United States District Court, D. Maine
MARIA F. WHITNEY, Plaintiff
NANCY A. BERRYHILL, Acting Commissioner of Social Security,  Defendant
REPORT AND RECOMMENDED DECISION
H. Rich III United States Magistrate Judge
Social Security Disability (“SSD”) and
Supplemental Security Income (“SSI”) appeal
raises the question of whether the administrative law judge
(“ALJ”) 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 ALJ erred by formulating a physical residual
functional capacity (“RFC”) determination that
was not supported by substantial evidence, and impermissibly
discounted the opinion of the plaintiff's treating
physician. See Statement of Specific Errors
(“Statement of Errors”) (ECF No. 14) at 1-9. I
find no error and, accordingly, recommend that the court
affirm the commissioner's decision.
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 ALJ found, in relevant part, that the
plaintiff met the insured status requirements of the Social
Security Act through March 31, 2018, Finding 1, Record at 22;
that she had severe impairments of morbid obesity,
degenerative joint disease of the right knee, anxiety, and
depression, Finding 3, id.; that she had the RFC to
perform light work as defined in 20 C.F.R. §§
404.1567(b) and 416.967(b), except that she could never climb
ladders, ropes, or scaffolds, kneel, or crawl, could
occasionally climb ramps and stairs, balance, stoop, and
crouch, needed to avoid concentrated exposure to extreme
temperatures, humidity, and respiratory irritants, needed to
avoid all exposure to unprotected heights and dangerous
moving machinery, could carry out tasks in an environment
with no fast pace or strict production quotas,  could adapt to
ordinary changes in routine, could interact on a superficial
basis with the general public, and could interact with
coworkers and supervisors well enough to sustain work
activity, but should have no intense social demands, Finding
5, id. at 25; that, considering her age (49 years
old, defined as an individual closely approaching advanced
age, on her alleged disability onset date, September 15,
2013), 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 she could perform, Findings 7-10, id. at 33-34;
and that she, therefore, had not been disabled from September
15, 2013, through the date of the decision, March 15, 2016,
Finding 11, id. at 35. The Appeals Council declined
to review the decision, id. at 1-4, 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).
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).
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 her 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).
statement of errors also implicates Step 4 of the sequential
evaluation process, at which stage the claimant bears the
burden of proving inability to return to past relevant work.
20 C.F.R. §§ 404.1520(f), 416.920(f);
Bowen, 482 U.S. at 146 n.5. At this step, the
commissioner must make findings of the plaintiff's RFC
and the physical and mental demands of past work and
determine whether the plaintiff's RFC would permit
performance of that work. 20 C.F.R. §§ 404.1520(f),
416.920(f); Social Security Ruling 82-62 (“SSR
82-62”), reprinted in West's Social Security
Reporting Service Rulings 1975-1982, at 813.
The ALJ's Physical RFC Assessment
plaintiff first argues that the ALJ's RFC formulation was
not supported by substantial evidence. See Statement
of Errors at 1-5. For the reasons that follow, I find no
formulating the physical portion of the plaintiff's RFC,
the ALJ considered the opinions of three medical experts:
Robert Hayes, D.O., an agency nonexamining consultant,
Stratton J. Shannon, D.O., the plaintiff's treating
physician, and Karen Hover, M.D., an agency examining
consultant. See Record at 31-32. She gave great
weight to the opinion of Dr. Hayes, dated February 25, 2015,
and only partial weight to those of Drs. Shannon and Hover,
dated January 21, 2016, and November 7, 2014, respectively.
See Id. at 31-32, 159-63, 504-07, 738-741.
plaintiff contends that this was not a permissible resolution
of evidentiary conflicts because Dr. Hayes did not have the
benefit of review of subsequent material evidence bearing on
her right knee impairment and did not even deem the condition
severe. See Statement of Errors at 2-4; Eaton v.
Astrue, Civil No. 07-188-B-W, 2008 WL 4849327, at *5 (D.
Me. Nov. 6, 2008) (rec. dec., aff'd Dec. 1,
2008) (“[A]s a general rule, [an agency] non-examining
expert's report cannot stand as substantial evidence in
support of an administrative law judge's decision when
material new evidence has been submitted subsequent to its
issuance, calling the expert's conclusions into
question.”) (citations omitted).
adds that the ALJ compounded that error by misconstruing the
raw medical evidence unseen by Dr. Hayes to support a finding
that the knee impairment imposed no greater functional
restrictions than those assessed by Dr. Hayes. See
Statement of Errors at 4-5; Eshelman v. Astrue, No.
06-107-B-W, 2007 WL 2021909, at *3 (D. Me. July 11, 2007)
(rec. dec., aff'd July 31, 2007)
(“While the First Circuit does permit an administrative
law judge to pick and choose among physicians' findings
and opinions, it does not permit the crafting of an RFC based
on the raw medical evidence of record unless common-sense
judgments about functional capacity can be made.”)
