioners, the claimant underwent surgery on February 26, 2010.
Treatment notes from her primary care physician at Sebasticook Family Doctors in August 18, 2010 reveal that the claimant reported only intermittent aching pain in the shoulder although it was allegedly worsening. The claimant had alleged the pain was aggravated by movement and pushing and relieved by rest. Associated symptoms allegedly included decreased mobility, difficulty going to sleep, instability, night pain, night-time awakening, tenderness and weakness. However, she denied bruising, crepitus, limping, numbness, popping, spasms, swelling and tingling in the arms. The undersigned notes that this description of her shoulder pain is the same as those provided since February 23, 2010, just prior to her surgery. Thus, the description appears to be merely a carryover notation from the earlier dated that was not changed to reflect the claimant's actual later allegations following surgery. Even if the description of her allegations did reflect ongoing difficulty, examination revealed no signs of impairment, objective or otherwise. Although tenderness was found in September 2010, it was not found during an examination in October 2010. The record contains no later treatment notes regarding the claimant's physical complaints until July 2012.... The undersigned also notes that active medications did not include any opiates or other pain medications after September 2010 until July 2012, some[]time after the claimant moved and obtained a new primary care practitioner. The treatment notes after October 2010 contain no reports that signs of impairment in the shoulder, objective or otherwise, were observed. The absence of any treatment notes or pain medication from September 2010 to July 2012 and the absence of any observed signs of impairment after October 2010 weighs heavily against the claimant's credibility.

Id. at 19. For the period after July 2012, the administrative law judge noted:

The claimant transferred her primary care to Northwoods Healthcare in June 2012. The claimant's shoulder impairment and pain medications were not mentioned during the intake report. However, on July 24, 2012 the claimant sought night-time pain medication for her right shoulder that was allegedly still painful to sleep on after orthopedic surgery. Although examination revealed no signs of impairment, objective or otherwise, the examining nurse practitioner prescribed hydrocodone. The nurse practitioner's report indicates that she believed she was ...

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