United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
C. Nivison, U.S. Magistrate Judge.
Plaintiff's application for disability insurance benefits
under Title II of the Social Security Act, and for Medicare
benefits under the Medicare Qualified Governmental Employee
program, Defendant, the Social Security Administration
Commissioner, found that Plaintiff has severe impairments,
but retained the functional capacity to perform substantial
gainful activity through the dates for which he was covered
under the programs. Defendant, therefore, denied
Plaintiff's request for benefits. Plaintiff filed this
action to obtain judicial review of Defendant's final
administrative decision pursuant to 42 U.S.C. § 405(g).
a review of the record, and after consideration of the
parties' written arguments, I recommend the Court affirm
the administrative decision.
matter is before the court following multiple administrative
and court-ordered remands for refinement of the residual
functional capacity analysis. The Commissioner's final
decision is the January 27, 2016, decision of the
Administrative Law Judge. (ALJ Decision, ECF No.
10-11.) The ALJ's decision tracks the familiar
five-step sequential evaluation process for analyzing social
security disability claims, 20 C.F.R. §§ 404.1520,
found that Plaintiff has severe, but non-listing-level
impairments consisting of degenerative disc disease of the
lumbar spine, L4 - 5 disc herniation and annular tear,
depression and obesity. (ALJ Decision ¶ 4 - 5.) The ALJ
further found Plaintiff has the residual functional capacity
(RFC) to perform light-exertion work, and to stand, walk and
sit for 6 hours each in an 8 hour day, provided he is able to
change positions every 2 hours for 1-2 minutes before
resuming the original position to alleviate postural
discomfort, and provided he never is required to negotiate
certain hazards, obstacles and environments, or assume
certain postures. As to Plaintiff's mental RFC, the ALJ
determined that Plaintiff can understand, remember and carry
out simple, repetitive instructions and can persist at that
level of complexity for 8 hours a day, 5 days a week
consistently; can interact with the general public,
co-workers and supervisors; and can adapt to routine changes
in the work setting. (Id. ¶ 6.)
must affirm the administrative decision provided the decision
is based on the correct legal standards and is supported by
substantial evidence, 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).
argues the ALJ erred because she (1) failed to account
adequately for limitations in concentration, persistence, and
pace arising from the combined effect of depression and
chronic pain; (2) rejected a treating source opinion without
good reason; (3) assessed the degree of impairment caused by
obesity without any expert guidance; (4) found Plaintiff
engaged in substantial gainful activity in an accommodated
job; (5) failed to comply with the most recent order of
remand; and (6) failed to weigh or consider a Maine Public
Employees Retirement System disability determination and the
nurse practitioner opinion on which it was based.
Concentration, persistence, and pace
to Plaintiff, the ALJ failed to consider the extent to which
Plaintiff's chronic pain exacerbates the concentration,
persistence, and pace impairment caused by Plaintiff's
depression. (Statement of Errors at 7 - 10.) Plaintiff argues
the ALJ's finding of moderate impairment required the ALJ
to find that Plaintiff's mental RFC precludes working at
“pace.” (Id. at 9 - 10.)
based her findings regarding Plaintiff's mental
limitations principally on the hearing testimony of Ira
Hymoff, Ph.D. (ALJ Decision, R. 965, 973; Def.'s
Response at 3.) The ALJ also observed that Plaintiff's
“treating physicians have not opined that his ability
to maintain attention and concentration [on] work tasks
… is significantly compromised by pain and/or
prescribed medication.” (R. 965, citing Exs. 15F, 19F,
ECF No. 10-8.) Furthermore, the ALJ noted that
imaging-related findings have been characterized as mild,
that Plaintiff has been able to engage in a variety of
activities of daily living such as camping, fishing,
yardwork, motorcycling, and biking, and that the longitudinal
approach to treatment was conservative. (R. 968, 970.)
Defendant has also observed that Plaintiff's treating
provider, Michael Totta, M.D., characterized the degree of
Plaintiff's limitation from pain as a
“motivational” issue. (Response at 4 - 5, citing
Ex. 14F, R. 720, Ex. 18F, R. 744 - 45.)
the record before the Court, the ALJ's decision not to
impose a restriction that precluded working at simple tasks
at “pace” is supportable. The ALJ considered all
of the relevant evidence, including both the medical evidence
and the evidence of Plaintiff's activity level, and
determined that a limitation for pace was not warranted.
“Issues of credibility and the drawing of permissible
inference from evidentiary facts are the prime responsibility
of the [Commissioner].” Rodriguez v.
Celebrezze, 349 F.2d 494, 496 (1st Cir. 1965). See
also Shaw v. Sec'y of HHS, No. 93-2173, 1994 WL
251000, * 4, 1994 U.S. App. LEXIS 14287, ...