PLUMMER v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 31

REPORT AND RECOMMENDED DECISION re 22 Social Security Statement of Errors/Fact Sheet. Objections to R&R due by 12/4/2020. By MAGISTRATE JUDGE JOHN C. NIVISON. (MFS)

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DAVID P.,
Plaintiff
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant

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2:20-cv-00020-LEW

REPORT AND RECOMMENDED DECISION
On Plaintiff’s application for disability insurance benefits under Title II of the Social
Security Act, Defendant, the Social Security Administration Commissioner, found that
Plaintiff has severe impairments but retains the functional capacity to perform substantial
gainful activity. Defendant, therefore, denied Plaintiff’s request for disability 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’ arguments,
I recommend the Court affirm the administrative decision.
THE ADMINISTRATIVE FINDINGS
The Commissioner’s final decision is the November 26, 2018, decision of the
Administrative Law Judge. (ALJ Decision, ECF No. 14-2).1 The ALJ’s decision tracks
the familiar five-step sequential evaluation process for analyzing social security disability

Because the Appeals Council found no reason to review that decision (R. 1), Defendant’s final decision
is the ALJ’s decision.
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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 with healed compression fractures in the thoracic
spine. (R. 17-18.) The ALJ further determined that Plaintiff has the residual functional
capacity (RFC) to perform light work, except that he can occasionally reach, pull and push
with his bilateral upper extremities and he can occasionally stoop, kneel, crawl, and climb
ladders, ropes and scaffolds. (R. 18.)
The ALJ concluded that Plaintiff could not return to past relevant work as actually
or generally performed (R. 21), but he could perform other gainful employment in jobs
existing in substantial numbers in the national economy. (R. 21-22.)
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
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).

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DISCUSSION
Plaintiff argues that the ALJ’s decision is not supported by substantial evidence,
that the ALJ failed to evaluate properly the intensity, persistence, and limiting effects of
Plaintiff’s symptoms, and that the ALJ did not accord appropriate weight to the treating
source statements.
A. The RFC Assessment/Evaluation of Treating Source Statements
Plaintiff maintains that while working in the sale and service of large cranes on
March 9, 2011, he suffered an injury to his head and neck, which injury ultimately resulted
in his inability to work beginning in May 2013.
In his assessment of Plaintiff’s claim and in the development of the RFC, the ALJ
discussed in detail the medical record, including the expert medical opinions. The ALJ
gave great weight to the opinion of Fred Fridman, D.O., who examined Plaintiff on June
2, 2017, at the request of the state agency. Dr. Fridman concluded Plaintiff could lift 20
pounds occasionally and 10 pounds frequently; had no limitations on sitting, standing,
walking, stooping, and climbing ramps or stairs; could occasionally kneel, crouch, crawl,
and climb ladders, ropes, and scaffolds; and could occasionally reach, push, and pull with
both arms. (R. 397.) Dr. Fridman’s opinion supports the ALJ’s RFC determination. The
issue is whether Dr. Fridman’s opinion is consistent with and supported by the medical
record.
First, Dr. Fridman’s opinion is supported by the objective findings during his
examination. While Plaintiff had painful range of motion in the cervical spine (R. 397), he
did not have any noticeable abnormalities in his neck, extremities, and muscle tone, with
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no evidence of tremor. (R. 394.) Plaintiff also demonstrated that he could lift, carry and
handle light objects; squat and rise from a standing position with ease; stand up from a
sitting position with ease; and walk on his heels and toes with ease. (R. 396.)
In addition, as the ALJ accurately summarized, other medical records, including the
primary care records in January 2017, the evaluation of Gwen Simons, PT, the physical
findings of Alexander Mesrobian, M.D., who examined Plaintiff in June 2014 in
connection with Plaintiff’s workers’ compensation claim, and the opinions of the state
agency experts are consistent with and support Dr. Fridman’s findings and the ALJ’s RFC
assessment. For instance, Ms. Simons found Plaintiff’s cervical range of motion to be
“within normal limits” and his upper extremity range of motion to be normal. (R. 750.)
She also determined Plaintiff to have normal strength in both arms and that he had “no
complaints of numbness, tingling radiating or radicular pain” in his arms. (R. 751.)
Similarly, while Dr. Mesrobian found that Plaintiff had “very limited “ forward flexion in
his neck (R. 774) was unable to perform sedentary work, an opinion to which the ALJ
supportably gave little weight, he found that Plaintiff “was able to perform rotary flexion
of his neck with mild limitation” and that the ranges of motion of Plaintiff’s shoulders
“displayed full abduction flexion, internal and external rotation” and that “moving his
shoulders did not appear to cause undue distress.” (R. 774.) Furthermore, the agency
experts found that Plaintiff could perform medium work. (R. 69-70, 84-85.)
Despite the medical support for the ALJ’s RFC assessment, Plaintiff contends the
ALJ’s decision is not supportable because the ALJ did not afford appropriate weight to the
opinions of Plaintiff’s treating providers, Carl DeMars, M.D., and James Kneebone, D.O.
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The ALJ gave little weight to the opinions of the treating providers. (R. 20.)
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.’” Gilson v. Colvin, No. 1:12-cv-376-GZS, 2013 WL
5674359, at *2 (D.Me. Oct. 17, 2013) (quoting 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2)).2 An ALJ is not required to consider a treating physician’s opinion
controlling, however. See Bowker v. Comm’r, Soc. Sec. Admin., No. 2:13-cv-122-DBH,
2014 WL 220733, *3 (D.Me. Jan. 21, 2014) (fact that some of treating physician’s opinions
were inconsistent with other medical evidence in the record “deprives them of controlling
weight”).
Here, because the opinions of Drs. DeMars and Kneebone are substantially similar,
the ALJ understandably discussed their opinions simultaneously (e.g., “the evidence, for
the reasons discussed above, does not support their very similar assessments,” R. 20.) A
review of the record reveals that the ALJ supportably found that their opinions appear to
be based, at least in part, on Plaintiff’s statements, which were inconsistent with
contemporary records and objective medical evidence. (R. 18, 20.)
As the ALJ noted, for instance, although Plaintiff reported to Dr. DeMars in March
2018, six months prior to Dr. DeMars’ completion of the form medical source statement,

