Keith C. v. Social Security Administration Commissioner

          REPORT AND RECOMMENDED DECISION

          John C. Nivison, U.S. Magistrate Judge.

         On 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).

         Following a review of the record, and after consideration of the parties' written arguments, I recommend the Court affirm the administrative decision.

         The Administrative Findings

         This 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.)^[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.

         The ALJ 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.^[2] (Id. ¶ 6.)

         Standard of Review

         A court 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).

         Discussion

         Plaintiff 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.

         1. Concentration, persistence, and pace

         According 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.)

         The ALJ based her findings regarding Plaintiff's mental limitations principally on the hearing testimony of Ira Hymoff, Ph.D.^[3] (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.^[4] (Response at 4 - 5, citing Ex. 14F, R. 720, Ex. 18F, R. 744 - 45.)

         Given 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, ...