COOK v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 19

REPORT AND RECOMMENDED DECISION re 14 Social Security Statement of Errors/Fact Sheet. Objections to R&R due by 9/11/2018. By MAGISTRATE JUDGE JOHN C. NIVISON. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
KEITH C.,
Plaintiff
v.
SOCIAL SECURITY ADMINISTRATION
COMMISSIONER,
Defendant

)
)
)
)
)
)
)
)
)
)

2:17-cv-00436-NT

REPORT AND RECOMMENDED DECISION
On Plaintiff’s application for disability insurance benefits under Title II of the Social
Security Act, and for Medicare benefits under the Medicare Qualified Governmental
Employee program, Defendant, the Social Security Administration Commissioner, found
that Plaintiff has severe impairments, but retained the functional capacity to perform
substantial gainful activity through the dates for which he was covered under the programs.
Defendant, therefore, denied Plaintiff’s request for benefits. Plaintiff filed this action to
obtain judicial review of Defendant’s final administrative decision pursuant to 42 U.S.C. §
405(g).
Following a review of the record, and after consideration of the parties’ written
arguments, I recommend the Court affirm the administrative decision.
The Administrative Findings
This matter is before the court following multiple administrative and court-ordered
remands for refinement of the residual functional capacity analysis. The Commissioner’s
final decision is the January 27, 2016, decision of the Administrative Law Judge. (ALJ

Decision, ECF No. 10-11.)1 The ALJ’s decision tracks the familiar five-step sequential
evaluation process for analyzing social security disability claims, 20 C.F.R. §§ 404.1520,
416.920.
The ALJ found that Plaintiff has severe, but non-listing-level impairments
consisting of degenerative disc disease of the lumbar spine, L4 – 5 disc herniation and
annular tear, depression and obesity. (ALJ Decision ¶ 4 – 5.) The ALJ further found
Plaintiff has the residual functional capacity (RFC) to perform light-exertion work, and to
stand, walk and sit for 6 hours each in an 8 hour day, provided he is able to change positions
every 2 hours for 1-2 minutes before resuming the original position to alleviate postural
discomfort, and provided he never is required to negotiate certain hazards, obstacles and
environments, or assume certain postures.

As to Plaintiff’s mental RFC, the ALJ

determined that Plaintiff can understand, remember and carry out simple, repetitive
instructions and can persist at that level of complexity for 8 hours a day, 5 days a week
consistently; can interact with the general public, co-workers and supervisors; and can
adapt to routine changes in the work setting. 2 (Id. ¶ 6.)
Standard of Review
A court 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

1

Because the Appeals Council found no reason to review that decision (ECF No. 10-11, R. 947), the final
decision for review is the ALJ’s January 27, 2016, decision.
2

The ALJ determined that Plaintiff engaged in substantial gainful activity during two quarters in 2015,
which finding Plaintiff contests on the ground that the work accommodated his disability. However, the
finding does not require further proceedings because the claims before the Court involve earlier periods and
Defendant does not rely on the finding to support the ALJ’s step 5 determination.

2

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).
Discussion
Plaintiff argues the ALJ erred because she (1) failed to account adequately for
limitations in concentration, persistence, and pace arising from the combined effect of
depression and chronic pain; (2) rejected a treating source opinion without good reason;
(3) assessed the degree of impairment caused by obesity without any expert guidance; (4)
found Plaintiff engaged in substantial gainful activity in an accommodated job; (5) failed
to comply with the most recent order of remand; and (6) failed to weigh or consider a Maine
Public Employees Retirement System disability determination and the nurse practitioner
opinion on which it was based.
1. Concentration, persistence, and pace
According to Plaintiff, the ALJ failed to consider the extent to which Plaintiff’s
chronic pain exacerbates the concentration, persistence, and pace impairment caused by
Plaintiff’s depression. (Statement of Errors at 7 – 10.) Plaintiff argues the ALJ’s finding
of moderate impairment required the ALJ to find that Plaintiff’s mental RFC precludes
3

