JOHN H. RICH, III, Magistrate Judge.
This Social Security Disability ("SSD") and Supplemental Security Income ("SSI") appeal raises the question of whether the administrative law judge supportably found the plaintiff capable of performing work existing in significant numbers in the national economy. The plaintiff seeks reversal and remand, contending that the administrative law judge failed to obtain the assistance of a medical expert at hearing to interpret raw medical data, namely, two 2012 MRI reports, and improperly rejected the residual functional capacity ("RFC") opinion of treating physician David Galbraith, M.D. See Plaintiff's Statement of Errors ("Statement of Errors") (ECF No. 13) at 7-16. I find no error and, accordingly, recommend that the court affirm the decision.
Pursuant to 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 met the insured status requirements of the Social Security Act through June 30, 2012, Finding 1, Record at 16; that he had severe impairments of degenerative disc disease of the cervical spine, status-post an anterior cervical discectomy and fusion of C5-6, and right shoulder impingement syndrome, Finding 3, id.; that he retained the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that he could lift and/or carry up to a maximum of 10 pounds frequently, stand and/or walk for about six hours in an eight-hour workday, sit for about six hours in an eight-hour workday, push, pull, or pedal within the weight tolerances for lifting and/or carrying, occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs, never climb ladders, ropes, or scaffolds, avoid overhead work, and avoid vibration, hazardous machinery, or unprotected heights, Finding 5, id. at 19; that, considering his age (43 years old, defined as a younger individual, on his alleged disability onset date, March 1, 2008), education (at least high school), work experience (transferable skills), and RFC, there were jobs existing in significant numbers in the national economy that he could perform, Findings 7-10, id. at 24; and that he, therefore, was not disabled from March 1, 2008, through the date of the decision, June 11, 2012, Finding 11, id. at 25. The Appeals Council declined to review the decision, id. at 1-3, making the decision the final determination of the commissioner, 20 C.F.R. §§ 404.981, 416.1481; Dupuis v. Secretary of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).
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 (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 evaluation 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, 482 U.S. at 146 n.5; Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the commissioner's findings regarding the plaintiff's RFC to perform such other work. Rosado v. Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).
The plaintiff sought treatment in 2008 for worsening of chronic neck and shoulder pain stemming from a fall from a height of 18 feet approximately 17 years earlier in which he fractured several ribs and his right distal clavicle and injured his neck and right shoulder. See Record at 330, 374. On October 1, 2009, following a series of medical visits and diagnostic tests, he underwent an anterior cervical decompression and fusion of his C5-6 vertebrae. See id. at 392-93.
Agency nonexamining consultant Robert Hayes, D.O., completed two RFC assessments, one prior to the plaintiff's fusion surgery, dated August 5, 2009, and one afterward, dated August 27, 2010. See id. at 425-33, 478-86. As of August 5, 2009, Dr. Hayes found the plaintiff capable of lifting 20 pounds occasionally and 10 pounds frequently, standing and/or walking with normal breaks for about six hours in an eight-hour workday, and sitting with normal breaks for about six hours in an eight-hour workday. See id. at 479. He indicated that the plaintiff could only occasionally climb ramps or stairs, could never climb ladders, ropes, or scaffolds, and could only occasionally crawl. See id. at 480. He stated that the plaintiff should avoid vibratory tools and hazards requiring good bimanual dexterity. See id. at 482. He explained that some limits due to known cervical spine and right shoulder problems were credible. See id. at 483.
As of August 27, 2010, Dr. Hayes found no change in the plaintiff's ability to stand, walk, sit, climb, or crawl, but deemed him capable of lifting only 10 pounds (either occasionally or frequently) and stooping, kneeling, and crouching only occasionally. See id. at 426-27. He stated that the plaintiff needed to avoid vibratory tools, tasks, and environments, hazardous machines, and unprotected heights. See id. at 429. He explained that some limits due to cervical disc disease and, to a lesser extent, carpal tunnel syndrome, were credible. See id. at 430. On January 14, 2011, a second agency nonexamining consultant, Antonio Medina, M.D., concurred with that opinion. See id. at 435.
