GEORGE Z. SINGAL, District Judge.
The United States Magistrate Judge filed with the Court on October 19, 2010, his Recommended Decision (Docket No. 17). Plaintiff filed his Objection to the Recommended Decision (Docket No. 18) on November 5, 2010. Defendant filed his Response to Plaintiff's Objection to the Recommended Decision (Docket No. 19) on November 22, 2010.
I have reviewed and considered the Magistrate Judge's Recommended Decision, together with the entire record; I have made a de novo determination of all matters adjudicated by the Magistrate Judge's Recommended Decision; and I concur with the recommendations of the United States Magistrate Judge for the reasons set forth in his Recommended Decision, and determine that no further proceeding is necessary.
JOHN H. RICH III, Magistrate Judge.
This Social Security Disability ("SSD") and Supplemental Security Income ("SSI") appeal raises several questions: whether the administrative law judge erred in evaluating the report of an examining physician; whether she correctly assessed the side effects of certain medications; whether she failed to address an expert assessment of the plaintiff's mental limitations; whether she properly determined the impact of a particular impairment; whether she complied with 20 C.F.R. § 404.1545(e); and whether she improperly determined that the plaintiff could perform the job of cashier II. In addition, the plaintiff asks this court to "reconsider and withdraw" its decision in Prescott v. Astrue, No. 09-23-B-W, 2009 WL 3148731 (D.Me. Sept. 30, 2009), aff'd Nov. 5, 2009. Plaintiff's Itemized
In accordance with the commissioner's sequential evaluation process, 20 C.F.R. §§ 404.1520, 416.920; Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir.1982), the administrative law judge found, in relevant part, that the plaintiff remained insured for purposes of SSD through September 30, 2008, Finding 1, Record at 14; that he suffered from the following impairments: mild degenerative changes of the right knee, very mild degenerative changes of the left knee, degenerative disc disease and degenerative arthritis of the cervical spine (since January 2007), obesity, and lateral epicondylitis of the right elbow, impairments that were severe but did not, considered singly or in combination, meet or medically equal the criteria of any impairment listed in Appendix 1 to 20 C.F.R. Part 404, Subpart P (the "Listings"), Findings 4-5, id. at 15-29; that he retained the residual functional capacity ("RFC") to lift and/or carry 10 pounds frequently and 20 pounds occasionally, sit, stand, or walk each for two hours at a time and a total of six hours in an eight-hour work day, to operate foot controls and/or pedals occasionally, to climb stairs and ramps occasionally, and to stoop, kneel, crouch, and crawl occasionally, but had to avoid climbing ladders, ropes, and scaffolds, avoid unprotected heights, and avoid constant handling and fingering, and was limited to fixed positioning of his head or neck for up to one hour before requiring a break from that position for 15 to 20 minutes and to the performance of routine, repetitive tasks, Finding 6, id. at 32; that he was unable to perform any past relevant work, Finding 7, id. at 37; that, given his age (a younger individual on August 14, 2003, the initial determination denial date), at least a high school education, work experience, and RFC, use of the Medical-Vocational Rules of Appendix 2 to 20 C.F.R. Part 404, Subpart P (the "Grid") as a framework for decision-making supported a finding that there were jobs existing in significant numbers in the national economy that the plaintiff could perform, Findings 8-11, id. at 38; and that the plaintiff had, therefore, not been under a disability, as that term is defined in the Social Security Act, at any time from August 14, 2003, through the date of the decision, May 22, 2009, Finding 12, id. at 39. The Decision Review Board did not complete its review of the administrative law judge's decision within the time allowed, id. at 1, making it the final determination of the commissioner. 20 C.F.R. § 405.420(a).
The standard of review of the commissioner's decision is whether the determination made is supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Manso-Pizarro v. Secretary of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st Cir.1981).
The administrative law judge reached Step 5 of the sequential process, at which stage the burden of proof shifts to the commissioner to show that a claimant can perform work other than his past relevant work. 20 C.F.R. §§ 404.1520(g), 416.920(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the commissioner's
The plaintiff's appeal also implicates Step 2 of the sequential process. Although a claimant bears the burden of proof at Step 2, it is a de minimis burden, designed to do no more than screen out groundless claims. McDonald v. Secretary of Health & Human Servs., 795 F.2d 1118, 1124 (1st Cir.1986). When a claimant produces evidence of an impairment, the commissioner may make a determination of non-disability at Step 2 only when the medical evidence "establishes only a slight abnormality or [a] combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work even if the individual's age, education, or work experience were specifically considered." Id. (quoting Social Security Ruling 85-28).
