ROBSHAW v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 20

ORDER re: 11 SS Statement of Errors/Fact Sheet By MAGISTRATE JUDGE JOHN H. RICH III. (rmb)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
SHEMEKIA ROBSHAW,
Plaintiff
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant

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No. 1:14-cv-281-JHR

MEMORANDUM DECISION1
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 remand on the bases that the administrative law judge failed to supply a
supportable rationale for rejecting a functional assessment conducted by physical therapist Ann
Covey and neglected to address a finding by treating physician’s assistant Dale Marquis that she
could not lift more than five pounds. See Plaintiff’s Itemized Statement of Errors (“Statement of

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This action is properly brought under 42 U.S.C. §§ 405(g) and 1383(c)(3). The commissioner has admitted that the
plaintiff has exhausted her administrative remedies. The case is presented as a request for judicial review by this
court pursuant to Local Rule 16.3(a)(2), which requires the plaintiff to file an itemized statement of the specific
errors upon which she seeks reversal of the commissioner’s decision and to complete and file a fact sheet available
at the Clerk’s Office, and the commissioner to file a written opposition to the itemized statement. Oral argument
was held before me on June 10, 2015, pursuant to Local Rule 16.3(a)(2)(D), requiring the parties to set forth at oral
argument their respective positions with citations to relevant statutes, regulations, case authority, and page
references to the administrative record. The parties have consented to have me conduct all proceedings in this
matter, including the entry of judgment. ECF No. 18.

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Errors”) (ECF No. 11) at 3-7.2

I find no reversible error.

Accordingly, I affirm the

commissioner’s 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 December 31, 2008, Finding 1, Record at 17;
that she had severe impairments of degenerative disc disease of the lumbar spine, fibromyalgia,
obesity, vertigo, and sleep apnea, Finding 3, id. 18; that she had the residual functional capacity
(“RFC”) to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a),
except that she could only lift and carry 10 pounds occasionally and lesser amounts frequently,
sit for six hours in an eight-hour workday, and stand and walk for two hours in an eight-hour
workday, could not climb ladders, ropes, or scaffolds, could occasionally climb ramps or stairs,
balance, stoop, kneel, crouch, and crawl, and push or pull with her left lower extremity, could
reach, feel, finger, and handle frequently but not constantly, needed to avoid even moderate
exposure to fumes, dust, odors, gases, and poor ventilation, needed to avoid work at unprotected
heights, and could understand, remember, and carry out simple, repetitive instructions and persist
at that level of complexity for eight hours a day, five days a week consistently (due to pain, not
depression), Finding 5, id. at 20; that, considering her age (29 years old, defined as a younger
At oral argument, the plaintiff’s counsel withdrew a third point of error, that the administrative law judge had
ignored the plaintiff’s right shoulder condition. See Statement of Errors at 7-9. He also raised new points: that the
administrative law judge erred in evaluating the plaintiff’s fibromyalgia and in failing to explain the weight given to
the opinions of two agency nonexamining consultants, Donald Trumbull, M.D., and Richard T. Chamberlin, M.D.
As counsel for the commissioner rejoined, these points, which were not included in the statement of errors, are
waived. See, e.g., Farrin v. Barnhart, No. 05-144-P-H, 2006 WL 549376, at *5 (D. Me. Mar. 6, 2006) (rec. dec.,
aff’d Mar. 28, 2006) (“Counsel for the plaintiff in this case and the Social Security bar generally are hereby placed
on notice that in the future, issues or claims not raised in the itemized statement of errors required by this court’s
Local Rule 16.3(a) will be considered waived and will not be addressed by this court.”) (footnote omitted).
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individual, on her alleged disability onset date, September 1, 2008), education (at least high
school), work experience (transferability of skills immaterial), and RFC, there were jobs existing
in significant numbers in the national economy that she could perform, Findings 7-10, id. at 23;
and that she, therefore, had not been disabled from September 1, 2008, through the date of the
decision, March 8, 2013, Finding 11, id. at 24. 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 her past relevant work.

20 C.F.R. §§ 404.1520(g), 416.920(g); Bowen v.

Yuckert, 482 U.S. 137, 146 n.5 (1987); 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).