For claims filed on or after March 27, 2017, such as Plaintiff’s, the regulations that govern the ALJ’s
evaluation of opinion evidence provide that an ALJ “will not defer or give any specific evidentiary weight,
including controlling weight, to any medical opinion(s)[.]” 20 C.F.R § 404.1520c(a). Plaintiff applied for
benefits on January 31, 2017. (R. 15.)
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that he had “terrible” neck pain, the examination revealed that his neck was “supple” and
he had “no focal deficits.” (Exh. 19F.) The ALJ also noted that John Hall, M.D., who
examined Plaintiff in May 2018 upon referral from Dr. DeMars, found Plaintiff to have
functional range of motion and “5/5 motor strength throughout all four extremities.” (R.
19, 536.) While Dr. Hall also found that the cervical spine range of motion assessment
revealed that extension and flexion caused discomfort in the “posterior cervical paraspinal
muscles” (R. 536), the finding is not inconsistent with the RFC. The ALJ further noted
that when Plaintiff was examined in a hospital emergency room following an automobile
accident in May 2018, the exam revealed that Plaintiff had “normal range of motion” in his
neck. (R. 19, 469.)
Although the ALJ arguably misinterpreted portions of Dr. Kneebone’s records and
could have commented more extensively on the opinions of the treating sources, by
contrasting the opinions with portions of the medical records and the other medical
opinions, the ALJ provided good reasons for affording little weight to the treating source
statements. Vining v. Astrue, 720 F. Supp. 2d 126, 134 (D. Me. 2010) (ALJ not required to
adopt treating source assessment “ as long as [the ALJ] supplied ‘good reasons’ for doing
so (quoting 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2))).
In sum, therefore, the ALJ did not err when he gave little weight to the opinions of
Plaintiff’s treatment providers and the ALJ’s RFC assessment is otherwise supported by
substantial evidence.
B. Plaintiff’s Subjective Statements
Plaintiff argues that the ALJ did not properly evaluate Plaintiff’s subjective
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complaints, including his complaints of pain. The ALJ concluded that Plaintiff’s statements
regarding the intensity, persistence and effect of his symptoms were not consisted with the
medical evidence and other evidence.
In support of his conclusion, in addition to the medical evidence referenced above,
the ALJ noted an October 2013 MRI of Plaintiff’s cervical spine that reflected “‘mild’ and
‘healed’ thoracic fracture deformities, ‘minimal’ degenerative changes that were stable
compared to a study done in 2012, and no evidence of neural compromiser” (R. 18, citing
Exh. 15F); a note of Dr. Mesrobian in June 2014 that described Plaintiff as “healthy
appearing” (R. 18, citing Exh. 21F); Plaintiff’s limited medicine regimen for pain (R. 19,
20); the relief Plaintiff received from massage therapy (R. 20, citing Exh. 17F); and the
fact that Plaintiff engaged in bird hunting. (R. 20.) 3
Plaintiff cites to other evidence in the record that the ALJ failed to discuss, which
evidence is consistent with his complaints of pain and his alleged limitations. The fact that
the record includes evidence that might conflict with the evidence upon which the ALJ
relied and could support a different conclusion, however, does require a different result.
“The fact that there may be some evidence in the record that would support [Plaintiff’s]
view of [his] pain as disabling is not conclusive. It is the role of the administrative law
judge to choose which evidence upon which to rely and which to reject. When [] the

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Plaintiff contends the ALJ misrepresented his testimony regarding the bird hunting activity as he testified
that his bird hunting would have consisted of him riding on a dirt road in a truck. (Pl. SOE at 10-11.) While
the ALJ cited Plaintiff’s bird hunting “as an activity suggestive of greater functionality than he has alleged,”
(R. 20), the ALJ did not appear to focus significantly on the activity in his assessment of Plaintiff’s
statements. Instead, the ALJ appears to have relied more on the medical evidence and Plaintiff’s report of
symptoms to medical providers and evaluators.

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administrative law judge has set forth [the ALJ’s] reasons for doing so, nothing more is
required.” Murphy v. Astrue, No. 2:11-cv-241-NT, 2012 WL 1067683, at *4 (D.Me. Mar.
29, 2012), Rep’t. and Rec. Dec. affirmed, 2012 WL 1416652 (Apr. 24, 2012). The ALJ
has adequately and supportably discussed his assessment of Plaintiff’s statements.
In this case, Plaintiff in essence asks the Court to weigh the conflicting evidence,
“[b]ut the resolution of conflicts in the evidence and the determination of the ultimate
question of disability is for [the ALJ], not for the doctors or for the courts.” Rodriguez v.
Sec’y of HHS, 647 F.2d 218, 222 (1st Cir. 1981). Here, the ALJ assessed and weighed the
evidence, including the treating source statements and Plaintiff’s statements, and the ALJ’s
decision is supported by substantial evidence on the record.
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, within fourteen
(14) days of being served with a copy thereof. A responsive memorandum
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 20th day of November, 2020.
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