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John S. v. Social Security Administration Commissioner

United States District Court, D. Maine

February 6, 2019

JOHN S., Plaintiff


          John C. Nivison U.S. Magistrate Judge.

         On Plaintiff John S.'s application for disability insurance benefits under Title II of the Social Security Act, Defendant, the Social Security Administration Commissioner, found that Plaintiff has severe impairments, but retains the functional capacity to perform substantial gainful activity. Defendant, therefore, denied Plaintiff's request for disability 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 consideration of the parties' arguments, I recommend the Court affirm the administrative decision.

         The Administrative Findings

         The Commissioner's final decision is the May 24, 2017, decision of the Administrative Law Judge. (ALJ Decision, ECF No. 9-2.)[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.

         The ALJ found that Plaintiff has severe, but non-listing-level impairments consisting of degenerative disc disease, osteoarthritis, and hypertension. (ALJ Decision ¶¶ 3, 4, R. 20 - 22.) Although Plaintiff had certain mental health diagnoses, which the ALJ recognized, the ALJ found the record did not establish a severe mental health impairment, nor an impairment that would interfere with the performance of basic work activity. (Id. ¶ 3.) The ALJ determined that Plaintiff retains the residual functional capacity (RFC) to perform substantial gainful activity involving “simple work activities” and light exertion, up to six hours of sitting, standing, and walking (each) in an eight-hour day, occasional postures, and occasional reaching, handling, and fingering, provided that the work does not require Plaintiff to climb ladders, ropes and scaffolds, and does not expose him to vibrations and hazards. (Id. ¶ 5, R. 24.)

         The ALJ accepted the testimony of a vocational expert that a person with Plaintiff's RFC, age, education, and vocational background could perform work that exists in substantial numbers in the national economy, including in representative jobs such as furniture retail clerk, usher, and storage facility rental clerk. (Id. ¶ 10, R. 29 - 30.) Based on his findings, the ALJ determined that Plaintiff was not under a disability for purposes of the Social Security Act. (Id. ¶ 11, R. 30.)

         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).


         Plaintiff argues the ALJ did not cite substantial evidence in support of his assessment regarding the limitations imposed by Plaintiff's osteoarthritis and mental health. Plaintiff further contends the ALJ erred when he refused to consider evidence submitted fewer than five days prior to the hearing.

         1. The ALJ's assessment of osteoarthritis

         Plaintiff contends the ALJ's decision is not supportable principally because the ALJ failed to consider properly the opinion of Robert Phelps, M.D, a treating source. When he examined Plaintiff in January 2016, Dr. Phelps observed that Plaintiff demonstrated good flexion, extension and rotation in his cervical spine, good shoulder motion with left sided pain, good elbow and forearm motion, good wrist motion with pain bilaterally, and good hand dexterity bilaterally. (R. 405.) Dr. Phelps noted the presence of arthritis, by history. (R. 407.) In his source statement, Dr. Phelps assessed “marked” limitations regarding Plaintiff's ability to lift, carry, stand, walk, sit, push and pull. He also assessed moderate to marked limitation in Plaintiff's ability to handle, finger and feel. (Id.)

         The ALJ observed the opinion evidence “is notable [in] that no treating provider has described physical limitations in excess of the limitations found by State agency medical consultants, Archibald Green, D.O. (Ex. 1A, R. 91 - 93), and Benjamin Cortijo, M.D. Both Dr. Green and Dr. Cortijo determined that despite his impairments [Plaintiff] ...

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