UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Stacy Lee Melican, Claimant Case No. 18-cv-682-SM v. Opinion No.

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”),

. 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.

(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.”

(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,

, 150–51 (D.N.H. 2012). See also

Chambers v. Colvin, No. 16-CV-087-LM,

, at *6

(D.N.H. Oct. 25, 2016; Levesque v. Colvin, No. 13-CV-298-JL,

, 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

.

See also

(“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,

(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,

(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,

(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,

(D. Mass. 2017) (citing

SSR 83–12,

, 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,

, 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,

(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,

(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,

(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

cc: All counsel

9