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Brown v. Berryhill

United States District Court, D. Maine

April 20, 2018

ANGELA J. BROWN, Plaintiff
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Performing the Duties and Functions Not Reserved to the Commissioner of Social Security, Defendant

          REPORT AND RECOMMENDED 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 (1) erroneously gave little weight to the report of an independent medical examination performed by Philip R. Kimball, M.D., at the direction of a worker's compensation insurer, (2) failed to adequately account for the plaintiff's pain in assessing her residual functional capacity (“RFC”), and (3) misunderstood the significance of a limitation assessed by agency nonexamining consultant Marcia Lipski, M.D., whose opinion she purported to adopt. See Plaintiff's Statement of Errors (“Statement of Errors”) (ECF No. 28) at 1-2. 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. 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, 2016, Finding 1, Record at 18; that she had the severe impairments of lumbar degenerative disc disease, obesity, bilateral hearing loss, and chronic bilateral mastoiditis with cholesteatoma and ear reconstruction, 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, inter alia, she was able to lift no more than 10 pounds occasionally and less than 10 pounds frequently and had to be allowed to alternate sitting and standing for up to five minutes per hour, Finding 5, id. at 31; that, considering her age (37 years old, defined as a younger individual, on her alleged disability onset date, December 31, 2012), 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 47; and that she, therefore, had not been disabled from December 31, 2012, through the date of the decision, April 13, 2016, Finding 11, id. at 48-49. 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. 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 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. Sec'y of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

         I. Discussion A. Discounting of Kimball Opinion

         The plaintiff first contends that the ALJ erred in her consideration of the opinion of Dr. Kimball. See Statement of Errors at 6-11. Dr. Kimball examined the plaintiff on January 15, 2014, in connection with a worker's compensation claim involving her former employer, Tranten Family Grocery Store. See Record at 765-66. He diagnosed her, in relevant part, with chronic low back and bilateral leg pain, right greater than left; degenerative lumbar disc disease, L3-4 with disc herniation, and L4-5 with right sciatica; degenerative spondylolisthesis, first-degree, L5/S1, preexisting; and status-post six epidural steroid injections in 2013 with transient pain relief. See id. at 771.

         He determined that the plaintiff had a preexisting back condition that had been aggravated by two work-related incidents:

1. An incident on December 30, 2010, in which repetitive activity unloading pallets caused a herniated disc at ¶ 3-4, “which[, ] combined with [the plaintiff's] congenital anomalies at the level of L4-5 and L5/S1[, ] limit[ed] her lifting, bending, and physical activities[, ]” id. at 772-73; and
2. An incident on December 31, 2012, in which, while lifting multiple five-pound bags of produce from a pallet, the plaintiff “significantly aggravated her preexisting condition, enlarging the dis[c] herniation at the level of L3-4” and leading to “bilateral leg pain, right greater than left.” Id.

         Dr. Kimball described the condition caused by the December 30, 2012, incident as having “combined with [the plaintiff's] preexisting condition and prior incident of 2010 to render her disabled from her employment.” Id. at 773. He added that the plaintiff's “history suggests strongly that she is totally disabled from gainful employment at this time[, ]” noting, “This is documented by the MRI studies revealing conditions both congenital and acquired by injury, in her lumbar spine.” Id.

         He described the plaintiff's treatment to that point, “including therapy, spinal injections, opiate medications, and the recent addition of a Fentanyl patch, ” as “nontherapeutic in nature in that they are not expected to rehabilitate [her] to full working status.” Id. at 774. He stated that her “extensive spinal pathology in the lumbar spine, both congenital defect and the enlarging herniated dis[c] at L3-4, can only be treated therapeutically by spinal surgery with medical management also.” Id. He added, “Surgery is more likely to result in lessening of [the plaintiff's] pain and improving her activity level than continuing the use of opiates alone at the age of 38.” Id.

