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Lee v. Berryhill

United States District Court, D. Maine

February 8, 2018

ROY E. LEE, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          MEMORANDUM DECISION [1]

          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 improperly (i) rejected the opinion of his treating source, (ii) interpreted raw medical evidence to formulate his residual functional capacity (“RFC”), and (iii) erred in evaluating his credibility. See Itemized Statement of Errors Pursuant to Local Rule 16.3 Submitted by Plaintiff (“Statement of Errors”) (ECF No. 8) at 2-5. 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. Sec'y 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 December 31, 2014, Finding 1, Record at 14; that he had the severe impairments of degenerative lumbar disc/spine disease (status-post lumbar discectomy with residual chronic myofascitis and radiculitis) and obesity, Finding 3, id.; that he retained the RFC to perform the full range of sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), Finding 5, id. at 17; that, considering his age (categorized as a younger individual ages 18-44 from his alleged disability onset date, January 4, 2010, through October 19, 2015, and as a younger individual ages 45-49 as of October 20, 2015), 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 he could perform, Findings 7-10, id. at 19-20; and that he, therefore, had not been disabled from January 4, 2010, through the date of the decision, November 4, 2015, Finding 11, id. at 20-21. 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. Sec'y 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. Sec'y 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. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

         The ALJ 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. Sec'y 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); Yuckert, 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 Treatment of the Opinion of the Plaintiff's Treating Source

         The plaintiff first argues that the ALJ improperly rejected the opinion of his “longtime physician[, ]” David L. Phillips II, M.D., that he needed to change positions every 20 minutes between sitting, standing, and reclining. Statement of Errors at 2; Record at 495. I find no error.

         As a foundational matter, while a treating source opinion generally is entitled to more weight, see 20 CFR §§ 404.1527(c)(2), 416.927(c)(2), it is entitled to controlling weight only when it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in [the] case record, ” id. Further, while an ALJ must “always give good reasons . . . for the weight [the ALJ] give[s] [a claimant's] treating source's opinion[, ]” id., he or she may give it little to no weight so long as good reasons are provided, see, e.g., Heath v. Astrue, No. 1:12-cv-99-DBH, 2012 WL 6913440, at *11 (D. Me. Dec. 30, 2012) (rec. dec., aff'd Jan. 18, 2013).

         The ALJ accorded the Phillips opinion “minimal/less probative weight[, ]” deeming it “inconsistent with the just discussed record and the aforementioned medical evidence (See: Finding No. 3, supra)[.]” Record at 19. As the commissioner observes, see Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 9) at 5, the ALJ thereby indicated that he found inconsistency not only with other medical opinions of record, which, along with the plaintiff's activities of daily living, he had just discussed, see Record at 18-19, but also with the objective medical evidence discussed in conjunction with his Finding 3 concerning severe impairments, see id. at 14-15. In the text accompanying that finding, he emphasized that, despite the plaintiff's degenerative disc disease, he generally had normal neurological findings, including normal motor power and reflexes in his lower extremities. See id.

         The commissioner correctly notes that the plaintiff challenges only the ALJ's reliance on other medical opinion evidence in discounting the Phillips opinion; thus, the ALJ's reliance on its inconsistency with the objective medical evidence stands. See Opposition at 5; Statement of Errors at 2-3.[2]

         For the reasons that follow, I find no fault in the ALJ's conclusion that the Phillips opinion also was inconsistent with other medical opinion evidence of record. Inconsistency with other substantial evidence of record, in turn, constitutes a good reason for according a treating physician's opinion little to no weight. See, e.g., Campagna v. Berryhill, No. 2:16-cv-00521-JDL, 2017 WL 5037463, at *4 (D. Me. Nov. 3, 2017) (rec. dec., aff'd Jan. 2, 2018).

         In deeming the Phillips opinion inconsistent with other record evidence, the ALJ alluded, inter alia, to his prior discussion of five other expert opinions of record:

1. Agency examining consultant Ira W. Stockwell, D.O., indicated in an October 5, 2012, report, see Record at 407-09, that, “while [the plaintiff] was limited concerning standing, walking, lifting and bending, and going from a sitting to a standing position, he was not restricted with respect to ...

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