For purposes of his 2010 RFC opinion, Dr. Hayes had the benefit of review of a July 20, 2010, report by agency examining consultant Robert Klotz, P.A., countersigned by Robert Stockwell, D.O., which stated, in relevant part:
Id. at 422; see also id. at 433.
On December 21, 2011, the plaintiff underwent cervical spine imaging that revealed "[s]atisfactory postoperative appearance without pathologic subluxation[,]" and on January 2, 2012, a cervical spine MRI revealed:
Id. at 521-23.
By letter dated January 11, 2012, F. Alan Hull, PA-C, of Maine Medical Partners Neurosurgery & Spine, wrote to the plaintiff:
Id. at 520.
On February 14, 2012, the plaintiff underwent a right shoulder MRI, which revealed "[d]eficiency at the posterior inferior glenoid likely relating to underlying dysplasia." Id. at 490. The physician reviewing the MRI stated that, given the plaintiff's history, he "would not exclude that this relates to remote trauma[,]" but he did not, "however, see evidence of labral tear." Id. On February 17, 2012, the plaintiff was seen by orthopedic specialist John W. Solari, M.D., who stated:
Id. at 487.
The plaintiff's treating primary care physician, David Galbraith, M.D., submitted an RFC opinion dated May 9, 2012, in which he stated, inter alia, that the plaintiff (i) probably could not consistently complete a normal workday and workweek without interruptions from physically based symptoms, (ii) was restricted to part-time work not to exceed two hours per shift, six hours per week, (iii) was limited to less than sedentary work in that he was unable to tolerate the prolonged standing or sitting needed for either light or sedentary work on a regular and sustained basis, and (iv) had extreme restriction of activities of daily living. See id. at 531-32, 534. Dr. Galbraith checked a box indicating that the plaintiff's functional limitations as described likely had persisted since March 1, 2008. See id. at 534.
The administrative law judge summarized Hull's findings that "recent imaging revealed a good fusion with no evidence of any nerve involvement" and that, "given the objective medical findings, the majority of the [plaintiff's] pain [was] likely related to his right shoulder[.]" Id. at 22. He gave significant weight to Dr. Hayes' 2010 RFC opinion and Dr. Medina's concurring opinion, little weight to Dr. Hayes' 2009 RFC opinion in view of subsequent medical evidence, some weight to the Klotz opinion that the plaintiff should not lift, carry, push, or pull more than 15 pounds, and little weight to the portions of his opinion limiting the plaintiff to standing, walking, or sitting for no more than two hours each and prohibiting bending, climbing, balancing, stooping, kneeling, crouching, or crawling. See id. at 23. He stated that Klotz had based his opinion on a single medical examination and that the longitudinal treatment record and the plaintiff's functional activities of daily living were inconsistent with those limitations. See id.
For reasons discussed below, he gave no weight to the Galbraith RFC opinion. See id.
The plaintiff complains that, in reaching these conclusions, the administrative law judge impermissibly interpreted the two 2012 MRI results without medical expert assistance. See Statement of Errors at 7-9; see also, e.g., Gordils v. Secretary of Health & Human Servs., 921 F.2d 327, 329 (1st Cir.1990) (Although an administrative law judge is not precluded from "rendering common-sense judgments about functional capacity based on medical findings," he "is not qualified to assess residual functional capacity based on a bare medical record."). He argues that the MRI reports appeared to provide objective medical evidence supporting his ongoing complaints of chronic, severe neck and right shoulder pain, and that the only two providers who assessed the right shoulder MRI report, Hull and Dr. Solari, disagreed in their interpretation, with Hull stating that he believed the majority of the plaintiff's pain was attributable to the shoulder, and Dr. Solari stating that he believed the problem was not shoulderbased. See id. at 8. He adds that neither Hull nor Dr. Solari stated that he disbelieved the plaintiff's chronic pain complaints, and both clearly were seeking explanations for them. See id. at 8-9.
