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Dore v. Saul

United States District Court, D. New Hampshire

September 17, 2019

Cynthia M. Dore
Andrew Saul, Commissioner Social Security Administration



         Cynthia Dore challenges the denial of her applications for disability insurance benefits and supplemental security income pursuant to 42 U.S.C. § 405(g). She contends that the Administrative Law Judge (“ALJ”) improperly evaluated medical opinions in her record. The Commissioner, in turn, moves for an order affirming the ALJ’s decision. I deny Dore’s motion and affirm the Commissioner’s decision.

         I. BACKGROUND

         A. Procedural Facts

         Dore is a 64-year-old woman with 11th grade education. She worked a variety of jobs in the retail industry, including as a retail manager and a convenience store cashier. She alleged disability as of November 2014, due to degenerative disc disease of the spine, anxiety disorder, and depressive disorder.

         Dore’s applications were initially denied in October 2015, and on reconsideration in February 2016. On November 2, 2017, she testified at a hearing before ALJ Paul Martin, who ultimately denied Dore’s claims. See Tr. 18-32. The Appeals Council denied her request for review in August 2018, rendering the ALJ’s decision the final decision of the Commissioner. See Tr. 7-9. Dore now appeals.

         B. Medical Opinion Evidence

         In September 2015, Dr. Robert Phelps, an orthopedic surgeon, performed a consultative examination of Dore. She exhibited impaired ability to perform postural changes, abnormal posture with elevation of the left shoulder and the left pelvis, limited range of motion of the lumbosacral spine, increased left leg pain with lumbar flexion, left thigh pain with strength testing on the left, sensory impairment of the left foot, impaired sharp-dull discrimination of the right foot, and increased low-back pain with straight leg raising on the left. Dr. Phelps diagnosed her with neck pain, left upper extremity weakness, ruptured discs in the lower back, mobility impairment with degenerative disc disease, and a right thoracic left lumbar scoliosis. He opined that Dore had markedly limited abilities to lift and carry even occasionally, stand, walk, and push or pull at the left lower extremity, as well as markedly to severely limited abilities to bend, climb, balance, stoop, kneel, crouch, and crawl. Tr. 342.

         The following month, Dr. Donald Trumbull, a state agency physician, reviewed Dore’s record, including Dr. Phelps’ report.

         He opined that Dore’s degenerative disc disease was a severe impairment, but that she retained the residual functional capacity (“RFC”) to perform the requirements of light work. Specifically, she could lift 20 pounds occasionally and 10 pounds frequently, stand or walk for 6 hours, and sit for 6 hours in an 8-hour workday. Dr. Trumbull also indicated that Dore was limited to frequent stooping and climbing of ramps or stairs and occasional kneeling, crouching, crawling, and climbing of ladders, ropes, or scaffolds. Tr. 44-46.

         In February 2016, another state agency physician, Dr. Sharon Hogan, reviewed the medical record and likewise opined that Dore could perform light work. According to Dr. Hogan, Dore was limited to occasional balancing, stooping, kneeling, crouching, crawling, and climbing of ramps, stairs, ladders, ropes, or scaffolds. Tr. 69-71.

         Orthopedic surgeon Dr. Frank Graf examined Dore and reviewed her medical records in July 2017. He diagnosed her with chronic lumbosacral musculoskeletal pain with left lower extremity radiculopathy in an L5 dermatomal pattern, as well as sensory and motor system disorder with abnormal cranial nerve examination and abnormal reflex activity. Dore reported frequent falls due to loss of coordination and balance. Dr. Graf opined that her pain symptoms would constantly interfere with the attention and concentration needed to perform even simple work tasks. According to Dr. Graf, Dore was limited to less than 2 hours of sitting, standing, or walking in an 8-hour workday, could stand only for 5 minutes and sit for 10 minutes at a time, would require the ability to shift positions at will and frequent unscheduled breaks, was advised to use a cane, was not capable of lifting more than 10 pounds, and was likely to miss more than 4 days of work every month. Tr. 739-47.

         On November 2, 2017, Dr. John Kwock, an orthopedic surgeon, testified at the administrative hearing after reviewing Dore’s medical file, including all the opinion evidence. Dr. Kwock opined that Dore had degenerative disc disease of the cervical, lumbar, and thoracic spine, but that these impairments did not meet or equal the criteria of any listed impairment. According to Dr. Kwock, Dore retained the capacity to perform light work, that is, she could lift and carry 20 pounds occasionally and 10 pounds frequently, sit for 6 hours, and stand or walk for 6 hours in an 8-hour workday. He further testified that she could frequently balance and kneel, occasionally stoop, crouch, and climb stairs or ramps, and could never crawl or climb ladders or scaffolds. Tr. 897-900.

         Dr. Kwock dismissed greater restrictions to Dore’s RFC as based on subjective reporting that was not consistent with imaging results and other objective medical evidence. Specifically, he disagreed with Dr. Graf’s opinion because the imaging studies in the record, including cervical and lumbar spine X-rays done in June and August 2014 and MRIs done in May 2015 and August 2017, indicated that Dore’s degenerative changes remained generally mild. Although the 2017 MRI included a finding of chronic severe degenerative disc disease at ¶ 5-S1, Dr. Kwock explained that there was no significant spinal stenosis and no significant disc herniation. Dr. Kwock acknowledged that there were positive examination findings in the record, such as reduced range of motion, slow gait, positive straight leg raise, decreased sensation, muscle weakness, and hyperactive reflexes. But he noted that those findings were not consistent from one exam to the next and that the record also reflected many negative findings in those same areas. Finally, Dr. Kwock testified that Dore’s use of a cane was not medically necessary given general findings of no significant motor weakness in her upper or lower extremities. Tr. 901-11.

         C. The ALJ’s Decision

         The ALJ assessed Dore’s claim under the five-step, sequential analysis required by 20 C.F.R. §§ 404.1520 and 416.920. At step one, he found that Dore had not engaged in substantial gainful activity since November 26, 2014, her alleged disability onset date. Tr. 21. At step two, the ALJ found that Dore’s degenerative disc disease of the spine was a severe impairment, but that her anxiety disorder and depressive disorder were not severe. Tr. 21-23. At step three, the ALJ determined that none of Dore’s impairments, considered individually or in combination, qualified for any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 23-24.

         The ALJ then found that Dore had the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that she was limited to simple, unskilled work. In addition, she could sit for 6 hours, stand or walk for 6 hours, climb ramps and stairs occasionally, crouch and stoop ...

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