UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Stacy Lee Melican, Claimant Case No. 18-cv-682-SM v. Opinion No. 2019 DNH 149
Andrew Saul, Commissioner, Social Security Administration, Defendant
O R D E R
Claimant, Stacy Lee Melican filed this action, challenging
a decision by the Commissioner of the Social Security
Administration denying her application for Disability Insurance
Benefits under Title II of the Social Security Act (the “Act”),
42 U.S.C. § 423. The Magistrate Judge issued a Report and
Recommendation (“R&R”) on June 12, 2019 (document no. 12),
recommending that the Commissioner’s decision be vacated, and
the case remanded for further proceedings. The Commissioner
then filed a timely Objection to the Report and Recommendation
(document no. 13).
Having carefully considered the Magistrate Judge’s Report
and Recommendation, and the Commissioner’s Objection, the court
declines to adopt the recommendation, as explained below, and
affirms the Commissioner’s decision. Standard of Review
On referral of a dispositive motion, a magistrate judge
issues proposed findings in a report and recommendation. 28
U.S.C. § 636(b)(1)(B). The parties then have an opportunity to
object to the report and recommendation, and to respond to an
objection. Fed. R. Civ. P. 72(b)(2). The district judge then
conducts a de novo review of any part of the report and
recommendation that has been objected to, and may “accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); accord Fed. R. Civ. P. 72(b)(3).
Background
Melican challenged the ALJ’s decision denying benefits on
three grounds: (1) the ALJ erroneously included a light work
capacity in her RFC, even though state agency consultant James
Trice, M.D., opined that Melican possessed only a sedentary work
capacity; (2) the ALJ failed to adequately address her upper
extremity limitations as assessed by John Kane, APRN; and (3)
the ALJ improperly discounted a New Hampshire Department of
Health and Human Service determination concerning a claimed back
impairment. The magistrate judge determined that remand was
necessary because the ALJ did not “address Dr. Trice’s
2 conclusion that Melican was limited to sedentary work, despite
unhesitatingly accepting the other aspects of Dr. Trice’s
opinion.” Document No. 12, at 6.
Discussion
In his Objection, the Commissioner argues that the
Magistrate’s recommendation should not be adopted because it
rests upon both factual and legal error. First, says the
Commissioner, Dr. Trice did not opine that claimant was
restricted to “sedentary” work. Rather, that “sedentary”
designation was made by the non-physician disability
adjudicator/examiner, Sharon Welch, who evaluated the vocational
aspects of Melican’s case. But, the Commissioner continues,
even if Dr. Trice had so opined, such labels are not a critical
part of the RFC assessment, which eschews broad exertional
categories in favor of a function-by-function assessment.
Finally, the Commissioner contends, even if the ALJ had adopted
the disability examiner’s “sedentary” label, that still would
have no bearing on the substance of the decision.
The Commissioner’s arguments are persuasive. First, the
Commissioner is correct in noting that the record discloses that
the “sedentary” designation was made by Welch as part of her
vocational analysis, and not by Dr. Trice. In the Disability
3 Determination Explanation, Dr. Trice proposed specific
functional limitations (limitations that were eventually adopted
by the ALJ). See Administrative Record (“Admin. Rec.”) at 64-
66. The disability examiner, Welch, then evaluated those
functional limitations from a vocational perspective, and
assigned the “sedentary” designation. 1 Admin. Rec. at 68-70.
Welch is not a “medical source,” and therefore her “sedentary”
designation was not a medical opinion. See, e.g., Stratton v.
Astrue, 987 F.Supp.2d 135, 150–51 (D.N.H. 2012). See also
Chambers v. Colvin, No. 16-CV-087-LM, 2016 WL 6238514, at *6
(D.N.H. Oct. 25, 2016; Levesque v. Colvin, No. 13-CV-298-JL,
2014 WL 4531743, at *1 (D.N.H. Sept. 11, 2014).
Even if Welch’s sedentary designation could be considered a
medical opinion, classification of an RFC as “sedentary” is an
issue reserved to the Commissioner. See 20 C.F.R. § 404.1527.
