United States District Court, D. New Hampshire
J McAuliffe United States District Judge.
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).
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.
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
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.
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.
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. 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).
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.”).
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 ...