MARGARET J. KRAVCHUK, Magistrate Judge.
The Social Security Administration found that Bart Langley has severe degenerative disk disease but retains the functional capacity to perform substantial gainful activity in occupations existing in significant numbers in the national economy, resulting in a denial of Langley's application for disability insurance and supplemental security income benefits under Title II and Title XVI of the Social Security Act. Langley commenced this civil action to obtain judicial review of the final administrative decision. I recommend that the Court affirm the administrative decision.
The Commissioner's final decision is the September 20, 2010, decision of Administrative Law Judge John L. Melanson because the Decision Review Board did not complete its review during the time allowed. Judge Melanson's decision tracks the familiar, five-step sequential evaluation process for analyzing social security disability claims, 20 C.F.R. §§ 404.1520, 416.920. (Docs. Related to Admin. Process, Doc. No. 10-2, R. 1, 6-18.
At step 1 of the sequential evaluation process, the Judge found that Langley last met the insured status requirements of Title II on December 31, 2006, and has not engaged in substantial gainful activity since November 13, 2002, the date of alleged onset of disability. (R. 9, Findings 1 & 2.)
At step 2, the Judge found that Langley suffers from a solitary "severe" physical impairment of degenerative disk disease of the lumbar spine. (R. 9, Finding 3.) The Judge deemed non-severe migraine headaches, attention deficit hyperactivity disorder, and alleged psychiatric conditions. As to the allegations of psychiatric impairment, the Judge assessed no-to-mild limitations in the relevant categories of mental functioning. (R. 10.) At step 3, the Judge found that the combination of impairments would not meet or equal any listing in the Commissioner's Listing of Impairments, Appendix 1 to 20 C.F.R. Part 404, Subpart P, specifically considering listing 1.04, disorders of the spine, but also considering the potential impact of a body mass index between 27 and 33, in a professed "abundance of caution." (R. 11, Finding 4.)
Prior to further evaluation at steps 4 and 5, the Judge assessed Langley's residual functional capacity. The Judge found that Langley's combined impairments result in the following capacity:
(R. 11, Finding 5.) This capacity is further restricted by a requirement that Langley "avoid hazardous work environments with unprotected heights or moving machinery" and also "moderate exposure to irregular or sloping work surfaces." (Id.)
At step 4, the Judge found that this degree of limitation precluded past relevant work as a corrections officer or tractor trailer driver because of the exertional demands of such work. (R. 15, Finding 6.) For purposes of the step 5 analysis, the record establishes that Langley was born in 1966 (making him a "younger individual"), has at least a high-school education, and can communicate in English. Given Langley's presentation, the transferability of job skills is not material to the step 5 determination. (R. 16, Findings 7-9.) The Judge presented a vocational expert with this vocational profile and the residual functional capacity findings and found, based on the vocational expert's hearing testimony, that Langley could still engage in other substantial gainful employment, including as a warehouse order caller, assembler of small products, touch-up screener, routing clerk, and maintenance dispatcher. As for the dispatcher job, the Judge noted a discrepancy between the vocational expert's testimony and the information found in the Dictionary of Occupational Titles, but found that the vocational expert explained the conflict based on the fact that Langley's past work in corrections and truck driving would not be unlike the duties involved in the dispatch occupation. (R. 17, Finding 10.) Because the Judge found that Langley could transition to other work despite his impairment, Langley was found not disabled. (R. 17, Finding 11.)
Langley argues that the Judge erred in his residual functional capacity finding and that, consequently, the vocational expert testimony that underlies the step 5 finding depends on a "seriously flawed RFC hypothetical." (Statement of Errors at 8, Doc. No. 12.) This argument rests on many sub-arguments that will be addressed after a recitation of the expert medical opinion evidence.
The Court must affirm the administrative decision so long as it applies the correct legal standards and is supported by substantial evidence. This is so even if the record contains evidence capable of supporting an alternative outcome.
Mr. Langley was involved in a motor vehicle accident in late 2002 and suffers from chronic back and right hip pain. The MRI report associated with his treatment describes disk bulging at L3-4 and L5-S1. It also describes mild degenerative joint disease at L1 through L4 and at L5-S1. The L3-4 disk space shows "mild to moderate acquired spinal stenosis and bilateral neural foraminal stenosis." (Ex. 1F, R. 397.) The following relevant expert assessments are found in the record.
