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Prior v. Colvin

United States District Court, D. Maine

December 26, 2016

JOHN PRIOR, Plaintiff
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant


          John H. Rich III United States Magistrate Judge

          This Social Security Disability (“SSD”) 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 basis that the administrative law judge erred in determining his residual functional capacity (“RFC”) when she (i) relied on the opinion of an agency nonexamining consultant, Donald Trumbull, M.D., who reviewed a materially incomplete record, (ii) assessed no limitations related to irritable bowel syndrome (“IBS”), and (iii) failed to supply adequate reasons for rejecting the physical RFC opinion of treating source Raymond W. Fluke, M.D. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 11) at 4-11. He contends that these errors were outcome-determinative, undermining the administrative law judge's conclusion that he retained the capacity to perform other work existing in significant numbers in the national economy. See id. at 11-13. I agree that the administrative law judge erred in all three respects and that two of the errors were not harmless. Accordingly, I recommend that the court vacate the commissioner's decision and remand this case for further proceedings consistent herewith.

         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 March 31, 2015, Finding 1, Record at 16; that he had severe impairments of degenerative disc disease of the lumbar spine and IBS, Finding 3, id.; that he retained the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b), could lift/carry 10 pounds frequently and 20 pounds occasionally, could sit for about six hours and stand/walk for about six hours in an eight-hour workday, and could occasionally climb ladders, ropes, scaffolds, ramps, and stairs, balance, stoop, kneel, crouch, and crawl, Finding 5, id. at 17-18; that, considering his age (48 years old, defined as a younger individual, on his alleged disability onset date, December 24, 2009, and 50 years old, defined as an individual closely approaching advanced age, on October 18, 2011), education (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 23; and that he, therefore, had not been disabled from December 24, 2009, through the date of the decision, October 30, 2014, Finding 11, id. at 24. 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 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).

         I. Discussion

         A. Handling of Treating Physician RFC Opinion

         The Plaintiff's treating physician, Dr. Fluke, submitted two RFC opinions dated June 20, 2014, one touching on the Plaintiff's physical RFC and the other on his mental RFC. See Record at 825-30. In his physical RFC opinion, Dr. Fluke assessed the plaintiff, in relevant part, as able to stand and/or walk for less than two hours in an eight-hour workday and sit for less than six hours in an eight-hour workday. See id. at 825-26.

         After summarizing each of Dr. Fluke's opinions, the administrative law judge wrote:

The undersigned gives little weight to Dr. Fluke. He has only been treating the [plaintiff] for 8 months or so. Contradicting his opinion is an evaluation from VA [U.S. Department of Veterans Affairs] Mental Health at Exhibit 27F with no diagnoses found and a GAF [Global Assessment of Functioning] ¶ 80. It is also noted that the [plaintiff] was not allowed for PTSD [post-traumatic stress disorder] in the VA Ratings.

Id. at 22.

         In so doing, as the plaintiff complains, see Statement of Errors at 6-7, the administrative law judge in effect ignored Dr. Fluke's physical RFC opinion. The only point she made that arguably pertains to that opinion is that Dr. Fluke had been treating the plaintiff for only approximately eight months. See Record at 22. However, that in itself is not a good reason to have accorded the opinion little weight. See, e.g., Johnson v. Astrue, 597 F.3d 409, 411 (1st Cir. 2009) (fact that treating physician had seen claimant only three times at roughly three-month intervals did not constitute good reason to reject his opinion in absence of any explanation for, or citation in support of, administrative law judge's belief that treatment relationship had been too attenuated to enable treating physician to offer an informed opinion about claimant's physical capabilities; nor was that obvious to a layperson).

         The commissioner argues that this case is distinguishable from Johnson in that here, the administrative law judge provided additional reasons, besides length of the treating relationship, for discounting the Fluke opinions. See Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 14) at 7. However, in support of that point, she relies on reasons given to discount Dr. Fluke's mental RFC opinion and on separate portions of the decision generally discussing the evidence bearing on RFC. See id. at 7-8. At oral argument, her counsel contended that the administrative law judge's critique of Dr. Fluke's mental RFC opinion called into question the reliability of both opinions.

         This simply is too great a stretch. An administrative law judge must supply good reasons for her handling of every treating physician opinion. See, e.g., 20 C.F.R. § 404.1527(c) & (c)(2) (“Regardless of its source, we will evaluate every medical opinion we receive. . . . We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion.”). The administrative law judge neither stated that the reasons she gave for discounting Dr. Fluke's mental RFC opinion pertained to his physical RFC opinion nor incorporated by reference (or otherwise alluded to) other portions of her decision in addressing the Fluke physical RFC opinion. She offered only one reason for according it little weight: the length of the treatment relationship. See Record at 22. Her handling of that opinion, thus, is indistinguishable from that found wanting in Johnson. If anything, in Johnson, the ...

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