working at “pace.” (Id. at 9 – 10.)
The ALJ based her findings regarding Plaintiff’s mental limitations principally on
the hearing testimony of Ira Hymoff, Ph.D.3 (ALJ Decision, R. 965, 973; Def.’s Response
at 3.) The ALJ also observed that Plaintiff’s “treating physicians have not opined that his
ability to maintain attention and concentration [on] work tasks … is significantly
compromised by pain and/or prescribed medication.” (R. 965, citing Exs. 15F, 19F, ECF
No. 10-8.)

Furthermore, the ALJ noted that imaging-related findings have been

characterized as mild, that Plaintiff has been able to engage in a variety of activities of
daily living such as camping, fishing, yardwork, motorcycling, and biking, and that the
longitudinal approach to treatment was conservative. (R. 968, 970.) Defendant has also
observed that Plaintiff’s treating provider, Michael Totta, M.D., characterized the degree
of Plaintiff’s limitation from pain as a “motivational” issue.4 (Response at 4 – 5, citing Ex.
14F, R. 720, Ex. 18F, R. 744 – 45.)
Given the record before the Court, the ALJ’s decision not to impose a restriction
that precluded working at simple tasks at “pace” is supportable. The ALJ considered all of
the relevant evidence, including both the medical evidence and the evidence of Plaintiff’s
activity level, and determined that a limitation for pace was not warranted. “Issues of

Dr. Hymoff stated that Plaintiff’s depressive feelings were most likely “connected to the restrictions he
was feeling from his physical discomfort” (Hr’g Tr., ECF No. 10-11, R. 1029); resulted in “mild to
moderate” limitation in concentration, persistence, and pace (R. 1031); were difficult to sort out in terms of
the confluence of depression and physical pain (R. 1032); but “should not be a problem” if the mental
demands were limited to “simple repetitive tasks.” (R. 1033.)
3

According to Dr. Totta, “there is no objective way to define this” and Plaintiff’s “medications will not
significantly alter his mental status.” (R. 720.)
4

4

credibility and the drawing of permissible inference from evidentiary facts are the prime
responsibility of the [Commissioner].” Rodriguez v. Celebrezze, 349 F.2d 494, 496 (1st
Cir. 1965). See also Shaw v. Sec’y of HHS, No. 93–2173, 1994 WL 251000, * 4, 1994
U.S. App. LEXIS 14287, *14–15 (1st Cir. 1994) (unpublished) (“Where the facts permit
diverse inferences, we will affirm the [Commissioner] even if we might have reached a
different result.”).
2. Treating source opinion
Plaintiff’s treating source, Patrick Pierre, M.D., opined in August 2011 that Plaintiff
cannot stand or walk for as many as two hours in an eight-hour workday, has difficulty
standing for longer than 30 minutes, and must periodically alternate between sitting and
standing due to pain and discomfort. (Statement of Errors at 11.) Plaintiff contends that
because the date last insured was in 2011, Dr. Pierre’s 2011 opinion should control,5 and
that the expert testimony obtained at Plaintiff’s July 2015 hearing from non-examining
medical expert, Leonard Rubin, M.D., did not constitute a “good reason” for the ALJ to
reject Dr. Pierre’s opinion. (Id. at 11 – 12.) Defendant argues that, in addition to relying
on the hearing testimony provided by Dr. Rubin, the ALJ stated good reasons for not
accepting Dr. Pierre’s opinion, including that the record did not support the degree of
limitation found by Dr. Pierre, the lack of significant findings or treatment in the records
associated with Dr. Pierre’s care, and the lack of a contemporaneous examination.6
In 2011, Dr. Pierre opined in the same medical source statement that Plaintiff’s “attention and
concentration is not compromised.” (Ex. 19F, R. 748.)
5

