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