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I. Discussion
A. Rejection of KEY Functional Assessment
Physical Therapist Covey completed a report dated May 4, 2011, of a KEY Functional
Assessment (“KEY Report”) in which she indicated, inter alia, that the plaintiff was capable of a
five- to six-hour workday and of sitting for five hours in 60-minute durations, standing for three
to four hours in 30-minute durations, and walking for two to three hours for occasional, moderate
distances. See Record at 643. She stated that the assessment was a valid representation of the
plaintiff’s physical capabilities “based upon consistencies and inconsistencies when interfacing
grip dynamometer graphing, resistance dynamometer graphing, heart rate variations, weights
achieved, and selectivity of pain reports and pain behaviors.” Id. at 637. She noted that the
plaintiff had been “demonstrating full effort.” Id. (boldface omitted).
The administrative law judge accorded the KEY Report “some weight” but rejected its
limitation to a five- to six-hour workday, stating:
[T]he limitation[] for a 5 to 6 hour workday is inconsistent with the sit, stand and
walk statements, which indicate the [plaintiff] could work an 8-hour workday.
Furthermore, the [plaintiff] testified that she could sit for 2 hours at a time, before
she has to get up and move, thus she could move around during routine breaks
and at lunchtime. In addition, it should be noted that this assessment is a Key
Functional Assessment, not a Functional Capacity Assessment, and is based on a
computer program, which takes into account many factors that we do not consider
for social security purposes, such as factoring in the length of time one has been
out of work when determining work capacity. Accordingly, the results of this
assessment are accorded little weight.
Id. at 22.
The plaintiff challenges the validity of each of these rationales, arguing that the
administrative law judge:
1.

Wrongly assumed that Covey’s separate sitting, standing, and walking limitations

were not overlapping and simply added them up to find the plaintiff capable of working an eight4

hour workday, in contradiction of Covey’s further statement that she could work only a five- to
six-hour workday. See Statement of Errors at 4;
2.

Relied on a misunderstanding or misquotation of the plaintiff’s testimony that she

could not sit for long periods of time and got uncomfortable “after an hour or two[,]” at which
point she needed to stretch or move around. Id.; and
3.

Attacked the KEY Report on the indefensible, unsupported, and/or “nonsensical”

bases that it takes into account factors not relevant to Social Security analysis, was prepared with
the aid of a computer program, and is not a functional capacity assessment. Id. at 4-5.
She adds that the administrative law judge, as a layperson, could not properly interpret
the report without the assistance of a medical expert. See id. at 5. She notes that Dr. Chamberlin
did not see the KEY Report. See id. at 5 n.5. She acknowledges that Dr. Trumbull did, but
asserts that the administrative law judge did not rely on his opinion (which assessed no
limitations). See id. at 5-6, 78-79. She argues that, in any event, any reliance on the Trumbull
opinion would have been misplaced in that he incorrectly rejected the KEY Report on the bases
that it relied heavily on the plaintiff’s subjective statements and involved an issue reserved to the
commissioner. See id.
In her brief and through counsel at oral argument, the commissioner disavowed reliance
on the administrative law judge’s third rationale for rejecting the KEY Report, conceding, for
example, that it is not apparent from the record what additional factors the KEY Report employs.
See Defendant’s Opposition to Plaintiff’s Statement of Errors (“Opposition”) (ECF No. 13) at 2
n.1. However, she contended that any error is harmless because the rejection of the workday
limitation is otherwise supported by substantial evidence. I agree.

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Covey, a physical therapist, is not an “acceptable medical source” for purposes of
establishing the existence of a medically determinable impairment.

See 20 C.F.R. §§

404.1513(a), 416.913(a). However, “[i]n addition to evidence from the acceptable medical
sources listed in paragraph (a) . . ., [the commissioner] may also use evidence from other sources
to show the severity of [a claimant’s] impairment(s) and how it affects [the claimant’s] ability to
work.”

Id. §§ 404.1513(d), 416.913(d).