In the office note associated with the medical source statement, Dr. Pierre stated “[t]here was no physical
exam today.” (Ex. 25F, R. 885, ECF No. 10-9.) In an office note for a physical examination performed
6

5

(Response at 6 – 7.)
At the hearing, Dr. Rubin testified that he would endorse the physical RFC findings
of Donald Trumbull, M.D. (Ex. 5F, ECF No. 10-7), made in 2007, understanding that the
limitation assessed by Dr. Trumbull is that Plaintiff can sit for as long as six hours or stand
for as long as six hours in a workday, provided that every two hours he has the ability to
move around for 1 to 2 minutes to alleviate pain.7 (R. 1023.) Dr. Rubin also discussed the
2011 source statement of Dr. Pierre, who opined that Plaintiff could not stand for 2 hours
in a workday and, if seated, would need to alternate his position periodically. (R. 1025,
discussing Ex. 19F.) While the parties dispute the proper interpretation of Dr. Rubin’s
testimony, the ALJ supportably construed the opinion as supportive of Dr. Trumbull’s
opinion. (R. 973 – 74, 976 – 77.) The ALJ also supportably determined that Dr. Pierre’s
opinion was inconsistent with the overall medical record, including the contemporaneous
records.
In her discussion of whether the record supported the need for a “sit/stand option,”
the ALJ placed great weight on the opinion evidence offered by Dr. Rubin and, by
extension, Dr. Trumbull. (R. 973 – 974.) The ALJ gave “only some weight” (R. 975) to

two months later, on October 18, 2011, Dr. Pierre described Plaintiff as reporting “no particular complaints
or concerns” and “some musculoskeletal pain.” (Ex. 25F, R. 883.)
In his physical RFC finding, Dr. Trumbull wrote, “Needs to change position q 2/hour, 1-2 min to alleviate
pain, stiffness.” (Ex. 5F, R. 485.) Plaintiff argues the “q” means “quarter,” such that Dr. Trumbull should
be interpreted as finding that Plaintiff needs to change position 4 times. (Statement of Errors at 5.)
Plaintiff’s argument is not convincing. Use of “q” is typically a reference to the Latin “quaque,” which
prescribes a quantity or rate, as in each day/daily. Thus, Dr. Trumbull’s shorthand can reasonably be
understood to describe the need to change position at the rate of “2/hour” or twice per hour. The ALJ,
therefore, did not mischaracterize Dr. Trumbull’s opinion as Plaintiff argues.
7

6

the opinion of Dr. Totta, noting the equivocal nature of his opinions, and “little weight” (R.
976) to the opinion of Dr. Pierre, observing that Dr. Pierre did not perform a
contemporaneous examination, appeared to rely on subjective reports of symptoms, and
assessed a severe restriction on Plaintiff’s ability to stand that did not appear have support
in the medical record.
In sum, a review of the record reveals the ALJ considered all of the relevant medical
evidence, and articulated sound reasons not to adopt the treating source opinion of Dr.
Pierre. Accordingly, Plaintiff’s argument that the ALJ erred when she did not adopt Dr.
Pierre’s opinion is unavailing.
3. Obesity
Because the ALJ found that obesity is a severe impairment, but the Disability
Determination Services consulting physicians did not include it as a severe impairment,
Plaintiff argues the ALJ could not make a finding inconsistent with Dr. Pierre’s opinion
about Plaintiff’s ability to stand, walk and sit, without judging a matter entrusted to experts.
(Statement of Errors at 13.) Defendant contends the ALJ did not err because the treating
sources did not base their RFC source statements on the limiting impact of obesity.
(Response at 9.)
Defendant’s administrative rulings include a commitment to evaluate the limiting
impact that obesity has on social security claimants. See SSR 02–1p, Titles II and XVI:
Evaluation of Obesity (Sept. 12, 2002). The Ruling recognizes that obesity is “a risk factor
that increases an individual’s chances of developing impairments in most body systems”
and “commonly leads to, and often complicates, chronic diseases of the cardiovascular,
7