However, as the commissioner contends, the administrative law judge did not arrive at an RFC finding based on interpretation of raw medical evidence. See Defendant's Opposition to Plaintiff's Itemized Statement of Specific Errors ("Opposition") (ECF No. 17) at 3-4. Instead, he implicitly found that the two 2012 MRI results did not undermine his reliance on Dr. Hayes' 2010 RFC opinion, as endorsed by Dr. Medina. As the commissioner points out, see id. at 5 & n.1, Hull and Dr. Solari did not arrive at clashing interpretations of the right shoulder MRI report. Instead, Hull concluded, based on what he construed as a relatively benign cervical MRI report, that the plaintiff's shoulder likely was the source of his pain, and Dr. Solari concluded, based on what he construed as a relatively benign shoulder MRI report, that the plaintiff's neck likely was the source of his pain. See Record at 487, 520. Thus, neither treating source found, based on assessment of the MRI result within his specialty, that there was an objective basis for the plaintiff's pain complaints. Based on these expert assessments, the administrative law judge, as a layperson, supportably could conclude that the 2012 MRI results did not provide objective evidence in support of greater restrictions than assessed by Drs. Hayes and Medina in 2010. He committed no error in failing to obtain the services of a medical expert at hearing to interpret those results.
The plaintiff next argues that the administrative law judge erred in attributing no weight to the Galbraith RFC opinion. See Statement of Errors at 9-16. I find no error.
A treating source's opinion on the nature and severity of a claimant's impairments is entitled to controlling weight if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with the other substantial evidence in [the claimant's] case record[.]" 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). However, the question of a claimant's RFC is among issues reserved to the commissioner, with respect to which even the opinion of a treating source is entitled to no "special significance" and cannot be assigned controlling weight. Id. §§ 404.1527(d)(2)-(3), 416.927(d)(2)-(3); Social Security Ruling 96-2p, reprinted in West's Social Security Reporting Service Rulings 1983-1991 (Supp. 2013) ("SSR 96-2p"), at 112.
When a treating source's opinion is not given controlling weight, it is weighed in accordance with enumerated factors. See 20 C.F .R. §§ 404.1527(c)(2), 416.927(c)(2).
The administrative law judge explained his handling of the Galbraith RFC opinion as follows:
Id. at 23 (citations omitted).
The administrative law judge had noted, earlier in his decision, that the record included (i) the plaintiff's April 2009 report to treating providers that he was manhandling and pulling tires and using a chainsaw, (ii) reports during the spring and summer of 2009 that he was stripping and applying roofing on a daily basis and cutting wood, (iii) a report that, as recently as the summer of 2011, he was using a car jack, and (iv) a report that, in the fall of 2011, he was using a chainsaw. See id. at 18. The administrative law judge observed, in the context of discrediting the plaintiff's subjective reports of disabling pain: "[A]s recently as the summer of 2011, the [plaintiff] is using a car jack, and in the fall of 2011, he is using a chainsaw. This is wholly inconsistent with the concept of disability." Id. at 20 (citations omitted).
The plaintiff takes issue with each of the administrative law judge's bases for discrediting the Galbraith opinion, contending that: shoulder and neck pain since March 1, 2008, given that (i) most occurred well before his October 1, 2009, surgery, (ii) the report regarding his chainsaw use in 2011 shed no light on the manner in which he used that tool, (iii) while using the chainsaw in 2011, he suffered an injury to his leg that he testified was due to his lack of right arm strength and speed, and (iv) with one possible exception, all of the activities exacerbated his neck/shoulder symptoms, consistent with his wife's testimony at hearing that he tended to push himself past his limits even though he knew it would not go well. See Statement of Errors at 11-12. The "concept of disability" does not require that a claimant not engage in certain normal daily activities. See id. at 13-14.
2. Dr. Galbraith's RFC opinion was not inconsistent with his findings on examination, which included moderate tenderness over the spine, moderate right paraspinal spasm at the cervical spine, a tender trapezius with focal areas spastic, right greater than left, and shoulder tenderness to resisted flexion. See id. at 14. It is also was supported by the Klotz opinion. See id. at 15.
