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Auger v. Colvin

United States District Court, D. Maine

January 24, 2016

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



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 improperly gave little weight to the opinions of treating sources Judy Welch, M.D., and James F. Findlay, D.O., and great weight to the opinions of agency nonexamining consultants Donald Trumbull, M.D., and Carl Runge, M.D., and erred in evaluating the plaintiff’s credibility. See Plaintiff’s Statement of Errors (“Statement of Errors”) (ECF No. 11) at 10-20; see also Plaintiff’s Motion To Remand (ECF No. 12).[2] 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, 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, 2016, Finding 1, Record at 18; that he had a severe impairment of degenerative disc disease of the lumbar spine, Finding 3, id. at 19; that he had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) and could balance, stoop, kneel, crouch, crawl, and climb ramps, stairs, ladders, ropes, and scaffolds occasionally and should avoid unprotected heights and irregular terrain, Finding 5, id. at 21; that, considering his age (38 years old, defined as a younger individual, on his alleged disability onset date, September 6, 2011), education (a limited eighth-grade education), 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 24; and that he, therefore, had not been disabled from September 6, 2011, through the date of the decision, September 3, 2014, Finding 11, id. at 25. 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 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. Alleged Errors in Weighing Medical Opinion Evidence

1. Treatment of Treating Sources

A treating source’s opinion on the nature and severity of a claimant’s impairments is entitled to controlling weight if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with the other substantial evidence in [the claimant’s] case record[.]” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).

When a treating source’s opinion is not given controlling weight, it is weighed in accordance with enumerated factors. See id.[3] An administrative law judge may give the opinion little weight or reject it, provided that he or she supplies “good reasons” for so doing. See, e.g., Id. (“[The commissioner] will always give good reasons in [her] notice of determination or decision for the weight [she] give[s] [a claimant’s] treating source’s opinion.”); Social Security Ruling 96-8p, reprinted in West’s Social Security Reporting Service Rulings 1983-1991 (Supp. 2015) (“SSR 96-8p”), at 150 (an administrative law judge can reject a treating source’s opinion as to RFC but “must explain why the opinion was not adopted”). Slavish discussion of the relevant factors is not required. See, e.g., Golfieri v. Barnhart, No. 06-14-B-W, 2006 WL 3531624, at *4 (D. Me. Dec. 6, 2006) (rec. dec., aff’d Dec. 29, 2006).

a. Dr. Welch

The plaintiff, a former auto mechanic, sustained a work-related back injury on September 6, 2011, his alleged onset date of disability, while assisting a co-worker in lifting an engine from a truck. See Record at 321. He established care with Dr. Welch, his primary care physician, on February 15, 2013, complaining of back pain and anxiety. See id. at 389-90. She subsequently saw him on March 5, 2013, see id. at 388; March 14, 2013, see id. at 386; April 9, 2013, see id. at 384; May 14, 2013, see id. at 378; August 7, 2013, see id. at 375; October 24, 2013, see id. at 374; November 1, 2013, see id. at 373; January 29, 2014, see id. at 412; April 28, 2014, see id. at 411; and July 23, 2014, see id. at 410.

Dr. Welch submitted a medical form dated July 26, 2013, in which she checked a box indicating that the plaintiff was disabled and stated that he had been since September 6, 2011. See id. at 363. Subsequently, she provided two other opinions, both dated October 24, 2013: a letter to the plaintiff’s attorney stating that the plaintiff could not do competitive full-time work at that time and that his limitations included an inability even to shower at times or to bend, twist, stoop, or pick anything up, see id. at 364, and answers to a questionnaire indicating that the plaintiff had a number of functional limitations, including an ability to sit for only up to one hour in an eight-hour workday, stand/walk for only one hour in an eight-hour workday, and lift/carry no more than five pounds occasionally, with marked restrictions in grasping, turning, and twisting objects, using his fingers/hands for fine manipulation, and using his arms for reaching, see id. at 365-72.

The administrative law judge gave “little to no weight” to these opinions, explaining:

Although Dr. Welch is the [plaintiff’s] treating physician, . . . the extreme degree of back related limitations cited is not supported in her contemporaneous treatment records, or in the longitudinal record. The limitations cited appear to be based in large part on the [plaintiff’s] subjective allegations, particularly where Dr. Welch noted in her office note dated October 24, 2013, that the [plaintiff] was there to review and fill out paperwork at her lawyer’s request. It should also be noted that the evidence fails to document the existence of a medically determinable impairment that could reasonably be expected to result in the upper extremity limitations, or in the inability to keep the neck in a constant position cited in October, 2013.

Id. at 23 (citation omitted).

The plaintiff argues that the Welch opinions should have been given controlling weight, or adopted based on proper consideration of the relevant factors, in that:

1. There is no evidence that they are predicated primarily on his subjective statements rather than the available medical evidence. See Statement of Errors at 11. Dr. Welch stated that they were based on CT scan and x-ray findings, fingertip numbness, severe low back pain radiating into both legs and feet, numbness and tingling in both feet, fatigue, depression, nausea, lack of motivation, and a feeling of numbness in the back, occasionally into the shoulder. See id. A CT scan of the thoracic spine showed chronic degenerative changes with spondylosis, including bone spurs on the anterior portions of T6-7 and T11-12 and Schmorl’s nodes on the inferior portion of the vertebral body of T9, and x-rays of the lumbar spine revealed sclerosis of the sacroiliac joints bilaterally at the iliac and sacral side, and spurring on the anterior vertebral body. See id. In addition, clinical examinations revealed abnormalities including paraspinal muscle tenderness/pain on palpation, limited spine motion, positive straight leg raising, reduced sensation, and muscle weakness. See id. In any event, it is good practice for a doctor to consider a patient’s subjective statements along with available clinical and diagnostic testing. See id. at 11-12.

2. The administrative law judge failed to identify substantial evidence contradicting the Welch opinions. See id. at 12.

3. The administrative law judge suggested that it was inappropriate for the plaintiff to request that Dr. Welch complete a functional capacity evaluation provided by counsel; however, the commissioner actively encourages claimants to obtain such reports. See id. at 12-13.

4. All of the relevant factors counsel in favor of the adoption of the Welch opinions: Dr. Welch had treated the plaintiff regularly since February 2013, she had focused on his disabling back condition, she supported her opinions with a detailed report on his diagnoses, symptoms, and objective medical findings, and her findings were consistent with her own notes, treatment notes from earlier treating practitioners, ...

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