See also 20 C.F.R. § 404.1546 (“If your case is at the
administrative law judge hearing level or at the Appeals Council
review level, the administrative law judge or the administrative
appeals judge at the Appeals Council (when the Appeals Council
makes a decision) is responsible for assessing your residual
functional capacity.”).
1 Notably, Welch determined that Melican was “not disabled” with a sedentary work capability. Admin. Rec. at 69.
4 The ALJ found that claimant retained the RFC to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) allowing for lifting 20 pounds occasionally and 10 pounds frequently; standing and/or walking 2 hours in an 8 hour work day; sitting 6 hours in an 8 hour workday; unlimited use of her hands and feet to operate controls and push and pull; she should never climb ladders, scaffolding, or ropes; she can frequently balance; and she can occasionally climb ramps/stairs, stoop, kneel, crouch, and crawl; she has no limitation on reaching, handling or feeling; but she is limited to frequent fingering. She has the ability to understand, remember, and carry out limited instructions [limited from detailed instructions]; her persistence and pace may be affected on a temporary basis but not to an unacceptable level; she would not be off task more than 10% of the day; and she could sustain concentration, persistence, and pace during the typical 2 hour periods of an 8-hour workday and a 40 hour work-week.
Admin. Rec. at 24. As mentioned, the ALJ adopted the
lifting/carrying, standing, walking, pushing and pulling
limitations as found by Dr. Trice. And, the ALJ determined that
those limitations fell between sedentary and light exertional
level work. Admin. Rec. at 33 (“the claimant’s ability to
perform all or substantially all of the requirements of [light]
work has been impeded by additional limitations”). In light of
those restrictions, and based on the testimony of the vocational
expert, the ALJ concluded that claimant was not capable of
performing her past relevant work. Admin. Rec. at 32.
5 “Once [an] applicant has met his or her burden at Step 4 to
show that he or she is unable to do past work due to the
significant limitation, the Commissioner then has the burden at
Step 5 of coming forward with evidence of specific jobs in the
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Stacy Lee Melican, Claimant Case No. 18-cv-682-SM v. Opinion No. 2019 DNH 149
Andrew Saul, Commissioner, Social Security Administration, Defendant
O R D E R
Claimant, Stacy Lee Melican filed this action, challenging
a decision by the Commissioner of the Social Security
Administration denying her application for Disability Insurance
Benefits under Title II of the Social Security Act (the “Act”),
42 U.S.C. § 423. The Magistrate Judge issued a Report and
Recommendation (“R&R”) on June 12, 2019 (document no. 12),
recommending that the Commissioner’s decision be vacated, and
the case remanded for further proceedings. The Commissioner
then filed a timely Objection to the Report and Recommendation
(document no. 13).
Having carefully considered the Magistrate Judge’s Report
and Recommendation, and the Commissioner’s Objection, the court
declines to adopt the recommendation, as explained below, and
affirms the Commissioner’s decision. Standard of Review
On referral of a dispositive motion, a magistrate judge
issues proposed findings in a report and recommendation. 28
U.S.C. § 636(b)(1)(B). The parties then have an opportunity to
object to the report and recommendation, and to respond to an
objection. Fed. R. Civ. P. 72(b)(2). The district judge then
conducts a de novo review of any part of the report and
recommendation that has been objected to, and may “accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); accord Fed. R. Civ. P. 72(b)(3).
Background
Melican challenged the ALJ’s decision denying benefits on
three grounds: (1) the ALJ erroneously included a light work
capacity in her RFC, even though state agency consultant James
Trice, M.D., opined that Melican possessed only a sedentary work
capacity; (2) the ALJ failed to adequately address her upper
extremity limitations as assessed by John Kane, APRN; and (3)
the ALJ improperly discounted a New Hampshire Department of
Health and Human Service determination concerning a claimed back
impairment. The magistrate judge determined that remand was
necessary because the ALJ did not “address Dr. Trice’s
2 conclusion that Melican was limited to sedentary work, despite
unhesitatingly accepting the other aspects of Dr. Trice’s
opinion.” Document No. 12, at 6.