Paul Stucki, Ph.D., provided Maine Disability Determination Services with a physical residual functional capacity assessment based on his review of medical records compiled through October 11, 2006. (R. 488.) He identified both degenerative disk disease and joint disease as the relevant severe impairments and assessed a restriction to light exertion, 6 hour sit, 6 hour stand/walk, a capacity to frequently assumed work-related postures, but to balance only occasional. (R. 481-83.)
Scott Hoch, Ph.D., performed the Commissioner's psychiatric review technique in light of his review of medical records compiled through October 11, 2006. He concluded that Langley's alleged mental impairment is not severe for vocational purposes, identifying only mild ADHD. (R. 489-90.) He assessed no mental restrictions concerning activities of daily living, mild difficulties maintaining social functioning, and mild difficulties maintaining concentration, persistence, and pace. (R. 499.) Dr. Hoch did not find a need for a mental residual functional capacity assessment.
Donna Gates, Ph.D., performed a consultative examination of Langley in December 2007 on referral from Maine Disability Determination Services for clinical interview, mental status examination, and diagnosis. Dr. Gates ultimately did not offer a psychiatric diagnosis, but identified "chronic pain" as an Axis IV concern. She offered a global assessment of functioning score of 70. Dr. Gates found Langley to be capable of following work rules and relating well to others. She opined that his judgment would be adequate for jobs within his vocational ability. She found that Langley likely can manage a mild level of work related stress and complete detailed job instructions. She described Langley as someone with some reactive depressed mood in relation to lifestyle changes and some challenge with concentration and memory that likely arises as a side effect from pain medication. She opined that Langley would be a reliable worker for work within his physical ability.
Lewis Lester, Ph.D., supplied a psychiatric review technique form on request from Maine Disability Determination Services. He reviewed the mental health records through Dr. Gates's November 2007 report. (R. 554.) Dr. Lester identified the relevant diagnosis as an affective disorder described as depressive disorder NOS, but opined that the impairment is not severe for social security purposes. (R. 542, 545.) He assessed that there is insufficient evidence of ADD. (R. 554.) He characterized the associated mental limitations as "mild and non-severe by Maine Disability Determination Services criteria." (
Edward Harshman, M.D., performed a consultative examination for Maine Disability Determination Services. He found that Langley's right sacroiliac joint is painful and possibly loose, that there is probably a poorly healed compression fracture at T8 and that both conditions "can be definitively treated." Assuming that Langley was not likely to improve, Dr. Harshman assessed a capacity to sit and stand freely and to engage in light exertion, but not to stoop, crouch, or crawl. (R. 558.)
Iver Nielson, M.D., supplied Maine Disability Determination Services with a physical residual functional capacity assessment. According to Dr. Nielson, the records indicate the existence of sciatica, two herniated disks, and "degenerative bone disease, right hip." (R. 559.) He assessed a capacity for light exertion, 6 hours sitting in an 8-hour workday, 6 hours of walking or standing, ruled out ladders, ropes, scaffolds, kneeling and crawling, but found an ability to adopt other postures on an occasional basis. (R. 560-61.) Dr. Nielson also specified that Langley must avoid exposure to hazards such as irregular, uneven walking surfaces. (R. 563.) According to Dr. Nielson, the "[o]bjective evidence fails to fully support the magnitude of [Langley's] complaints/allegations." (R. 564.)
Four months after Dr. Nielson's physical RFC assessment, Maine Disability Determination Services sought another assessment from Richard Chamberlin, M.D., based on Langley's request for reconsideration. Dr. Chamberlin's assessment of functional capacity was the same as Dr. Nielson's (R. 568-71), except that he called for regular rest periods every two hours (R. 569). Dr. Chamberlin noted that methadone provides relief for chronic pain symptoms. According to Dr. Chamberlin, Langley's "alleged degree of pain and disability consistently seems out of proportion to the objective findings as documented in his primary physician's office notes." (R. 572.)
Scott Hoch, Ph.D., conducted the psychiatric review technique for purposes of reconsideration. Like his review 17 months prior, he once more concluded that the mental health evidence reflected a non-severe degree of impairment for social security disability purposes, but he reclassified the extant condition as "depression (NOS)." (R. 575.)
Kathleen Childs, FNP-C, a treatment provider, supplied the Commissioner with a medical source statement. She wrote "unknown" under most questions on the form. She indicated, in sum, that Langley would have to periodically alternate position, lacks mobility to some degree, takes methadone for pain control, and takes Adderall for ADHD. She also identified chronic pain syndrome as a relevant consideration for mental impairment, but did not assess the degree of impairment. (R. 610-11.)