The plaintiff also alleges an error at Step 3 of the sequential process, at which stage a claimant bears the burden of proving that his or her impairment or combination of impairments meets or equals the Listings. 20 C.F.R. §§ 404.1520(d), 416.920(d); Dudley v. Secretary of Health & Human Servs., 816 F.2d 792, 793 (1st Cir.1987). To meet a listed impairment, the claimant's medical findings (i.e., symptoms, signs, and laboratory findings) must match those described in the listing for that impairment. 20 C.F.R. §§ 404.1525(a), 404.1528, 416.925(d), 416.928. To equal a listing, the claimant's medical findings must be "at least equal in severity and duration to the listed findings." 20 C.F.R. §§ 404.1526(a), 416.926(a). Determinations of equivalence must be based on medical evidence only and must be supported by medically acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. §§ 404.1526(b), 416.926(b).
The plaintiff was examined at the request of his attorney by Frank A. Graf, M.D., an orthopedic surgeon, whose report to the attorney is dated February 18, 2009. Record at 599. He now complains that the administrative law judge wrongfully rejected Dr. Graf's "assessment." Plaintiff's Itemized Statement of Errors ("Itemized Statement") (Docket No. 12) at 3. He contends that the administrative law judge "inappropriately interjected herself into the province of experts" and ignored "critical medical records" in doing so, inexplicably "cho[o]s[ing] not to send [the plaintiff] out for an orthopedic or neurologic consultative examination and instead rel[ying] upon her own medical views[.]" Id. at 4.
After reviewing much of the medical evidence in the file and reciting Dr. Graf's findings, Record at 15-19, the administrative law judge reached the following conclusion with respect to Dr. Graf's report:
Id. at 19 (emphasis in original).
The "most recent imaging studies" to which the administrative law judge apparently refers are those reviewed at the Veterans Administration Center in November 2008, which record a review of "[the plaintiff's] most recent lumbar spine imaging studies [that were] said to show minimal lumbosacral disc space narrowing, associated with mild degenerative joint disease." Id. at 18-19 (emphasis in original); see also Record at 609. The plaintiff asserts that the administrative law judge could only reject Dr. Graf's diagnosis if the record also contains "a definitive opinion to the contrary." Itemized Statement at 6. He cites no authority for this argument, and it is not a correct statement of Social Security law. Here, the administrative law judge cited medical evidence to support her rejection of Dr. Graf's conclusion; nothing further is required.
The plaintiff next contends that the administrative law judge "erroneously found that [the plaintiff's] lumbar spinal disorder was nonsevere" because "[h]er conclusion is directly contradicted by the medical record." Itemized Statement at 5. The "direct contradiction" apparently is supplied by a spinal CT scan showing "a right lateral disc herniation into the inferior aspect of [] the right neural foramen at the lumbosacral level of the spine [,]" which the administrative law judge "acknowledged." Id. (emphasis in original). The CT scan mentioned by the administrative law judge, Record at 16, was taken in 1993, long before the alleged onset date of February 1, 2003, id. at 12. To interpret this CT scan as establishing the existence of a severe lumbar spinal disorder seven years later would be to interpret raw medical data, a task that is forbidden to the administrative law judge and one in which this court certainly will not indulge. And, again, the administrative law judge was entitled to rely on later medical reports that found only mild degenerative disease in the lumbosacral area.
Finally, the plaintiff argues in conclusory fashion, Itemized Statement at 7, that
While it is true that an administrative law judge must include the limitations caused even by nonsevere impairments in his or her consideration of a claimant's RFC, here the plaintiff relies, to the extent that this argument is properly raised with sufficient amplification, on the "limitations as set forth by Dr. Graf based upon inclusion of a severe problem in the low back." Itemized Statement at 8. If the plaintiff proffers nothing other than the limitations set by Dr. Graf, based on his conclusion that a severe problem in the low back existed, then there are no identified limitations caused by any problem in the low back that the administrative law judge could have considered in connection with her determination of the plaintiff's RFC.
