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Melican v. Saul

United States District Court, D. New Hampshire

September 9, 2019

Stacy Lee Melican, Claimant
v.
Andrew Saul, Commissioner, Social Security Administration, Defendant

          ORDER

          Steven J McAuliffe United States District Judge.

         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 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 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.”).

         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 ...


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