(citations and internal quotation marks omitted).
commissioner rejoins that the ALJ's reliance on Dr. Hayes
was not misplaced because he took the knee impairment into
account, in fact deeming it severe, and the ALJ supportably
concluded that subsequent evidence did not call his RFC
opinion into question. See Defendant's
Opposition to Plaintiff's Statement of Errors
(“Opposition”) (ECF No. 17) at 3-8. The
commissioner has the better argument.
Dr. Hayes' Opinion
Hayes acknowledged that the plaintiff's allegations
included knee pain but observed that a January 22, 2015,
treatment note indicated that she moved easily and ambulated
without difficulty. See Record at 158. He had the
benefit of review of the Hover report, to which he indicated
he gave great weight, noting that limitations due to obesity
were supported by the evidence in the file, for the most
part. See id. at 161.
Hover had diagnosed the plaintiff, inter alia, with
bilateral knee and hip osteoarthritis, chronic low back pain,
and morbid obesity. See id. at 507. She summarized
her musculoskeletal findings as follows:
No asymmetry or obvious joint deformity or atrophy however
she was very obese and had trouble moving around the room,
squatting, and getting up on the table or lying down. I did
not appreciate any heat or tenderness. Her dexterity with her
hands was good. She was not using any assistive devices. She
had a normal range of motion of the neck, shoulders, elbows,
or wrists and was able to perform repeated hand grip. She had
normal range of motion of her back with very slight, probably
less than 5 degrees, scoliosis. She had normal range of
motion of the hips except that she only had about 45 degrees
of external rotation of the right hip and on the left she had
about 80 degrees of motion. She had full range of motion of
the knees and ankles.
Id. at 506-07. She opined:
This patient is able to sit although she needs a large chair.
She is able to stand for short periods of time although it
causes her ankles to swell. She is able to walk for short
distances. She can lift, I would expect 20 pounds, even
repetitively. She can carry for short distances. She really
cannot bend well. She can handle objects. She can hear and
speak. I would expect traveling to bother her with any
prolonged sitting or lack of leg motion.
Id. at 507.
on the evidence then available, including the Hover report,
Dr. Hayes found two severe physical impairments:
osteoarthrosis and allied disorders, and obesity. See
id. at 159. As the commissioner argues, see
Opposition at 4, “osteoarthrosis” seemingly
refers to the plaintiff's hip and knee condition, given
that (i) Dr. Hover assessed osteoarthritis of the bilateral
knees and hips but no other body part, see Record at
507, (ii) Dr. Hayes did not purport to discount that
diagnosis, see id. at 159, 161, and (iii) the terms
“osteoarthritis” and “osteoarthrosis”
are synonymous, see Stedman's Medical Dictionary
1282 (27th ed. 2000) (defining “osteoarthritis”
as “[a]rthritis characterized by erosion of articular
cartilage, either primary or secondary to trauma or other
conditions, which becomes soft, frayed, and thinned . . .;
pain and loss of function result; mainly affects
weight-bearing joints, ” and defining
“osteoarthrosis” as synonymous with
Hayes assessed exertional, postural, and environmental
limitations, the need for which he attributed to the
plaintiff's morbid obesity, except that he explained that
he also assessed environmental limitations as a result of her
poor physical conditioning. See Record at 162-63. As
the plaintiff points out, see Statement of Errors at
2, Dr. Hayes did not state that any of the assessed physical
limitations was based on her knee condition, see
Record at 162-63.
Subsequent Evidence Bearing on Knee Impairment
30, 2015, approximately five months after Dr. Hayes issued
his RFC opinion, the plaintiff complained to treating
physician Dr. Shannon of right hip and right knee pain.
See id. at 623. Dr. Shannon noted that, on
examination, the plaintiff's “[k]nees showed
abnormalities [and a] small effusion with decreased joint
spaces and painful arc of motion.” Id. at 624.
He diagnosed her with internal derangement of the knee and
referred her for an MRI of her right knee. See id.
of the plaintiff's right knee was obtained on August 7,
2015, and was compared with a prior MRI dated May 5, 2009.
See Id. at 595-597. The diagnostician's
impression included the following:
Markedly abnormal appearance of the medial meniscus. This has
significantly progressed from prior MRI from 2009. Today, no
normal body or posterior horn of the meniscus is visualized.
There is a tear of the meniscal root with medial extrusion of
the visualized part of the meniscus. I believe extensive
tearing of the body and posterior horn of the meniscus is
present, extending to the cranial and caudal meniscal
surface. Some part of the anterior horn of the medial
meniscus is seen. The cartilage within the medial compartment
of the knee is suboptimally evaluated. I believe it is
thinned and chondromalacia is very likely present.
Id. at 597.
the MRI, Dr. Shannon referred the plaintiff to Garrett
Martin, M.D., an orthopedic surgeon. See Id. at 611.
Dr. Martin saw the plaintiff on September 29, 2015. See
id. In addition to reviewing the report of the August 7,
2015, MRI, he obtained an x-ray of the plaintiff's right
knee that revealed “medial joint space narrowing”
with “some ...