Maine Disability Determination Services sought a second consultative examination from Dr. Gates. Following her second consultation with Langley, Gates diagnosed "adjustment reaction with mixed depressed mood and anxiety features (nonclinical)," with a GAF score of 70. She noted that Langley was complaining of migraines in addition to chronic back pain. Dr. Gates opined that there was no indication of malingering on Langley's part and that he did not appear to be exaggerating the nature of his physical or emotional complaints. (R. 616.) According to Dr. Gates, Langley's physical restrictions are the source of any appreciable mental impairment. However, in the course of reciting the view that Langley is psychiatrically fit for mental work activity, Dr. Gates observed: "[H]e is able to manage a mild level of work-related stress and function independently on simple jobs." (R. 617.)
Langley's counsel obtained a physical examination from Robert N. Phelps, Jr., M.D., including a review of the medical records. Dr. Phelps described the back impairment as follows:
(R. 626.) Dr. Phelps also noted a history of migraines described as follows:
(R. 622.) Dr. Phelps offered a medical source statement to the effect that Langley has less than 10 pounds lifting capacity, can stand for less than 2 hours, sit for less than 6 hours, is markedly limited in the use of his upper and lower extremities, and can assume work-related postures only "rarely." Dr. Phelps explained:
(R. 627.) Dr. Phelps additionally opined that Langley's attention and concentration will be negatively impacted by pain. (Id.)
Judge Melanson called Peter Webber, M.D., as a medical expert at Langley's hearing. After describing the medical records in general terms, Dr. Webber indicated:
(R. 88-89.) Dr. Webber next testified that, in terms of depression, there are not "any ongoing evaluations or ongoing counseling that would help me make [a] determination" of any worsening adjustment reaction or disorder subsequent to Dr. Gates's opinion of October 2009. (R. 89.) Judge Melanson then asked that Dr. Webber consider the evidence of migraine headaches. Dr. Webber responded:
(R. 89.) Asked to evaluate Dr. Phelps's contribution to the record, Dr. Webber testified:
As for spine and joint impairment, Dr. Webber observed that:
(R. 90.) He explained:
(R. 91.) Judge Melanson asked Dr. Webber to consider Dr. Chamberlin's residual functional capacity assessment of an ability to engage in light work, by comparison. Dr. Webber opined:
(R. 93.) On questioning from Langley's hearing representative, Dr. Webber allowed that "anything is possible" in response to an inquiry whether it was possible that Langley has the limitations described by Dr. Phelps. (R. 92.)
Langley maintains that the evidence reliably demonstrates that he is disabled based on the combined impact of chronic pain associated with spinal impairment, hip impairment, and migraines, and mental side effects arising from pain medication. Langley does not separately advance an argument that the Commissioner erroneously evaluated his psychiatric diagnoses as non-severe, except to maintain that his chronic pain and related medication exact a toll on his ability to maintain concentration and handle work-related stress. Nor does Langley maintain that his spinal impairment satisfies or equals a listing.
Langley contends that no expert testimony supports the Commissioner's decision to disregard the evidence concerning migraines. (Statement of Errors at 20.) In general, the claimant is responsible for providing the medical evidence needed to support the residual functional capacity finding he advocates, though the Commissioner has an obligation to facilitate the development of the record, such as by arranging for consultative examinations, as needed, and referring the medical records for expert review and assessment. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). The Judge concluded that the record evidence of migraines did not reliably demonstrate a severe impairment. In support of this finding, the Judge explained:
(R. 9.) I find that the Judge's assessment of the migraine question does not call for remand. The Judge gave the issue fair consideration and concluded that the medical records do not reflect more than a sporadic problem that is amenable to treatment with medication. Langley bears the burden of persuasion on the issue and his limited presentation fails to demonstrate a condition that cannot be treated to prevent vocational impairment. Indeed, the medical record suggests just the opposite. That Dr. Webber could not adequately evaluate the issue based on the medical record, that a treatment provider indicated that the problem is amenable to treatment in a reasonable timeframe, and that Langley himself has not substantiated it in his Statement of Errors are all reliable indicators that the Judge's finding is one that a reasonable mind might accept as supported by substantial evidence.
