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Robshaw v. Colvin

United States District Court, D. Maine

June 28, 2015

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


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 bases that the administrative law judge failed to supply a supportable rationale for rejecting a functional assessment conducted by physical therapist Ann Covey and neglected to address a finding by treating physician's assistant Dale Marquis that she could not lift more than five pounds. See Plaintiff's Itemized Statement of Errors ("Statement of Errors") (ECF No. 11) at 3-7.[2] I find no reversible error. Accordingly, I 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, 2008, Finding 1, Record at 17; that she had severe impairments of degenerative disc disease of the lumbar spine, fibromyalgia, obesity, vertigo, and sleep apnea, Finding 3, id. 18; that she had the residual functional capacity ("RFC") to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), except that she could only lift and carry 10 pounds occasionally and lesser amounts frequently, sit for six hours in an eight-hour workday, and stand and walk for two hours in an eight-hour workday, could not climb ladders, ropes, or scaffolds, could occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl, and push or pull with her left lower extremity, could reach, feel, finger, and handle frequently but not constantly, needed to avoid even moderate exposure to fumes, dust, odors, gases, and poor ventilation, needed to avoid work at unprotected heights, and could understand, remember, and carry out simple, repetitive instructions and persist at that level of complexity for eight hours a day, five days a week consistently (due to pain, not depression), Finding 5, id. at 20; that, considering her age (29 years old, defined as a younger individual, on her alleged disability onset date, September 1, 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 she could perform, Findings 7-10, id. at 23; and that she, therefore, had not been disabled from September 1, 2008, through the date of the decision, March 8, 2013, Finding 11, id. at 24. 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 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. Rejection of KEY Functional Assessment

Physical Therapist Covey completed a report dated May 4, 2011, of a KEY Functional Assessment ("KEY Report") in which she indicated, inter alia, that the plaintiff was capable of a five- to six-hour workday and of sitting for five hours in 60-minute durations, standing for three to four hours in 30-minute durations, and walking for two to three hours for occasional, moderate distances. See Record at 643. She stated that the assessment was a valid representation of the plaintiff's physical capabilities "based upon consistencies and inconsistencies when interfacing grip dynamometer graphing, resistance dynamometer graphing, heart rate variations, weights achieved, and selectivity of pain reports and pain behaviors." Id. at 637. She noted that the plaintiff had been "demonstrating full effort." Id. (boldface omitted).

The administrative law judge accorded the KEY Report "some weight" but rejected its limitation to a five- to six-hour workday, stating:

[T]he limitation[] for a 5 to 6 hour workday is inconsistent with the sit, stand and walk statements, which indicate the [plaintiff] could work an 8-hour workday. Furthermore, the [plaintiff] testified that she could sit for 2 hours at a time, before she has to get up and move, thus she could move around during routine breaks and at lunchtime. In addition, it should be noted that this assessment is a Key Functional Assessment, not a Functional Capacity Assessment, and is based on a computer program, which takes into account many factors that we do not consider for social security purposes, such as factoring in the length of time one has been out of work when determining work capacity. Accordingly, the results of this assessment are accorded little weight.

Id. at 22.

The plaintiff challenges the validity of each of these rationales, arguing that the administrative law judge:

1. Wrongly assumed that Covey's separate sitting, standing, and walking limitations were not overlapping and simply added them up to find the plaintiff capable of working an eighthour workday, in contradiction of Covey's further statement that she could work only a five- to six-hour workday. See Statement of Errors at 4;

2. Relied on a misunderstanding or misquotation of the plaintiff's testimony that she could not sit for long periods of time and got uncomfortable "after an hour or two[, ]" at which ...

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