Discussion
In his Objection, the Commissioner argues that the
Magistrate’s recommendation should not be adopted because it
rests upon both factual and legal error. First, says the
Commissioner, Dr. Trice did not opine that claimant was
restricted to “sedentary” work. Rather, that “sedentary”
designation was made by the non-physician disability
adjudicator/examiner, Sharon Welch, who evaluated the vocational
aspects of Melican’s case. But, the Commissioner continues,
even if Dr. Trice had so opined, such labels are not a critical
part of the RFC assessment, which eschews broad exertional
categories in favor of a function-by-function assessment.
Finally, the Commissioner contends, even if the ALJ had adopted
the disability examiner’s “sedentary” label, that still would
have no bearing on the substance of the decision.
The Commissioner’s arguments are persuasive. First, the
Commissioner is correct in noting that the record discloses that
the “sedentary” designation was made by Welch as part of her
vocational analysis, and not by Dr. Trice. In the Disability
3 Determination Explanation, Dr. Trice proposed specific
functional limitations (limitations that were eventually adopted
by the ALJ). See Administrative Record (“Admin. Rec.”) at 64-
66. The disability examiner, Welch, then evaluated those
functional limitations from a vocational perspective, and
assigned the “sedentary” designation. 1 Admin. Rec. at 68-70.
Welch is not a “medical source,” and therefore her “sedentary”
designation was not a medical opinion. See, e.g., Stratton v.
Astrue, 987 F.Supp.2d 135, 150–51 (D.N.H. 2012). See also
Chambers v. Colvin, No. 16-CV-087-LM, 2016 WL 6238514, at *6
(D.N.H. Oct. 25, 2016; Levesque v. Colvin, No. 13-CV-298-JL,
2014 WL 4531743, at *1 (D.N.H. Sept. 11, 2014).
Even if Welch’s sedentary designation could be considered a
medical opinion, classification of an RFC as “sedentary” is an
issue reserved to the Commissioner. See 20 C.F.R. § 404.1527.
See also 20 C.F.R. § 404.1546 (“If your case is at the
administrative law judge hearing level or at the Appeals Council
review level, the administrative law judge or the administrative
appeals judge at the Appeals Council (when the Appeals Council
makes a decision) is responsible for assessing your residual
functional capacity.”).
1 Notably, Welch determined that Melican was “not disabled” with a sedentary work capability. Admin. Rec. at 69.
4 The ALJ found that claimant retained the RFC to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) allowing for lifting 20 pounds occasionally and 10 pounds frequently; standing and/or walking 2 hours in an 8 hour work day; sitting 6 hours in an 8 hour workday; unlimited use of her hands and feet to operate controls and push and pull; she should never climb ladders, scaffolding, or ropes; she can frequently balance; and she can occasionally climb ramps/stairs, stoop, kneel, crouch, and crawl; she has no limitation on reaching, handling or feeling; but she is limited to frequent fingering. She has the ability to understand, remember, and carry out limited instructions [limited from detailed instructions]; her persistence and pace may be affected on a temporary basis but not to an unacceptable level; she would not be off task more than 10% of the day; and she could sustain concentration, persistence, and pace during the typical 2 hour periods of an 8-hour workday and a 40 hour work-week.
Admin. Rec. at 24. As mentioned, the ALJ adopted the
lifting/carrying, standing, walking, pushing and pulling
limitations as found by Dr. Trice. And, the ALJ determined that
those limitations fell between sedentary and light exertional
level work. Admin. Rec. at 33 (“the claimant’s ability to
perform all or substantially all of the requirements of [light]
work has been impeded by additional limitations”). In light of
those restrictions, and based on the testimony of the vocational
expert, the ALJ concluded that claimant was not capable of
performing her past relevant work. Admin. Rec. at 32.
5 “Once [an] applicant has met his or her burden at Step 4 to
show that he or she is unable to do past work due to the
significant limitation, the Commissioner then has the burden at
Step 5 of coming forward with evidence of specific jobs in the
national economy that the applicant can still perform.” Seavey
v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (citations omitted).
