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Starrett v. Colvin

United States District Court, D. Maine

June 29, 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 returning to past relevant work as a customer service representative. The plaintiff seeks remand on the basis that the administrative law judge made a flawed residual functional capacity ("RFC") determination when he ignored an opinion of a treating physician, William A. Ollar, D.O., that had been prepared to rebut the opinion of an examining physician, Jane Glass, D.O., to which he gave significant weight, wrongly accorded great weight to the "brief[, ] conclusory assessments" of two agency nonexamining consultants, Carol Eckert, M.D., and Benjamin Weinberg, M.D., and went on to determine the plaintiff's RFC based on his own lay interpretation of the raw medical evidence. See Itemized Statement of Specific Errors ("Statement of Errors") (ECF No. 24) at 8-10. 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 December 31, 2015, Finding 1, Record at 88; that he engaged in substantial gainful activity for several periods postdating his alleged onset date of disability, specifically, from July 2010 to November 2010, April 2011 to May 2011, and October 2011 through the date of the decision, November 13, 2012, Finding 2, id.; that there had been a continuous 12-month period(s) during which the plaintiff did not engage in substantial gainful activity, and that the administrative law judge's remaining findings addressed those period(s), Finding 3, id. at 89; that the plaintiff had severe impairments of lumbar degenerative disc disease and left elbow epicondylitis, status-post surgery, Finding 4, id. at 90; that he had the RFC to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) except that he could stand for two hours and sit for six hours in an eight-hour workday with normal breaks, could occasionally lift 10 pounds, or push and pull, with his left upper extremity, could frequently reach in all directions, handle, and finger with his left upper extremity, could occasionally operate foot controls with his right lower extremity, [2] could never climb ladders, ropes, or scaffolds, could occasionally climb ramps and stairs, could occasionally balance, stoop, kneel, crouch, and crawl, needed to avoid even moderate exposure to unprotected heights and hazardous machinery, and required the ability to change position from sitting to standing on an hourly basis for one to two minutes to stretch, but could stay on task during that time, Finding 6, id. at 92; that he was capable of performing past relevant work as a customer service representative, which did not require the performance of work-related activities precluded by his RFC, Finding 7, id. at 96; and that he, therefore, had not been disabled from July 23, 2008, his alleged date of onset of disability, through the date of the decision, November 13, 2012, Finding 8, id. at 98. 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 4 of the sequential evaluation process, at which stage the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. § 404.1520(f); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). At this step, the commissioner must make findings of the plaintiff's RFC and the physical and mental demands of past work and determine whether the plaintiff's RFC would permit performance of that work. 20 C.F.R. § 404.1520(f); Social Security Ruling 82-62 ("SSR 82-62"), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.

I. Discussion

In determining the plaintiff's RFC, the administrative law judge explained his resolution of conflicts in the opinion evidence as follows:

In reaching this Finding, the undersigned gives significant weight to the assessment of Dr. Glass, that the [plaintiff] was able to work with limitations in overhead work, and could lift 70 pounds. Dr. Glass is an examining source and this assessment is based on examination and testing of the [plaintiff], and is consistent with his return to work in construction and operating a forklift. However, based on the [plaintiff's] credible testimony that these jobs were difficult for him, the undersigned finds that [he] is more limited, as indicated in the [RFC] assessed in this Finding. Dr. Glass's assessment also was prior to the onset of the [plaintiff's] elbow pain, and therefore does not account for limitations due to this physical impairment.
The undersigned gives great weight to the State agency medical consultants' assessments, that the [plaintiff] is limited to work at the medium exertional level, with additional postural and manipulative limitations. However, as explained above, the undersigned finds the [plaintiff] limited to work at the sedentary exertional level based on his work history and his credible testimony that he found the construction and forklift jobs to be too physically strenuous.

Record at 96 (citations omitted).

As the commissioner persuasively argues, see Opposition at 4-5, the administrative law judge committed no error in ignoring the opinion of Dr. Ollar because it is irrelevant. Dr. Glass evaluated the plaintiff at the request of an insurance company case manager to address "[a] question regarding if his current low back complaints relate to his chronic low back pain versus a reported work injury on 07/23/2008." Record at 326. She was also asked to provide opinions on, inter alia, his functional capacity and work capacity. See id. [3]

Following examination and a review of medical records, see id. at 326-32, Dr. Glass concluded that it was "questionable if [the plaintiff] sustained a lumbar muscular strain at work on 07/23/2008[, ]" id. at 333. She stated, with respect to the plaintiff's functional capacity, that she "would limit him from doing any loaded or repetitive work above shoulder level secondary to his facet joint hypertrophy" and that, based on a "BTE [brand] [functional capacity] evaluation" of "his maximum safe lift at two levels[, ]" he "was easily able to lift 70 pounds floor to waist and 70 pounds waist to shoulder" and "easily pushed 100 pounds and pulled 80 pounds[, ]" capacities in "the OSHA Heavy category." Id.

In the April 28, 2009, note on which the plaintiff relies, Dr. Ollar did not dispute the findings of Dr. Glass to which the administrative law judge gave significant weight - that the plaintiff was able to work with limitations in overhead work and could lift 70 pounds - but, rather, her conclusion that, for purposes of the plaintiff's then-pending workers' compensation claim, it was questionable whether his pain and functional limitations were attributable to a July 23, 2008, workplace injury rather than a preexisting condition. See id. at 360 (statements by Dr. Ollar that the plaintiff had been able to work prior to July 23, 2008, with his chronic low back pain but not afterward and that, "I feel that his pain is diskogenic in nature due to new findings of his disk disease at 3 and 4 that could have quite readily occurred on the day of his accident on 07/23/2008.").

As the commissioner points out, see Opposition at 5, Dr. Ollar did not dispute Dr. Glass's finding that the plaintiff could work with limitations in overhead reaching, and he admitted that the BTE evaluation indicated that the plaintiff's lifting capacity was in the OSHA heavy category, see Record at 360 ("Yes, he was able to do OSHA heavy lifting category BTE ...

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