3. The administrative law judge erred in discounting the opinion in part on the basis that Dr. Galbraith did not begin treating the plaintiff until three years after his alleged onset date of disability, given Dr. Galbraith's reliance on objective diagnostic evidence from the earlier period, including MRI studies. See id. at 15-16.
Nonetheless, the plaintiff falls short of demonstrating that the administrative law judge failed to supply good reasons for discrediting the Galbraith RFC opinion. As the commissioner underscores, see Opposition at 9-11, the plaintiff engaged in strenuous activities both before and after his surgery that require a significantly greater work capacity than the less than sedentary capacity assessed by Dr. Galbraith. As the commissioner notes, see id. at 9, there is evidence that the plaintiff performed some of these activities on a sustained basis, for example, roofing, without seeking medical assistance for an exacerbation each time the work was performed, see, e.g., Record at 336, 338. In any event, as the commissioner's counsel contended at oral argument, even accepting that the plaintiff pushed himself past his capabilities, thereby causing neck/shoulder pain exacerbations and leading to his chainsaw injury, the administrative law judge found him capable of performing light, not medium or heavy, work on a regular basis. See Finding 5, id. at 19.
The plaintiff cites caselaw for the proposition that a claimant's ability to engage in activities such as cooking, cleaning, doing laundry, and visiting friends is not necessarily inconsistent with a finding of disability, and does not constitute substantial evidence of ability to engage in substantial gainful activity, see Statement of Errors at 13-14 (citing, inter alia, Payton v. Shalala, 25 F.3d 684, 687 n.6 (8th Cir. 1994); Harris v. Secretary of Dep't of Health & Human Servs., 959 F.2d 723, 726 (8th Cir. 1992)), but it is distinguishable. The plaintiff was not merely engaging in normal household daily activities such as cooking and cleaning but, rather, undertaking such strenuous activities as roofing, manhandling tires, and using a chainsaw.
Moreover, the administrative law judge did not rely on those activities as evidence of the plaintiff's ability to engage in work requiring such capacities on a sustained basis but, rather, as a factor in choosing to credit the 2010 Hayes opinion that the plaintiff was capable of light work, with modifications, over that of Dr. Galbraith that he was capable of less than sedentary work. "While a claimant's activities of daily living, standing alone, do not constitute substantial evidence of a capacity to undertake full-time remunerative employment, an administrative law judge properly may take such activities into consideration in assessing the credibility of a claimant's allegations and in resolving conflicts in the evidence with respect to medical experts' and treating providers' opinions of a claimant's capabilities." Anderson v. Astrue, No. 1:11-cv-109-DBH, 2012 WL 283018, at *5 (D. Me. Jan. 30, 2012) (rec. dec., aff'd Feb. 17, 2012) (citations omitted).
The administrative law judge also properly found Dr. Galbraith's objective findings inconsistent with his RFC opinion. He cited not only Dr. Galbraith's moderate findings on examination, but also Dr. Galbraith's recommendation that the plaintiff take a functional approach by gradually increasing rotator cuff strengthening and increasing his activity level to help balance muscle groups. See Record at 22-23; see also, e.g., id. at 504. The plaintiff does not elaborate on why, in his view, the Klotz opinion supports the Galbraith opinion, see Statement of Errors at 15; however, to the extent that it does, the administrative law judge explained why he chose to give less weight to certain portions of the Klotz statement, see Record at 23.
Finally, the administrative law judge supportably discounted the Galbraith opinion in part on the basis that Dr. Galbraith had only been treating the plaintiff for 16 months and would not know his limitations as of his alleged onset date of disability. See id. at 23. As counsel for the commissioner notes, see Opposition at 15, the length of a treatment relationship is among the enumerated factors to be considered in assessing treating source opinions, see 20 C.F.R. §§ 404.1527(c)(2)(i), 416.927(c)(2)(i) ("Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion."). Even accepting that Dr. Galbraith reviewed prior diagnostic studies, he had no personal knowledge of the plaintiff's condition prior to the time he began treating him.
The administrative law judge, hence, rejected the Galbraith opinion for the requisite good reason(s).
For the foregoing reasons, I recommend that the decision of the commissioner be