Social Security Ruling 06-03p (“SSR 06-03p”)

provides, in relevant part:
Since there is a requirement to consider all relevant evidence in an individual’s
case record, the case record should reflect the consideration of opinions from
medical sources who are not “acceptable medical sources” and from “non-medical
sources” who have seen the claimant in their professional capacity. Although
there is a distinction between what an adjudicator must consider and what the
adjudicator must explain in the disability determination or decision, the
adjudicator generally should explain the weight given to opinions from these
“other sources,” or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer to follow the
adjudicator’s reasoning, when such opinions may have an effect on the outcome
of the case.
SSR 06-03p, reprinted in West’s Social Security Reporting Service Rulings 1983-1991 (Supp.
2014), at 333.
The administrative law judge’s handling of the KEY Report met this standard. She
explained the weight that she had given the report and why. Moreover, although SSR 06-03p, in
contrast to regulations pertaining to the handling of treating source opinions, does not require
that an adjudicator articulate “good reasons” for the rejection of an “other source’s” opinion,
compare id. with 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2), the administrative law judge did
that as well.
As the commissioner argues, see Opposition at 3, nothing in the KEY Report makes clear
that it must be read as setting forth overlapping sitting, standing, and walking capacities. Covey

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never explained that this was the case: she simply set forth a separate workday limitation and
separate sitting, standing, and walking limitations. See Record at 643. The administrative law
judge, hence, permissibly construed the report as internally inconsistent.3
Nor did the administrative law judge misunderstand the plaintiff’s testimony.

The

plaintiff testified that she became uncomfortable sitting “probably after a[n] hour or two[,]”
following which, to help with her discomfort, “I switch stretching and moving around, and
depending where I am, I can probably get up, and like you know I probably get up and move
around in some place, if not I try to mobile [sic] with moving around.” Id. at 49. As the
commissioner observes, see Opposition at 6, RFC is “the most [a claimant] can still do despite
[her] limitations[,]” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a) (emphasis added).

The

administrative law judge permissibly found, per the plaintiff’s testimony, that she could sit for
two hours at a time, at which point she needed a break to move about. This was consistent with a
capacity to work an eight-hour workday, as defined by the commissioner. See, e.g., Baker v.
Social Sec. Admin. Comm’r, No. 1:10-cv-00167-JAW, 2011 WL 1298694, at *4 (D. Me. Mar.
31, 2011) (rec. dec., aff’d Apr. 19, 2011) (“According to the Commissioner’s regulations, it is
assumed that most jobs permit a morning, lunch, and afternoon break, in roughly two-hour
intervals[.]”).
As the commissioner contends, see Opposition at 6, the administrative law judge did not
exceed the bounds of her competence as a layperson in deciding, as part of her resolution of
At oral argument, the plaintiff’s counsel contended that the administrative law judge had failed to “consider,” or
give “consideration” to, the KEY Report, as required by SSR 06-03p. He asserted that, per his research, the word
“consider” means “to think about something carefully,” and the word “consideration” means “careful thought.” He
contended that nothing in the administrative law judge’s handling of the KEY Report indicates that she did so here.
He argued, for example, that her characterization of the report’s sit/stand/walk findings was not only incorrect but
also impermissible, in that those capacities clearly are subsumed within the overarching initial finding of a capacity
to work only a five- to six-hour workday. This argument, while logical, is unpersuasive. As discussed above, in the
absence of any explanation by Covey, one could equally reasonably perceive an inconsistency between the total
workday and sit/stand/walk figures and accept the latter figures as controlling.
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conflicts in the medical opinion evidence, to credit the KEY Report only in part, see, e.g.,
Murphy v. Astrue, No. 2:11-cv-241-NT, 2012 WL 1067683, at *4 (D. Me. Mar. 29, 2012) (rec.
dec., aff’d Apr. 24, 2012) (“It is the role of the administrative law judge to choose which
evidence upon which to rely and which to reject.”). Thus, she did not require expert assistance in
assessing it. That Dr. Chamberlin did not see the report, and Dr. Trumbull dismissed it on
assertedly impermissible bases, accordingly is irrelevant.4
B. Failure To Address Marquis Opinion
The plaintiff next complains that the administrative law judge failed to address an
opinion contained in an October 20, 2011, note of treating physician’s assistant Marquis that she
was to avoid lifting anything greater than five pounds. See Statement of Errors at 7; Record at
879.