respiratory, and musculoskeletal body systems.” 2002 WL 34686281, at *3. The Ruling
provides that obesity will be considered in connection with the sequential evaluation
process at step 2 and step 3, and also as part of the assessment of a claimant’s residual
functional capacity and readiness to perform work activity in connection with step 4 and
step 5. Id. The standards for claim evaluation require the adjudicator to make an
assessment “of the effect obesity has upon the individual’s ability to perform routine
movement and necessary physical activity within the work environment.” Id. at *6.
Consideration of obesity is not subject to heightened demands that require protracted
discussion. “As with any other impairment,” the Commissioner promises that adjudicators
“will explain how we reached our conclusions on whether obesity caused any physical or
mental limitations.” Id. at *7.
The ALJ recognized that obesity was a relevant factor, found it to be a severe
impairment at step 2, and appropriately considered its import in the assessment of
Plaintiff’s RFC. In her RFC discussion, the ALJ expressed the reasonable view that
Plaintiff’s obesity is material to his musculoskeletal issues. She concluded, however, that
the record related to obesity did not require a different analysis of Plaintiff’s functional
limitations. The ALJ explained there was “no indication that obesity exacerbates the
claimant’s conditions beyond the extent discussed” or was “otherwise disabling.” (R. 971.)
The ALJ thus acknowledged and assessed the potential impact of Plaintiff’s obesity on his
functional ability, and provided a reasoned explanation for her conclusion that the obesity
was not disabling.

8

4. Finding Plaintiff performed substantial gainful activity in 2015
Plaintiff performed part time work in several years during the period of alleged
disability. In 2015, work Plaintiff performed for the Masonic Lodge twice resulted in
quarterly earnings that would qualify as substantial gainful activity under Defendant’s
regulations. The ALJ determined that Plaintiff in fact performed substantial gainful activity
in two quarters of 2015. (R. 962 – 63.) The work, however, was accommodated.
Specifically, Plaintiff testified that he performed janitorial work at his own schedule, never
for more than four or five hours in a day, and he was able to lie down when necessary. (R.
1042.)
Regardless of the merit of Plaintiff’s argument challenging the ALJ’s finding, the
ALJ’s finding regarding Plaintiff’s substantial work activity in 2015 does not require a
different result or further proceedings. The ALJ made her determination following an
analysis of each step of the sequential process, and the record lacks any evidence that the
Step 1 finding informed the ALJ’s ultimate determination regarding Plaintiff’s alleged
disability. Accordingly, remand is not warranted. Montgomery v. Berryhill, No. 2:16-cv126, 2017 WL 2191587, at *5 (D. Vt. May 18, 2017).
5. Compliance with remand order
In its January 28, 2015, Order, in the matter of Cook v. Colvin, No. 2:14-cv-00282GZS, the Court directed Defendant “to obtain medical expert review of the record with an
opinion as to Plaintiff’s physical functional limitations prior to December 31, 2011, and in
particular, whether he would have required a sit/stand option and at what intervals.”
Plaintiff contends Defendant failed to comply with the Court’s order because Dr. Rubin
9

