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Dunning v. Colvin

United States District Court, D. Maine

July 9, 2015



JOHN C. NIVISON, Magistrate Judge.

In this action, Plaintiff Michael A. Dunning seeks disability insurance benefits under Title II of the Social Security Act. Defendant Commissioner found that Plaintiff has severe impairments, but retains the functional capacity to perform substantial gainful activity. Defendant, therefore, denied Plaintiff's request for disability benefits. Plaintiff filed this action to obtain judicial review of Defendant's final administrative decision pursuant to 42 U.S.C. § 405(g).

As explained below, following a review of the record, and after consideration of the parties' arguments, the Court affirms the administrative decision.


The Commissioner's final decision is the June 25, 2013, decision of the Administrative Law Judge (ALJ) (ECF No. 9-2.)[2] The ALJ's decision tracks the five-step sequential evaluation process for analyzing social security disability claims, 20 C.F.R. §§ 404.1520, 416.920.

The ALJ found that Plaintiff has severe, non-listing-level impairments consisting of degenerative disk disease, obesity, and a learning disorder. (ALJ Decision ¶¶ 3, 4.) The ALJ determined that with his impairments, Plaintiff has a residual functional capacity (RFC) to engage in medium work, subject to a variety of postural and environmental limitations; and that Plaintiff can understand, remember, and carry out simple instructions and tasks. (Id. ¶ 5.)

Based on the RFC finding, Plaintiff's vocational profile, and the testimony of a vocational expert, the ALJ concluded that Plaintiff could adjust to work existing in the national economy, including in the representative occupations of retail marker, addressor, and surveillance system monitor. (Id. ¶ 10.) The ALJ noted that the identified jobs were at the light and sedentary level of exertion, and "could be performed even if the adopted RFC were significantly more restrictive." (R. 35.) The ALJ, therefore, found that Plaintiff has not been under a disability from the alleged onset date through the date of decision. (Id. ¶ 11.)


A court must affirm the administrative decision provided that the ALJ applied the correct legal standards and provided that the decision is supported by substantial evidence, even if the record contains evidence capable of supporting an alternative outcome. Manso-Pizarro v. Sec'y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per curiam); Rodriguez Pagan v. Sec'y of HHS, 819 F.2d 1, 3 (1st Cir. 1987). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a finding. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981). "The ALJ's findings of fact are conclusive when supported by substantial evidence, but they are not conclusive when derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts." Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).


Plaintiff argues that the ALJ failed to consult a medical expert and mischaracterized the medical records in order to find only three severe impairments. (Statement of Errors at 5-7.) Plaintiff maintains that this step 2 error was prejudicial because additional severe impairments, which Plaintiff argues were established by the record evidence, would have further restricted his work capacity. (Id. at 7-8.) Plaintiff also argues that the ALJ effectively judged matters entrusted to experts when he assessed Plaintiff's RFC, and failed to provide a function-by-function assessment when he rejected the treating source opinion of Heather Sharkey, D.O. (Id. at 8-12.) Finally, Plaintiff contends that he did not receive a fair hearing because the ALJ abruptly discontinued the hearing when Plaintiff's representative asked questions of the vocational expert, which questions the vocational expert refused to answer. (Id. at 12-13.)

A. The Administrative Hearing

Preliminarily, the Court concludes that the record does not support Plaintiff's contention that the ALJ deprived him of a full and fair opportunity to question the vocational expert. Rather, the record demonstrates that Plaintiff's representative challenged the foundation upon which the vocational expert relied to support her opinions regarding certain occupations. The ALJ permitted reasonable inquiry into the matter, and the vocational expert responded to questions posed by Plaintiff's representative. Although the ALJ suggested that he would not permit the representative to continue questioning on that topic for another half hour, he did not preclude relevant questioning and the representative ...

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