Next, the plaintiff contends that the administrative law judge "made her own, unsupported, assessment of the impact of the side effects of his medication upon his residual functional capacity[,]" and failed to accept his own statements about those side effects. Id. He asserts that there is no positive evidence in the record "to support [the administrative law judge's] assumptions on this issue." Id. He also concludes that the administrative law judge "invade[d] the province of experts" in this regard by "mak[ing] up her own medical assessment of a claimant's limitations." Id. at 9.
Specifically, the plaintiff asserts that the administrative law judge "assumed that the only limiting effect [of the plaintiff's medications] was to reduce his mental function to a level allowing only the performance of routine, repetitive tasks." Id. at 8. The administrative law judge's opinion says that "[a]lthough the claimant's counsel urged that . . . certain adverse mediation side effects would preclude the performance of [the] job, . . . [h]is adverse medication side effects are addressed by the residual functional capacity assessment set out above." Record at 38-39. In that earlier section of her opinion, the administrative law judge said:
Record at 36-37 (emphasis in original).
Contrary to the plaintiff's assertions, this section of the administrative law judge's opinion sets out in sufficient detail her reasons for rejecting most of the plaintiff's claims of specific side effects arising from prescribed medications, when he was actually taking those medications. Nor is the limitation ascribed to medication side effects by the administrative law judge "unsupported by substantial evidence." Itemized Statement at 4.
In choosing a limitation to the performance of routine repetitive tasks with avoidance of unprotected heights, the administrative law judge was making a common-sense connection between those limitations and the plaintiff's claimed medication side effects that she did not explicitly reject—sleepiness, disorientation, drowsiness. The administrative law judge also tied the limitation to simple repetitive tasks to the plaintiff's activities of daily living, id. at 37, another source of support in the record for her conclusions. There is no error in this regard.
The plaintiff also asserts, briefly, that the administrative law judge's failure to state what weight she gave to the finding of Dr. Rothstein of a moderate impairment in social functioning, with a corresponding limitation to simple instructions, requires remand. Itemized Statement at 9. This is a reference to the July 30, 2003, evaluation by Dr. Charles Rothstein, a state-agency reviewer. Id. at 512-29. Dr. Rothstein's assessment includes a check mark in the
But, the plaintiff ties this moderate impairment only to Dr. Rothstein's "corresponding limitation to simple instructions (R. . . . 528)." Itemized Statement at 9. The administrative law judge included a limitation to routine, repetitive tasks in the RFC that she assigned to the plaintiff. Record at 32. The plaintiff cites only Social Security Ruling 96-9p as authority for the necessarily-implied assertion underlying his argument: that each particular limitation mentioned by each medical source who evaluates a claimant, whether or not the reviewer actually examines the claimant, must be specifically addressed in the administrative law judge's opinion. That Ruling deals with the implications for an individual's ability to do other work of an RFC for less than a full range of sedentary work, Social Security Ruling 96-9p, reprinted in West's Social Security Reporting Service Rulings (Supp.2010), at 152. It does not support the broader implied proposition for which the plaintiff cites it.
This alleged error, if indeed it is one, can only be considered harmless on the showing made.
The plaintiff next contends that the administrative law judge imposed a physical limitation in the RFC that she assigned to him to account for his lateral epicondylitis of the right elbow, which she found to be severe, by relying solely "upon her own medical assessment," an error that entitles him to remand. Itemized Statement at 9-10. Again, he argues that the administrative law judge was required to adopt the limitations found by Dr. Graf with respect to this impairment. Id. at 10. Specifically, he asserts that the administrative law judge did not adopt Dr. Graf's limitation to occasional reaching (apparently only with the right arm) and therefore was required "to send Mr. Ferrante out for a consultative examination or to hold a further hearing with a medical advisor." Id.
