United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
H. Rich III, United States Magistrate Judge
Social Security Disability (“SSD”) 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 (i) erroneously discounted the opinions of her
medical providers, (ii) failed to adequately evaluate the
impact of her obesity, and (iii) erroneously deemed her
statements regarding her symptoms and limitations only
partially credible. See Itemized Statement of
Specific Errors (“Statement of Errors”) (ECF No.
13) at 5-11. I find no reversible error and, accordingly,
recommend that the court affirm the commissioner's
to the commissioner's sequential evaluation process, 20
C.F.R. § 404.1520; 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, 2013, Finding 1, Record at 12; that,
through her date last insured (“DLI”), she had
the severe impairments of status-post bilateral mastectomy
and breast cancer treatment (now in remission), bipolar
disorder, and post-traumatic stress disorder
(“PTSD”), Finding 3, id.; that, through
her DLI, she had the residual functional capacity
(“RFC”) to perform a limited range of light work
as defined in 20 C.F.R. § 404.1567(b), Finding 5,
id. at 16-17; that, through her DLI, considering her
age (30 years old, defined as a younger individual, on her
DLI), 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 24;
and that she, therefore, had not been disabled from August
13, 2012, her alleged onset date of disability, through
December 31, 2013, her DLI, Finding 11, id. at 25.
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;
Dupuis v. Sec'y 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); 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).
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); 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); 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); Social Security Ruling 82-62 (“SSR
82-62”), reprinted in West's Social Security
Reporting Service Rulings 1975-1982, at 813.
Weight Given to Medical Provider Opinions
Opinion of Dr. Dixon
record indicates that, on May 21, 2014, L. Susan Dixon, M.D.
of Counseling Services, Inc., met with the plaintiff for the
first time, examined her, and completed a form titled
“Medical Source Statement of Ability To Do Work-Related
Activities (Mental).” See Record at 671-73,
677-79. The form instructed the medical source to provide an
opinion of what the individual could still do despite his/her
impairments and to base that opinion on the source's
“findings with respect to medical history, clinical and
laboratory findings, diagnosis, prescribed treatment and
response, and prognosis.” Id. at 671.
Dixon opined that the plaintiff's ability to understand,
remember, and carry out instructions - even simple ones - was
markedly restricted, as was her ability to make judgments on
complex work-related decisions. See id. at 671.
Asked to identify “the factors (e.g., the particular
medical signs, laboratory findings, or other factors
described above)” that supported her assessment, she
replied: “[status-post] chemotherapy [with] subsequent
impairment in memory/cognition[.]” Id.
Dixon also found that the plaintiff had marked limitations in
her ability to interact appropriately with the public,
supervisors, and coworkers and to respond appropriately to
usual work situations and changes in a routine work setting.
See id. at 672. She identified the factors
supporting that assessment as “emotional lability,
Dr. Dixon noted that the plaintiff's “ability to
manage stress is limited and she has poor adaptational skills
at present.” Id. She described the factor
supporting that assessment as “observation[.]”
indicated that these limitations had been present since 2012.
See id. at 672.
progress note of the plaintiff's May 21, 2014, visit, Dr.
Dixon indicated that, on mental status examination, the
plaintiff was “a tearful, casually dressed white
female” who made “good eye contact” and had
“mildly rapid” speech, a variable affect and
anxious mood, appearing “somewhat agitated at times[,
]” but denied suicidal or homicidal thoughts or
psychotic symptoms, had no abnormal involuntary movements,
and had fair insight and judgment. Id. at 678. Dr.
Dixon diagnosed bipolar II disorder (unstable), generalized
anxiety disorder (unstable), and PTSD, and assessed the
plaintiff with a Global Assessment of Functioning
(“GAF”) score of 50. See id.
accorded little weight to Dr. Dixon's report, explaining:
When asked for medical signs, laboratory findings, or other
factors to support this assessment, [s]he states only,
“observation, ” but does not describe what [s]he
has directly observed to support [her] opinion. The
contemporaneous records from the [plaintiff]'s therapist
at Counseling Services reflect good eye contact, logical,
organized relevant thought content[, ] an appropriate mood,
being pleasant, engaged and cooperative and sitting
throughout the session in June 2014. Moreover there are no
medical records to show that Dr. Dixon actually performed a
mental status examination at Counseling Services or
Psychiatric Associates of Southern Maine.
The undersigned finds Dr. Dixon's report conclusory and
against the weight of the record as a whole. The conclusions
reached by this physician are not supported by medically
acceptable signs, symptoms, and/or laboratory findings, and
appear to be based totally on the [plaintiff]'s
subjective complaints and out of proportion to the objective
evidence obtained during and for the course of treatment.
While mental illness and its symptoms are not quantitatively
measurable or identifiable on laboratory tests or imaging
studies, mental health professionals are trained to make
clinical findings based on their observations. In this case,
there are no treatment records containing such observations
to substantiate such degrees of limitation and there is
absolutely no evidence whatsoever to support a marked degree
of limitation in the [plaintiff]'s ability to understand,
remember and carry out simple instructions, or even in her
ability to interact with others. Even though this report is
from a specialist, Dr. Dixon's opinion is inconsistent
and not supported by the medical evidence as a whole.
Therefore, this medical source statement is more akin to an
advocacy opinion and thus is accorded little weight.
Id. at 22 (citations omitted).
plaintiff argues that the ALJ erroneously rejected Dr.
Dixon's opinion on the improper bases that (i) it
constituted an advocacy opinion, (ii) the record contained no
evidence that Dr. Dixon had ever examined the plaintiff
before issuing her medical source statement, and (iii) it was
inconsistent with the record as a whole. See
Statement of Errors at 6-7. At oral argument, her counsel
added that, while the ALJ had correctly considered Dr. Dixon
a “treating source, ” he erred in not providing
the “good reasons” required for the assignment of
weight to a treating source's opinion. 20 C.F.R. §
404.1527(c)(2) (“Generally, we give more weight to
medical opinions from your treating sources, since these
sources are likely to be the medical professionals most able
to provide a detailed, longitudinal picture of your medical
impairment(s) and may bring a unique perspective to the
medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual
examinations, such as consultative examinations or brief
hospitalizations. . . . We will always give good reasons in
our notice of determination or decision for the weight we
give your treating source's medical opinion.”).
no reversible error in the ALJ's evaluation of the Dixon
as counsel for the commissioner contended at oral argument,
the ALJ neither characterized Dr. Dixon as a treating source,
see Record at 22, nor was he required to do
The plaintiff's counsel cited Blevins v.
Berryhill, No. 5:16cv310-WTH/CAS, 2017 WL 6330823 (N.D.
Fla. July 7, 2017) (rec. dec., aff'd Dec. 11,
2017), for the proposition that a claimant's ongoing
relationship with a medical practice can render an affiliated
physician who has examined her only once a treating source.
See Blevins, 2017 WL 6330823, at *7-9 (applying
treating source rule in circumstances in which ...