She cites several cases, including four from this court, for the proposition that an

administrative law judge’s failure to mention or discuss a significant opinion contradicting his or
her findings as to a claimant’s limitations is reversible error. See Statement of Errors at 7 (citing
Libby v. Astrue, No. 2:10-cv-265-GZS, 2011 WL 2531152, at *3 (D. Me. June 24, 2011) (rec.
dec., aff’d July 21, 2011); Harthorne v. Astrue, Civil No. 08-120-B-W, 2008 WL 4937806, at *5
(D. Me. Nov. 16, 2008) (rec. dec., aff’d Dec. 8, 2008); Ambrose v. Astrue, No. 07-84-B-W, 2008
WL 648957, at *5 (D. Me. Mar. 5, 2008) (rec. dec., aff’d Mar. 26, 2008); Cogswell v. Barnhart,
No. Civ. 04-171-P-S, 2005 WL 767171, at *3-*4 (D. Me. Mar. 14, 2005) (rec. dec., aff’d Apr. 4,
2005)).

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Moreover, as the commissioner notes, see Opposition at 6, the administrative law judge did not assess RFC based
on raw medical evidence. She relied on the Chamberlin opinion that the plaintiff was capable of light exertional
activities but explained that she further limited her to a sedentary exertional level based on her subjective pain
complaints, with additional limitations on concentration. See Record at 22-23. The plaintiff raised no timely
challenge to the administrative law judge’s reliance on the Chamberlin report as substantial evidence of her RFC.
See Statement of Errors at 3-9. As explained above, while she attempted to do so belatedly at oral argument, the
point is waived.

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The cited cases, however, are materially distinguishable in that they implicate the socalled “treating physician,” or “treating source,” rule. See Libby, 2011 WL 2531152, at *3;
Harthorne, 2008 WL 4937806, at *5; Ambrose, 2008 WL 648957, at *5; Cogswell, 2005 WL
767171, at *3-*4; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (“[The commissioner]
will always give good reasons in [her] notice of determination or decision for the weight [she]
give[s] [a claimant’s] treating source’s opinion.”).
Like physical therapist Covey, Marquis, a physician’s assistant, is not an “acceptable
medical source” for purposes of establishing the existence of a medically determinable
impairment, see 20 C.F.R. §§ 404.1513(a), 416.913(a), but rather an “other source” whose
opinions are evaluated in accordance with SSR 06-03p, see SSR 06-03p at 333.
As noted above, pursuant to SSR 06-03p, adjudicators “generally should explain the
weight given to opinions from these ‘other sources,’ or otherwise ensure that the discussion of
the evidence in the determination or decision allows a claimant or subsequent reviewer to follow
the adjudicator’s reasoning, when such opinions may have an effect on the outcome of the case.”
Id.
As the commissioner observes, see Opposition at 7, this court has explained that a
decision complies with the requirements of SSR 06-03p when it makes clear that, had the
administrative law judge expressly discussed the opinion of an “other source,” he or she would
have rejected it, see Gendron v. Colvin, No. 2:13-cv-00191-JAW, 2014 WL 1513350, at *5 (D.
Me. Apr. 16, 2014).
That is the case here. As the administrative law judge noted, see Record at 21, the
plaintiff testified that she could not lift more than 20 pounds, see id. at 48. She also testified that
she could lift items such as a gallon of milk, garbage, a laundry basket, and a tote. See id. at 49.

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In addition, the administrative law judge observed that the KEY Report concluded that the
plaintiff could lift 10.4 pounds above shoulder level and that consultative examinations revealed
that she was able to lift up to 10 pounds occasionally. See id. at 22.
The administrative law judge explained that she accorded evidentiary weight to the
agency nonexamining consultants’ opinions (actually, the Chamberlin opinion) that the plaintiff
was capable of performing light exertional activities, but that she limited the plaintiff to a
sedentary exertional level taking into account her subjective pain complaints. See id. at 22-23.5
As the commissioner argues, see Opposition at 7-8, the administrative law judge’s
consideration of the plaintiff’s own statements at hearing make clear that she would have
rejected the greater limitation set forth by Marquis.
II. Conclusion
For the foregoing reasons, the commissioner’s decision is AFFIRMED.

Dated this 28th day of June, 2015.

/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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Applicable regulations provide that sedentary work involves lifting no more than 10 pounds at a time, see 20
C.F.R. §§ 404.1567(a), 416.967(a), while light work involves lifting no more than 20 pounds at a time with frequent
lifting of 10 pounds at a time, see id. §§ 404.1567(b), 416.967(b).

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