In certain circumstances, an ALJ may apply the Medical-
Vocational Guidelines (the “Grid”) set forth in 20 C.F.R. Part
404, Subpart P, Appendix 2, which “mandate a specific conclusion
with respect to whether a claimant is disabled.” Foxworth v.
Colvin, 249 F. Supp. 3d 585, 587 (D. Mass. 2017). The Grid
takes into account the claimant’s exertional capacity, age,
education, and prior work experience, and, based on those
factors, “directs a conclusion as to whether the individual is
or is not disabled.” Seavey, 276 F.2d at 5 (quotation omitted).
However, in those situations, such as here, where a
claimant’s RFC falls between exertional ranges of work, the
Medical-Vocational Guidelines (the “Grids”) are not dispositive.
Stephens v. Barnhart, 50 Fed. Appx. 7, 10 (1st Cir. 2002) (“If
the ALJ's finding that Stephens was capable of some medium work
is sustainable, Stephens' RFC would fall between two exertional
ranges, thereby rendering the Grids inconclusive.”). In such
situations, “a vocational expert ought to be consulted.” Silva
6 v. Berryhill, 263 F. Supp. 3d 342, 349 (D. Mass. 2017) (citing
SSR 83–12, 1983 WL 31253, at *2).
That is what the ALJ did in this case, posing to the
vocational expert a hypothetical that incorporated an accurate
assessment of the claimant’s impairments and functional
limitations. See Admin. Rec. at 52-54. And, the ALJ was
entitled to rely upon the vocational expert’s expertise in
concluding that the claimant was capable of performing the jobs
the expert identified. See, e.g. Putnam v. Astrue, No. 10-cv-
371-SM, 2011 WL 3320518, at *5 (D.N.H. Aug. 1, 2011). The court
can find no error in that procedure or finding.
Remand was recommended based upon the Disability
Determination Explanation and Dr. Trice’s opinion, and,
therefore, did not reach claimant’s additional arguments. The
court, however, has considered claimant’s additional arguments,
and finds them unpersuasive. The ALJ’s decision is supported by
substantial record evidence, and so must necessarily be
sustained.
Conclusion
This court’s review of the ALJ’s decision is both limited
and deferential. The court is not empowered to consider
7 claimant’s application de novo, nor may it undertake an
independent assessment of whether she is disabled under the Act.
Rather, the court’s inquiry is “limited to determining whether
the ALJ deployed the proper legal standards and found facts upon
the proper quantum of evidence.” Nguyen v. Chater, 172 F.3d 31,
35 (1st Cir. 1999). Provided the ALJ’s findings are properly
supported by substantial evidence — as they are in this case —
the court must sustain those findings even when there may also
be substantial evidence supporting the contrary position. Such
is the nature of judicial review of disability benefit
determinations. See, e.g., Tsarelka v. Secretary of Health &
Human Services, 842 F.2d 529, 535 (1st Cir. 1988) (“[W]e must
uphold the [Commissioner’s] conclusion, even if the record
arguably could justify a different conclusion, so long as it is
supported by substantial evidence.”); Rodriguez v. Secretary of
Health & Human Services, 647 F.2d 218, 222 (1st Cir. 1981) (“We
must uphold the [Commissioner’s] findings in this case if a
reasonable mind, reviewing the evidence in the record as a
whole, could accept it as adequate to support his conclusion.”).
Having carefully reviewed the administrative record and the
arguments advanced by both the Commissioner and claimant, the
court necessarily concludes that there is substantial evidence
in the record to support the ALJ’s determination that claimant
8 was not “disabled,” as that term is used in the Act, at any time
prior to the date of her decision.
For the foregoing reasons, as well as those set forth in
the Commissioner’s legal memoranda, claimant’s motion to reverse
the decision of the Commissioner (document no. 8) is denied, and
the Commissioner’s motion to affirm her decision (document no.
11) is granted. The Clerk of the Court shall enter judgment in
accordance with this order and close the case.
SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
September 9, 2019
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