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Fothergill v. Colvin

United States District Court, D. Maine

January 13, 2016

PAUL JOSEPH FOTHERGILL, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

MEMORANDUM DECISION[1]

JOHN H. RICH III UNITED STATES 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 erred in (i) rejecting the opinion of his treating physician, Melanie C. Rand, D.O., (ii) relying on 2009 opinions of two agency nonexamining consultants, Lawrence P. Johnson, M.D., and Richard T. Chamberlin, M.D., (iii) reaching a residual functional capacity (“RFC”) determination that is unsupported by medical opinion, and (iv) making a flawed credibility determination. See Itemized Statement of Errors Pursuant to Local Rule 16.3 Submitted by Plaintiff (“Statement of Errors”) (ECF No. 8) at 2-8. I find no reversible error and, accordingly, affirm the commissioner’s decision.

This case returns to this court following an April 17, 2012, judgment and order vacating an unfavorable January 28, 2011, decision of an administrative law judge and remanding the case for further proceedings based on error in addressing the plaintiff’s obesity. See Record at 10-20, 384-92. A new hearing was held on September 4, 2013, during which the administrative law judge admitted additional evidence, including an RFC opinion by Dr. Rand dated July 10, 2013, and her progress notes for the period through June 4, 2013. See id. at 328, 333, 694-748, 756-59.

The administrative law judge issued a decision dated October 25, 2013, in which, 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), she found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act through December 31, 2013, Finding 1, Record at 314; that he had severe impairments of degenerative disc disease of the lumbar spine, insulin-dependent diabetes mellitus, and obesity, Finding 3, id.; that he retained the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that he could never climb ladders, ropes, or scaffolds, could occasionally climb ramps or stairs, could occasionally balance, stoop, kneel, crouch, and crawl, would need to avoid work at unprotected heights, would need to avoid concentrated exposure to hazards such as dangerous moving machinery, and would need to be able to alter positions between sitting and standing as needed throughout the day, Finding 5, id. at 317; that, considering his age (43 years old, defined as a younger individual, on his alleged disability onset date, January 31, 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 he could perform, Findings 7-10, id. at 321; and that he, therefore, had not been disabled from January 31, 2008, through the date of the decision, October 25, 2013, Finding 11, id. at 322. The Appeals Council declined to assume jurisdiction of the case following remand, id. at 295-99, making the decision the final determination of the commissioner, 20 C.F.R. §§ 404.984(a)-(b), 416.1484(a)-(b); 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 his 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. Treatment of Treating Physician’s Opinion

In her 2013 RFC opinion, Dr. Rand indicated, in relevant part, that the plaintiff was not able to complete an eight-hour day/40-hour workweek on a sustained, ongoing basis without undue interruptions or absences. See Record at 759. She attributed his limitations to chronic low back pain, neck pain, and degenerative disc disease. See id.

The administrative law judge rejected the opinion, explaining:

Dr. Rand has completed [an RFC] Questionnaire indicating that the [plaintiff] is substantially more limited than has been assessed in this finding. Social Security Ruling 06-2p provides that if a treating source’s medical opinion is well supported and [not] inconsistent with the other substantial evidence of record, it is entitled to controlling weight. However, Dr. Rand’s opinion that the [plaintiff] is unable to sustain full time work is inconsistent with the [plaintiff’s] demonstrated activities and contrary to the doctor’s own treatment notes as discussed in this finding, which report essentially normal physical examination findings. Therefore, the undersigned has given this opinion little evidentiary weight.

Id. at 320 (citations omitted). The administrative law judge also rejected a March 2, 2010, opinion of Dr. Rand (mistakenly attributed to Dr. Rand’s associate Jeffrey P. Maher, M.D.) in which Dr. Rand hand-wrote on a Physician Office Orders form, “Mr. Fothergill is unable to work due to chronic pain and degenerative dis[c] disease, diabetes[.]” Id. at 250, 320.[2] The administrative law judge explained:

Dr. Maher [sic] has not provided any supporting rational[e] for this opinion, has not assessed specific limitations in functioning, and has not provided a duration for this inability to work. Moreover, the ultimate determination of disability is a matter reserved to the Commissioner. Accordingly, this opinion is afforded no probative value.

Id. at 320.

Whether a claimant is disabled is an issue reserved to the commissioner; hence, even a treating source’s opinion on this matter is accorded no special significance. See, e.g., 20 C.F.R. §§ 404.1527(d), 416.927(d). Even as to treating source opinions on issues other than those reserved to the commissioner, an administrative law judge is free to reject such opinions so long as she supplies good reasons for doing so. See, e.g., Dunning v. Colvin, No. 2:14-cv-00401-JCN, 2015 WL 4139618, at *4 (D. Me. July 9, 2015).

The plaintiff contends that the administrative law judge failed to supply good reasons for rejecting the Rand opinions because she (i) neglected to take into account the effect of his uncontrolled diabetes, which Dr. Rand indicated was dangerous and placed him at high risk for a cardiovascular event, (ii) improperly found that a November 2008 evaluation by Adam Owen, M.D., undercut the Rand opinion, (iii) relied on irrelevant limitations assessed in 1996, well before his alleged onset date of disability, (iv) offered what appears to be an irrelevant boilerplate rationale that the Rand opinion was inconsistent with his demonstrated activities, which the administrative law judge did not explain, (v) wrongly concluded that Dr. Rand’s notes reflected essentially normal findings despite her notations of uncontrolled diabetes and chronic back pain and resulting limitations, in effect ...


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