         The ALJ stated that, while she gave significant weight to Dr. Kimball's opinion that the plaintiff could not return to her recent employment, she gave “little weight to his opinion that the [plaintiff]'s history suggests strongly that she is totally disabled from gainful employment.” Id. at 46 (citation omitted). She explained:

Dr. Kimball relies on the [plaintiff]'s congenital and acquired injuries as a basis for his opinion, but the [plaintiff] was able to work despite her congenital condition and earlier injuries. He fails to explain his opinion or why the [plaintiff] was unable to perform a lighter level of work. Dr. Kimball likely relied on the [plaintiff]'s statements that she was unable to manage her home and was housebound for days at a time. However, the [plaintiff] has failed to ma[k]e similar statements to her treating sources. Dr. Kimball also opines that the [plaintiff]'s ‘extensive spinal pathology' can only be treated therapeutically by spinal surgery with medical management. I have given much greater weight to the statement by Dr. Weitman [David M. Weitman, M.D., Ph.D.] on July 10, 2013, that as long as the [plaintiff]'s symptoms were not too debilitating, it would be wise to hold off on surgery.

Id. (citations omitted); see also id. at 729.

         The plaintiff contends that none of the ALJ's bases for giving little weight to the Kimball opinion is supported by substantial evidence. See Statement of Errors at 8-11. She asserts that the ALJ erroneously found that (i) she continued working after her 2012 injury, (ii) Dr. Kimball failed to explain why she could not do lighter work, (iii) Dr. Kimball relied on her statements that she was unable to manage her home and was housebound for days at a time, and (iv) Dr. Weitman's observation regarding the necessity of surgery deserved greater weight than that of Dr. Kimball. See id.

         Beyond this, the plaintiff argues that there is no substantial evidence that is inconsistent with the Kimball report, as a result of which the ALJ should have “found [her] disabled based on Dr. Kimball's opinions, and erred in failing to do so.” Id. at 11. For that proposition, she cites Social Security Ruling 96-2p (“SSR 96-2p”) and analogizes this case to Mawhinney v. Heckler, 600 F.Supp. 783 (D. Me. 1985). See id. at 6-7, 11. In Mawhinney, this court deemed an ALJ's finding that a claimant with progressive, unstable degenerative disc disease retained the RFC to perform the full range of sedentary and light work unsupported by substantial evidence when the reports of three medical experts “strongly corroborate[d] the claimant's subjective complaints of pain[, ]” and the “record contain[ed] no evidence that [was] inconsistent with these reports.” Mahwinney, 600 F.Supp. at 785, 787.[2]

         These points are unavailing. First, as the commissioner observes, see Defendant's Opposition to Plaintiff's Statement of Errors (“Opposition”) (ECF No. 30) at 7 n.1, SSR 96-2p is inapposite because it pertains to assessment of the opinions of treating, rather than examining, sources, see SSR 96-2p, reprinted in West's Social Security Reporting Service Rulings 1983-1991 (Supp. 2017) at 110.[3] “A onetime examining consultant is not a ‘treating source' and therefore is not subject to the ‘treating source' rule, pursuant to which a medical opinion may be rejected only for good reasons.” Smythe v. Astrue, No. 2:10-cv-251-GZS, 2011 WL 2580650, at *5 (D. Me. June 28, 2011) (rec. dec., aff'd July 21, 2011) (citing 20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2), since redesignated as 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2)). There is authority that “failure by the ALJ to articulate or explain the weight given to the reports of the examining or consultative physicians can be harmless error.” Id. (citation and internal quotation marks omitted).

         Second, an opinion that a claimant is disabled is an opinion on an issue reserved to the commissioner and, thus, entitled to no special significance even if offered by a treating source. See, e.g., 20 C.F.R. §§ 404.1527(d)(1), (3), 416.927(d)(1), (3); Snowdon v. Colvin, No. 2:15-cv- 521-JHR, 2016 WL 4766231, at *6 (D. Me. Sept. 13, 2016) (“[T]he failure of an [ALJ] to adopt a treating medical ...


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