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Whitney v. Berryhill

United States District Court, D. Maine

July 2, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant


          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 (“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.

         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 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, [3] 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).

         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 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).

         The 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.

         I. Discussion

         A. The ALJ's Physical RFC Assessment

         The 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 error.

         In 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.

         The 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).

         She 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).

         The 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.

         1. Dr. Hayes' Opinion

         Dr. 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.

         Dr. 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.

         Based 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 osteoarthritis).

         Dr. 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.

         2. Subsequent Evidence Bearing on Knee Impairment

         On July 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.

         An MRI 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.

         Following 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 ...

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