According to Langley, the Commissioner's residual functional capacity finding does not adequately reflect Langley's "severe chronic pain," both in terms of the degree to which pain limits mental functioning and in relation to physical exertion, movement, and postures, and that the pain analysis does not follow the proper method of analysis. (Statement of Errors at 9-13, citing
In support of his step 2 finding, the Judge specifically referenced the MRI evidence of "mild degenerative joint disease at L1 through L4 and L5-S1." (R. 9.) Moreover, he appropriately flagged Langley's complaint that he experiences pain radiating into his right hip and intermittent grinding pain. (
Judge Melanson's residual functional capacity finding accounts for back and hip pain by restricting Langley to light-exertion work that would permit him to, among other things, adjust between sitting and standing as needed, stay off the floor (no kneel/crawl), and only occasionally balance, stoop, crouch, or climb ramps and stairs. According to Judge Melanson, "the overall data does not reflect the severe level of impairment from pain and restricted mobility that is as debilitating as [Langley] professes." (
In its
Dr. Gates offered an assessment that Langley faces "some challenge with concentration and memory that is likely a side effect of medication for pain." (R. 540.) However, she also indicated in the same paragraph that Langley would likely be a reliable worker for work he was physically able to perform. (
The Judge did not ignore this concern. He addressed it, in particular, in his discussion of attention deficit disorder. The Judge observed that Langley's treatment for this condition, the medication Adderall, controls the symptoms of the disorder and results in improved concentration and intact memory. (R. 10, citing Exs. 4F, 19F, 24F.) Later, the Judge emphasized that his review of the treatment records did not turn up any reports to providers about these symptoms or entries by the providers to the effect that side effects from medications impair Langley's mental status. (R. 12.) Langley's Statement of Errors does not contradict these specific observations. Instead, Langley points to his own testimony, the observations made by Dr. Gates in her reports, and a contention that Dr. Phelps specifically diagnosed attention and concentration deficits arising from pain and medication side effects at page 628 of the record.
Dr. Phelps generated his own medical report form that roughly outlines the physical residual functional capacity form and medical source statements ordinarily used by the Commissioner. However, in between the typical listing of visual/communicative limitations and environmental limitations, Dr. Phelps's form inserts a heading that reads:
(R. 628.) It is this opinion that Langley's counsel now points to in support of an argument that the Judge was required to identify countervailing proof from another expert in order to leave such an impairment out of his residual functional capacity finding. However, because Dr. Phelps's report is a report by a consultative examiner (rather than a treatment provider), I am not persuaded that it has a dispositive impact on this case. Moreover, I note that the opinion is not contextualized in terms of whether the alleged impairment rules out, for example, simple work. For these reasons, I regard it as no more than equivalent to the observation offered by Dr. Gates. Dr. Gates has opined that Langley has a capacity for at least simple work despite any relative shortcomings in his attention and concentration.
Because the Judge found that Langley no longer has the functional capacity to return to his former lines of work, the evaluation proceeded to step 5. At step 5, the burden shifted to the Commissioner to demonstrate that a significant number of jobs exist in the national economy that the claimant could perform. 20 C.F.R. §§ 404.1520(g), 419.920(g);
At Langley's hearing, the vocational expert testified that someone with Langley's residual functional capacity, as found by the Judge, and Langley's vocational profile could successfully transition to work existing in significant numbers in the national economy, including into representative occupations such as:
All of these occupations were described as "SVP 2," meaning that they have a low level of vocational preparation. In addition to these, the vocational expert offered dispatcher, maintenance service (sedentary), DOT code 239.367-014, classified as SVP 3
At oral argument, the Commissioner took the position that even if Langley's capacity for exertion falls between sedentary and light, such that the light-duty occupations identified by the vocational expert will not satisfy the step 5 burden, the decision still should be affirmed because the vocational expert identified two sedentary occupations. Similarly, the Commissioner observed that even if Dr. Gates's opinion is regarded as requiring a restriction to simple and low stress occupations, all but the dispatcher job would remain. The Commissioner described "simple" as an occupation with a specific vocational profile of 1 or 2. This was an invitation, I presume, for me to recommend a change in the District's longstanding perspective that the SVP scores do not alone dictate whether a job is simple.
The Commissioner may satisfy his step 5 burden with evidence concerning a solitary occupation. 20 C.F.R. §§ 404.1566(b), 416.966(b) (calling for "a significant number of jobs (in one or more occupations)"). In this case, the touch-up screener occupation is sufficient—a low-stress, "simple" occupation with a sit/stand option, that is otherwise consistent with the Judge's residual functional capacity finding—because it exists in substantial numbers in the national economy: "250,000 plus jobs," according to the vocational expert. (R. 95.)
For the reasons set forth in the foregoing discussion, I RECOMMEND that the Court affirm the Commissioner's final decision and enter judgment in favor of the Commissioner.
