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Scott W. v. Social Security Administration Commissioner

United States District Court, D. Maine

April 17, 2019

SCOTT W., Plaintiff
v.
SOCIAL SECURITY ADMINISTRATION COMMISSIONER, Defendant

          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, Defendant, the Social Security Administration Commissioner, found that Plaintiff has a severe impairment in his left shoulder, 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 after consideration of the parties' arguments, I recommend the Court vacate the administrative decision and remand the matter for further proceedings.

         The Administrative Findings

         The Commissioner's final decision is the October 24, 2017 decision of the Administrative Law Judge. (ALJ Decision, ECF No. 7-2.)[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, 416.920.

         The ALJ found that Plaintiff has a severe, but non-listing-level impairment of left shoulder degenerative joint disease. (ALJ Decision ¶¶ 3-4, R. 19-20.) Given this impairment, the ALJ concluded Plaintiff has the residual functional capacity (RFC) to perform medium-exertion work, including occasional overhead reaching with his left upper extremity. (Id. ¶ 5, R. 20.) A vocational expert testified the limitation would not prevent Plaintiff from performing past relevant work as a store laborer. The ALJ accepted the vocational expert's testimony and at step 4 of the sequential evaluation process found that Plaintiff was not disabled. (Id. ¶¶ 6-7, R. 24-25.)

         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 contends the ALJ erred when he weighed the opinion evidence and Plaintiff's subjective report of symptoms. (Statement of Errors at 8-16.) Plaintiff also argues remand is required because the ALJ was not authorized to decide the matter. (Id. at 5-8.)

         Plaintiff's sole impairment is a left (non-dominant) shoulder impairment. Plaintiff contends the ALJ erroneously concluded that Plaintiff can use his left arm to reach occasionally overhead. Plaintiff argues the weight of the opinion evidence required the ALJ to find that work with the left arm above shoulder height is precluded.

         In December 2011, Plaintiff dislocated his left shoulder as the result of a workplace incident. Plaintiff subsequently treated with John Padavano, D.O., who in March 2012 performed an open left rotator cuff repair (an MRI revealed a partial thickness tear of the supraspinatus). (Ex. 3F, R. 288-89.) In a June 2012 practitioner's report submitted to the Maine Workers' Compensation Board, Dr. Padavano stated that Plaintiff, who was then 53 years of age, could no longer perform overhead work. (Ex. 9F, R. 455.) In a December 2012 progress note, Jeanne Scheddel, D.O., found that Plaintiff had a permanent “no overhead” restriction, but could lift 50 pounds to shoulder height. (Ex. 10F, R. 466-67.) Dr. Scheddel's practice released Plaintiff from its care on December 31, 2012. (Id., R. 468.)

         In January 2013, John Herzog, D.O., who performed an independent medical examination of Plaintiff in connection with workers' compensation proceedings, reported that Plaintiff expressed some problems with overhead lifting, but stated that he had regained some of his strength and had full range of motion. (Ex. 3F, R. 289.) In his assessment of Plaintiff's work capacity, Dr. Herzog wrote that he agreed with Dr. Scheddel's limitation on Plaintiff's overhead lifting capacity to 50 pounds. (R. 290.) In fact, Dr. Scheddel determined that Plaintiff could not perform overhead lifting.

         Dr. Herzog performed a second examination in July 2013. (Ex. 11F.) During the physical examination, Plaintiff reported his condition had worsened and that he experienced steady pain in his left shoulder. (R. 532.) Dr. Herzog noted that he heard a “click” in the shoulder during passive abduction beyond 100 degrees, and that Plaintiff would “wince” and reported “that is the thing that bothers him the most.” (Id.) Dr. Herzog assessed that Plaintiff had reached maximum ...


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