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Sessions v. Colvin

United States District Court, D. Maine

July 20, 2015

BRETT ALLEN SESSIONS, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM DECISION [1]

JOHN H. RICH, III, Magistrate Judge.

In this Social Security Disability ("SSD") appeal, the plaintiff challenges the weight assigned by the administrative law judge to the opinion of a physical therapist, the failure of the administrative law judge to find that his sleep apnea was a severe impairment, and the failure of the administrative law judge to evaluate his obesity as required by Social Security Ruling 02-1p. Because the administrative law judge failed to explain how obesity is accounted for in her residual functional capacity (RFC) assessment of the plaintiff, the commissioner's decision is reversed.

I. The Motion to Remand

In advance of the June 12 oral argument in this case, the defendant's deadline for filing any motion to remand was March 9, 2015. ECF No. 8. The day before that deadline, the defendant filed a motion to extend it to March 20, which was granted. ECF No. 10. The defendant's contested motion to remand did not go under advisement until April 27, one day after the deadline for the defendant's reply memorandum and only about six weeks before oral argument. In a nutshell, the parties' dispute regarding remand revolved around the defendant's willingness to remand on the obesity issue, but not on the opinion of the physical therapist or the sleep apnea question. The plaintiff's counsel argued that "[o]ver the course of many years, the undersigned has agreed... to the vast majority of remand orders proposed by the Commissioner[, ]" Response to Defendant's Motion to Remand (ECF No. 12) at 4, but that in this case, all three issues should be heard on remand "so Plaintiff is not in limbo for the next three years...." Id. The defendant urged this court to apply its decision in Smith v. Astrue, No. 2:12-cv-7-DBH, 2012 WL 4800176 (D. Me. Aug. 29, 2012), and remand on the obesity issue only. I decline both parties' invitation to apply a categorical approach. As noted in Smith, a remand limited to a single issue can "certainly serve judicial economy, " id. at *2, but the plaintiff's concern "about the yo-yo effect that might arise from unnecessarily restrictive voluntary remand orders[, ]" Thibodeau v. Social Sec. Admin. Comm'r, No. 1:10-00371-JAW, 2011 WL 4344561, at *1-*2 & n.2 (D. Me. Sept. 13, 2011), is equally understandable. The issue is best decided on a case-by-case basis depending, inter alia, on the number of contested issues in dispute, the complexity of those issues, and the timeliness of the remand motion. Here, the two narrow additional issues raised by the plaintiff and the temporal proximity to oral argument (approximately six weeks prior) persuaded me to take no action on the defendant's contested motion to remand and hear all three issues at oral argument. Under the circumstances of this case, the court need not reach the motion to remand. That motion accordingly is MOOT.

II. The Appeal

A. Factual Background and Applicable Law

In accordance with 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 only through December 31, 2011, Finding 1, Record at 14; that, through the date last insured, the plaintiff suffered from atrial fibrillation with coronary artery disease, status post cubital tunnel surgeries/ulnar nerve releases bilaterally, left shoulder degenerative joint disease/bursitis status post surgery, deQuervains tenosynovitis bilaterally, and obesity, impairments that were severe but which, considered separately or in combination, did not meet or equal the criteria of any impairment listed in Appendix 1 to 20 C.F.R. Part 404, Subpart P (the "Listings"), Findings 3-4, id. at 15-16; that, through the date last insured, he had the RFC to perform light work, except that he could only occasionally push or pull with the left upper extremity, could never climb ladders, ropes or scaffolds, could occasionally climb ramps and stairs, balance, stop, crouch, kneel, and crawl, could only occasionally reach bilaterally both overhead and in front and laterally, could occasionally finger with the left hand, should avoid work at unprotected heights and use of vibratory tools, and could understand, remember, and carry out simple, repetitive instructions, Finding 5, id. at 16; that, through the date last insured, he was unable to perform any past relevant work, Finding 6, id. at 18; that, given his age (52 on the date last insured), at least high school education, work experience, and RFC, and using the Medical-Vocational Rules in Appendix 2 to 20 C.F.R. Part 404. Subpart P (the "Grid") as a framework for decision-making, there were jobs existing in significant numbers in the national economy before the date last insured that the plaintiff could have performed, Findings 7-10, id. at 19; and that, therefore, the plaintiff 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, October 19, 2007, through the date last insured, Finding 11, id. at 20. 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, 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 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. § 404.1520(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).

B. Discussion

1. Opinion of Examining Physical Therapist

The plaintiff contends that he is entitled to remand because the administrative law judge's opinion "does not adequately account for" the opinion of Nicholas Hodsdon, a physical therapist to whom his primary care physician referred him for an evaluation of his work capacity, to the effect that the plaintiff was limited to occasional static standing and to part-time work up to 5-6 hours per day. Itemized Statement of Errors Pursuant to Local Rule 16.3 Submitted by Plaintiff ("Itemized Statement") (ECF No. 8) at 2. This is the opinion of a physical therapist, who is not an acceptable medical source under Social Security regulations, 20 C.F.R. § 404.1513(a), and may present evidence of the severity of an impairment, but not its existence. 2 C.F.R. § 404.1513(d).

The plaintiff cites no authority in support of his position. The administrative law judge stated that she gave significant weight to the opinion of the state-agency medical consultant. Record at 18. She addressed the physical therapist's opinions directly as follows:

The evaluating physical therapist concedes that clinical observations of functional ability suggests that the claimant could tolerate employment with light physical demand and that he was capable of frequent sitting and dynamic standing activity. However, weight cannot be given to the limitation that the claimant can work only 5-6 hours at part time work, ...

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