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Tyrrell v. Berryhill

United States District Court, D. Maine

October 26, 2017



          John C. Nivison U.S. Magistrate Judge.

         On Plaintiff Lawrence Tyrrell's application for disability insurance benefits under Title II of the Social Security Act, Defendant, the Social Security Administration Acting Commissioner, found that Plaintiff has certain medically determinable impairments, but that the impairments are not “severe.” Defendant, therefore, denied Plaintiff's request for disability benefits. Plaintiff filed this action for judicial review of Defendant's final administrative decision pursuant to 42 U.S.C. § 405(g).

         Following a review of the record, and after consideration of the parties' arguments, I recommend the Court vacate the administrative decision and remand the matter for further proceedings.

         The Administrative Findings

         The Commissioner's final decision is the November 12, 2015, decision of the Administrative Law Judge (ALJ). (ECF No. 9-2.)[1] The ALJ's decision tracks the familiar five-step sequential evaluation process for analyzing social security disability claims, 20 C.F.R. §§ 404.1520, 416.920, but concludes at step 2 of the process.

         The ALJ found that Plaintiff has several impairments, including but not limited to right ankle degenerative joint disease and thoracic spine disorder, but that the impairments are not severe. (Id. ¶¶ 3, 4.) In other words, the ALJ found that Plaintiff does not have an impairment or combination of impairments that has significantly limited (or is expected to significantly limit) Plaintiff's ability to perform basic work-related activities for twelve consecutive months. (Id. ¶ 4.) The ALJ did not call a medical expert to testify at the hearing.

         Standard of Review

         A court must affirm the administrative decision provided the ALJ applied the correct legal standards and provided the decision is supported by substantial evidence. This is so even if the record contains evidence capable of supporting an alternative outcome. Manso-Pizarro v. Sec'y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per curiam); Rodriguez Pagan v. Sec'y of HHS, 819 F.2d 1, 3 (1st Cir. 1987). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a finding. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981). “The ALJ's findings of fact are conclusive when supported by substantial evidence, but they are not conclusive when derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).


         On December 6, 2013, David Houston, Ph.D., on behalf of Disability Determination Services, determined that Plaintiff's mental impairments are not severe. (Ex. 2A, R. 53 - 54, ECF No. 9-3.) On December 12, 2013, Donald Trumbull, M.D., also on behalf of Disability Determination Services, determined that Plaintiff's physical impairments are not severe. (Id., R. 55.) Upon reconsideration of the determinations at Plaintiff's request, on August 25, 2014, after Plaintiff received a consultative psychiatric evaluation by Richard Parker, Ph.D., (Ex. 2F, ECF No. 9-7), Jan Jacobson, Ph.D., determined that Plaintiff's psychological condition does not result in significant limitations in Plaintiff's ability to perform basic work activities and, therefore, is not severe enough to be considered disabling. (Ex. 3A, R. 61 - 64, ECF No. 9-3.) The Disability Determination Services' review of Plaintiff's application did not include a consultative physical exam.

         Between the reconsideration determination and the hearing before the ALJ, Plaintiff was examined by two physicians. First, Peter Ameglio, M.D. performed an orthopedic evaluation on June 11, 2014. (Ex. 4F, ECF No. 9-7.) Dr. Ameglio examined Plaintiff's right foot and reported findings of forefoot pronation, hallux valgus foot deformity with erythema over the medial eminence, hypermobile first tarsometatarsal joint, decreased range of motion of the first metatarsal phalangeal joint, painless range of motion of the ankle, subtalar joint, transverse tarsal joints, and metatarsal phalangeal joints, with 5/5 motor strength. (R. 271.) Based on the findings, Dr. Ameglio assessed right hallux rigidus and right midfoot degenerative joint disease, and he prescribed orthotics. (Id.) In a medical source statement, Dr. Ameglio opined that Plaintiff would be limited to light exertion, and could stand or walk for two hours in an eight-hour work day. (R. 267.)

         On August 14, 2015, Robert N. Phelps Jr., M.D., an orthopedic surgeon, issued a physical examination report (Ex. 7F) and medical source statement (Ex. 6F). In his report, Dr. Phelps noted a varus deformity and tenderness to palpation at the right ankle with good ankle stability, and uneven wear to Plaintiff's right shoe secondary to the ankle varus deformity. (R. 287 - 288.) Dr. Phelps also assessed bilateral foot impairments consisting of pes planus deformities and “very stiff” great toes, right thoracic scoliosis, and a decreased range of motion in the thoracic spine. (Id.) In a source statement, Dr. Phelps found exertional limitations, postural limitations, manipulative limitations, and environmental limitations. (R. 280 - 82.)

         Plaintiff argues that the findings reported by Drs. Ameglio and Phelps in 2014 should control over the December 2013 physical residual functional capacity findings of Dr. Trumbull, which findings were based on Dr. Trumbull's review of Plaintiff's then-existing medical records. Plaintiff observes that Disability Determination Services never obtained a consultative examination of Plaintiff's physical impairments. (Statement of Errors at 2 - 4.) Plaintiff contends the ALJ could not reject the findings of Drs. Ameglio and Phelps unless another physician reviewed their findings and provided an opinion supportive of the ALJ's assessment. (Id. at 5.) Plaintiff further maintains that the alleged error was not harmless because he is of “advanced age” and would qualify as disabled under the Commissioner's Medical-Vocational Guidelines, Appendix 2 to 20 C.F.R. Part 404, Subpart P, based on a limitation to light work and given his vocational background. (Id. at 6.)[2]

         Defendant argues the findings and opinions of Drs. Ameglio and Phelps do not compel a determination that Plaintiff's orthopedic impairments are severe because the doctors were not treating sources, Plaintiff's providers have treated the impairments conservatively (e.g., Dr. Ameglio recommended orthotics), Plaintiff's activities of daily living are inconsistent with a finding of a “severe” limitation, and reports in the longitudinal medical record did not persuade Dr. Trumbull that Plaintiff's orthopedic impairments were severe. (Defendant's Opposition at 5 - 8, ECF No. 17.) Defendant, therefore, asserts that the ALJ ...

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