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Flood v. Colvin

United States District Court, D. Maine

June 28, 2015

WAYNE NEIL FLOOD, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

MEMORANDUM DECISION [1]

JOHN H. RICH, III, Magistrate Judge.

This 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 bases that the administrative law judge failed to specify, as part of her residual functional capacity ("RFC") determination, whether needed breaks from standing or walking should be taken away from the workstation and improperly evaluated "drug seeking behavior" in assessing his credibility. See Itemized Statement of Specific Errors ("Statement of Errors") (ECF No. 14) at 5-8. I find no error and, accordingly, affirm the commissioner's decision.

Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 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 had severe impairments of degenerative disc disease of the cervical spine status-post surgery and degenerative disc disease of the lumbar spine, Finding 2, Record at 13; that he retained the RFC to perform light work as defined in 20 C.F.R. § 416.967(b) and was able to lift and carry 10 pounds frequently and 20 pounds occasionally, sit for six hours in an eight-hour day with an ability to change position at will, and stand and walk for at least two hours and up to a maximum of four hours per day, but only in 30-minute intervals before requiring a five- to 10-minute change of position, was unable to climb ladders, ropes, or scaffolds, should avoid hazardous machinery, and could climb ramps and stairs, balance, stoop, crouch, and crawl occasionally, Finding 4, id. at 14; that, considering his age (45 years old, defined as a younger individual, on the date his application was filed, October 26, 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 6-9, id. at 18; and that he, therefore, had not been disabled from October 26, 2010, the date his application was filed, Finding 10, id. at 19, to the date of the decision, June 25, 2013, 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. § 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. § 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. § 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. RFC Determination

The plaintiff first complains that the administrative law judge failed to specify the nature of position changes that she found he required after standing or walking for 30 minutes. See Statement of Errors at 5-7. He asserts that the error was not harmless because, at his hearing, the vocational expert testified that there were jobs available for a person requiring a position change from standing or walking "of 5 to 10 minutes with sitting[, ]" but no available jobs if "the necessary position for five to ten minutes that the person would have to assume is going to be lying down for relief of pain such that basically they're going to have to be removed from the workstation for that period." Id. at 6-7 (quoting Record at 59, 61).

I find no error. First, as the commissioner notes, see Defendant's Opposition to Plaintiff's Itemized Statement of Errors ("Opposition") (ECF No. 15) at 5, the plaintiff cites no authority for the proposition that an administrative law judge must specify the type of break a claimant requires. Instead, he cites authority for the proposition that an administrative law judge must specify the frequency of a need to alternate sitting/standing. See Statement of Errors at 6. In this case, the administrative law judge did so. In any event, as the commissioner argues, see Opposition at 5, that duty arises only with respect to claimants capable of performing a range of sedentary work, not light work, as was found in this case, see, e.g., Levesque v. Astrue, Civil No. 09-331-B-W, 2010 WL 2076013, at *3-*4 (D. Me. May 20, 2010) (rec. dec., aff'd June 18, 2010).

Second, the plaintiff fails to demonstrate that the administrative law judge erred in not specifying that he would have to lie down or leave his workstation during breaks. As counsel for the commissioner noted at oral argument, the administrative law judge implicitly rejected any such need. She gave great weight to the testimony of William Hall, M.D., the impartial medical expert who testified at hearing. See Record at 16. However, as the plaintiff acknowledges, Dr. Hall did not specify that the plaintiff needed to lie down or leave his workstation during breaks. See Statement of Errors at 6. To the contrary, Dr. Hall indicated that, "after five to ten minutes of sitting, [the plaintiff] would be able to resume standing and walking within the two to four hour total of a whole day[.]" Record at 56. He added that the plaintiff also needed to be able to change position while sitting, stating: "He must be able to change position in place at will to... either prevent or... interrupt low back pain." Id. (emphasis added). Finally, in response to the administrative law judge's query, "When standing or walking, he can't stand or walk for more than 4 hours in a day and no more than 30 minutes at one time before he requires 5 to 10 minutes of sitting?" Dr. Hall stated: "That's correct, or... a change in position[.]" Id. at 57.

At oral argument, the plaintiff's counsel contended that the testimony quoted from page 57 introduced ambiguity as to the nature of the position change required. However, Dr. Hall's testimony as a whole simply cannot be read to indicate that the plaintiff had any need to lie down. As counsel for the commissioner rejoined, the only affirmative evidence that the plaintiff needed to lie down was his own testimony, see id. at 44, which the administrative law judge found not entirely credible, see id. at 14-15. The plaintiff's separate challenge to that credibility finding falls flat, for the reasons discussed below.

The plaintiff, accordingly, fails to demonstrate any error in the omission to specify the manner in which he needed to take breaks.

B. Credibility Finding

The plaintiff also argues, see Statement of Errors at 7-8, that the administrative law judge erred in concluding that evidence suggestive of "a history of drug seeking behavior, and/or diversion" tended to ...


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