United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
C. Nivison U.S. Magistrate Judge.
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).
a review of the record, and consideration of the parties'
arguments, I recommend the Court affirm the administrative
Commissioner's final decision is the May 24, 2017,
decision of the Administrative Law Judge. (ALJ Decision, ECF
No. 9-2.) 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,
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.)
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.)
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).
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.
The ALJ's assessment of osteoarthritis
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.
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] ...