did not actually provide an opinion regarding Plaintiff’s limitations. (Statement of Errors
at 16.) Defendant argues the ALJ satisfied the requirements of the order, given that Dr.
Rubin adopted the opinion of Dr. Trumbull. (Response at 13 – 14, citing Hr’g Tr., R. 1021
– 22, referencing Ex. 5F, R. 485.) The record establishes that Dr. Rubin testified during
the hearing and endorsed and adopted Dr. Trumbull’s findings. As explained above, the
ALJ’s RFC finding, based on the opinions of Drs. Rubin and Trumbull, is supported by
substantial evidence on the record. Plaintiff’s argument that the ALJ failed to obtain a
further expert review, therefore, is not persuasive.
6. Consideration of Maine Public Employees Retirement System Decision
Plaintiff argues Defendant did not comply with Social Security Ruling 06-3p
because Defendant failed to consider appropriately the disability determination of the
Maine Public Employees Retirement System and related records. (Statement of Errors at
16 – 17.) According to Plaintiff, the ALJ did not even consider the record associated with
the determination. (Id., citing R. 428, ECF No. 10-6, and R. 1061, ECF No. 10-11.)
Defendant argues the ALJ appropriately considered the determination, but gave it
no significant weight. (Response at 10.) Defendant further argues there is no requirement
that Defendant develop the record further to understand better the reasons for the state
determination because the ALJ had a sufficient record with which to determine Plaintiff’s
disability claim. (Id. at 11.)
Social Security Ruling 06-3p instructed8 the ALJ to consider opinions from non-

8

Defendant rescinded the Ruling for claims submitted on or after March 27, 2017, explaining that the
Ruling is “inconsistent or unnecessarily duplicative with our recent final rules, Revisions to Rules

10

acceptable medical sources and explain the weight given to them “or otherwise ensure that
the discussion of the evidence ... 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.” Jessica B. v. Berryhill, No. 1:17-cv-294-NT, 2018 WL 2552162, at *6 (D. Me. June
3, 2018) (quoting SSR 06-3p, reprinted in West’s Social Security Reporting Service
Rulings 1983-1992 (Supp. 2016), at 333). Plaintiff was awarded disability retirement
benefits by the Maine Public Employees Retirement System (MPERS) in 2006, based on
a finding that his degenerative disc disease and related symptoms would not permit the
continued performance of his work as a corrections officer, only less intensive, “light duty
work.” (R. 1063 – 65, ECF No. 10-11.) Thereafter, in 2010, MPERS continued his benefits
based on its finding that he was “unable to engage in any substantial gainful activity.” (R.
1061.)
The ALJ observed that the MPERS determination did not describe the applicable
standard or the evidence on which it was based, and that the finding of disability was not
persuasive because it was not consistent with the objective medical evidence and Plaintiff’s
activities of daily living. (R. 978.) The ALJ thus did not fail to consider the evidence, but
rather explained the reasons she did not give the evidence weight. The record does not
compel a contrary conclusion. While the ALJ was required to consider the determination,
the ALJ was not required to defer to the opinion of another administrative decision maker.
Cf. Rodriguez, 647 F.2d at 222 (“The Secretary may (and, under his regulations, must) take

Regarding the Evaluation of Medical Evidence, published in the Federal Register on January 18, 2017 (82
FR 5844).” 82 Fed. Reg. 15263-01, 15263 (Mar. 27, 2017).

11

medical evidence. But the resolution of conflicts in the evidence and the determination of
the ultimate question of disability is for him, not for the doctors or for the courts.”). The
ALJ’s decision is supported by substantial evidence on the record.9
CONCLUSION
Based on the foregoing analysis, I recommend the Court affirm the administrative
decision.
NOTICE
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, and request for oral
argument before the district judge, if any is sought, within fourteen (14) days
of being served with a copy thereof. A responsive memorandum and any
request for oral argument before the district judge shall be filed within
fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court’s order.

/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 28th day of August, 2018.

9

Plaintiff also contends the ALJ failed to consider the 2011 determination of Kristen Schroeder-Cyr, NP,
who, when Plaintiff applied for disability plates for his vehicle, wrote in a provider statement in support of
the application that Plaintiff is “severely limited in [his] ability to walk.” (Ex. 16E, R. 431, ECF No. 106.) The ALJ considered the opinion, but did not give it weight because it was inconsistent with the ALJ’s
assessment of the medical record, and because it did not address the duration for which Plaintiff could walk
in an 8-hour workday. (R. 979.) The ALJ thus considered the evidence and provided a reasonable basis
for her decision not to adopt the finding.

12