The administrative law judge did find that the plaintiff's lateral epicondylitis of the right elbow was severe, Record at 15, but she also found that a treating physician, Dr. Johnson, "felt that [the plaintiff's] right lateral epicondylitis was under control and that he should have no difficulty lifting, carrying or handling objects"; that a March 2007 test for lateral epicondylitis produced no pain; and that, in May 2007, he had normal range of motion and strength in both elbows. Id. at 21-22. "[Dr. Stockwell] concluded [in May 2007] that the claimant [had] abilities, despite his impairments, to lift, carry and handle objects. . . `without functional deficit' based on manual muscle testing and range of motion assessment." Id. at 22. This discussion appears to be intended to support a finding that the epicondylitis
While this inconsistency might appear problematic at first blush, Dr. Graf, upon whose report the plaintiff relies to attack the administrative law judge's failure to include any limitations on reaching in her conclusion as to RFC, Itemized Statement at 10, does not tie the limitation to occasional reaching imposed by his report, Record at 606, to the epicondylitis.
However, there is no way to know from the evidence presented whether that diagnosis would be permanent or whether the condition would have continued for at least 12 months. One or the other would be necessary to allow the court or an administrative law judge somehow to infer that Dr. Graf must have based his reaching limitation on this impairment. It is the plaintiff's burden to demonstrate what limitations flow from his claimed impairments. He has not done so here.
The administrative law judge used the Grid only as a framework for decision-making. Record at 38, and, given her finding that the plaintiff's ability to perform the full range of light work was "impeded by additional limitations," id., she was required either to consult a vocational expert or to demonstrate substantial support in the record for the proposition that the significant nonexertional impairment or impairments at issue only marginally reduce the occupational base. E.g., MacFarlane v. Astrue, No. 07-132-P-H, 2008 WL 660225, at *2 (D.Me. Mar. 5, 2008) (and cases cited therein). Here, the administrative law judge relied on the testimony of a vocational expert, Record at 38, and there is nothing to suggest that she employed the alternate method. She discusses only one job identified by the vocational expert, that of cashier II, and the fact that she calls it "a representative sample" does not mean that the commissioner may now rely on other specific light jobs that may fit the terms of the administrative law judge's hypothetical question to the vocational expert eliciting testimony about this job.
The plaintiff first attacks this job because all light jobs require "standing up to six hours per day and lifting up to 20 pounds occasionally," which Dr. Graf's report does not support. Itemized Statement at 11. However, the administrative law judge found that the plaintiff could stand for a total of six hours in an eight-hour day and lift 20 pounds occasionally. Record at 32. My discussion of the plaintiff's claims with respect to Dr. Graf's report applies here. No error in the administrative law judge's treatment of Dr. Graf's conclusions has been demonstrated.
The plaintiff's more serious challenge to any reliance on the job of cashier II is that the limitation found by the administrative law judge to routine, repetitive tasks, if it means the same as a limitation to simple instructions under Social Security law, makes the cashier II job unavailable to him because the Dictionary of Occupational Titles assigns the job a GED reasoning level of 3, which is not compatible with a limitation to simple instructions. Itemized Statement at 12-13. I have recently recommended that this court adopt the principle
The plaintiff asserts that, if a limitation to routine, repetitive tasks, which is included in the RFC in this case, means the same thing as a limitation to simple instructions in other cases, then the GED reasoning level of 3 assigned to the cashier II job by the Dictionary of Occupational Titles means that this job is not available for the plaintiff. If, on the other hand, the two terms do not mean the same thing, he contends, then this court must "withdraw its decision in Prescott [v. Astrue, Civil No. 09-23-B-W, 2009 WL 3148731 (D.Me. Sept.30, 2009), aff'd Nov. 5, 2009 (Docket No. 18)] and find that a limitation to work limited to `simple' instructions cannot be assessed under the Grid rules at any exertional level." Itemized Statement at 13.
I reject the plaintiff's invitation to "withdraw" or otherwise disavow the recommended decision in Prescott. That case is easily distinguishable from this case, however the court might rule on the issue presented.
The vocational expert in this case based her testimony identifying the cashier II job in response to the administrative law judge's hypothetical question, at least in part, that she interpreted a limitation to routine, repetitive instructions
This case, therefore, should not be evaluated as if "routine, repetitive" instructions mean the same as "simple" instructions. It should rather be evaluated on its own terms. There is no need to consider whether a limitation to "simple" instructions implicates the GED reasoning level of 3. No "remand for clarification and more specific presentation to a [vocational expert]," Itemized Statement at 14, is necessary. The plaintiff does not contend that the vocational expert's explanation of the cashier II job as "unskilled or low semi-skilled" was wrong.
For the foregoing reasons, the recommend that the commissioner's decision be
Dated this 19th day of October, 2010.
