2004 | Cited 0 times | D. Maine | March 3, 2004


1. This action is properly brought under 42 U.S.C. § 405(g). Thecommissioner has admitted that the plaintiff has exhausted hisadministrative remedies. The case is presented as a request for judicialreview by this court pursuant to Local Rule 16.3(a)(2)(A), which requiresthe plaintiff to file an itemized statement of the specific errors uponwhich he seeks reversal of the commissioner's decision and to completeand file a fact sheet available at the Clerk's Office. Oral argument washeld before me on February 25, 2004, pursuant to Local Rule 16.3(a)(2)(C)requiring the parties to set forth at oral argument their respectivepositions with citations to relevant statutes, regulations, caseauthority and page references to the administrative record. This Social Security Disability ("SSD") appeal raises the questionwhether substantial evidence supports the commissioner's determinationthat the plaintiff, who alleges that he has been disabled from workingfrom and after his date last insured (December 31, 1996) by depression,anxiety and cognitive disorder secondary to cerebral aneurysm, had nosevere mental impairment as of the relevant time. I recommend that thedecision of the commissioner be vacated and the case remanded for furtherproceedings. In accordance with the commissioner's sequential evaluation process,20 C.F.R. § 404.1520, Goodermote v. Secretary of Health & HumanServs., 690 F.2d 5, 6 (1st Cir. 1982), the administrativePage 2law judge found, in relevant part, that the plaintiff had acquiredsufficient quarters of coverage to remain insured only through December31, 1996, Finding 1, Record at 19; that he had the following medicallydeterminable severe impairments-status post two cranial aneurysms anddisorders of the back (discogenic and degenerative) — but that anymental impairments present were not severe, Finding 3, id.; thatdespite his medically severe impairments, he retained the residualfunctional capacity ("RFC") to perform his past relevant work on aregular and consistent basis during the period from February 5, 1990through December 31, 1996, Finding 6, id. at 20; and that hetherefore was not under a disability at any time from February 5, 1990through December 31, 1996, Finding 7, id. The Appeals Councildeclined to review the decision, id. at 8-9, making it the finaldetermination of the commissioner, 20 C.F.R. § 404.981; Dupuis v.Secretary of Health & Human Servs., 869 F.2d 622, 623 (1st Cir.1989). The standard of review of the commissioner's decision is whether thedetermination made is supported by substantial evidence.42 U.S.C. § 405(g); Manso-Pizarro v. Secretary of Health & Human Servs.,76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must besupported by such relevant evidence as a reasonable mind might accept asadequate to support the conclusion drawn. Richardson v. Perales,402 U.S. 389, 401 (1971);Rodriguez v. Secretary of Health & HumanServs., 647 F.2d 218, 222 (1st Cir. 1981). The administrative law judge in this case reached Step 4 of thesequential process, at which stage the claimant bears the burden of proofof demonstrating inability to return to past relevant work.20 C.F.R. § 404.1520(e); Bowen v. Yuckert, 482 U.S. 137, 146 n.5(1987). At this step the commissioner must make findings of theplaintiff's residual functional capacity and the physical and mentaldemands of pastPage 3work and determine whether the plaintiff's residual functionalcapacity would permit performance of that work.20 C.F.R. § 404.1520(e); Social Security Ruling 82-62, reprinted in West'sSocial Security Reporting Service Rulings 1975-1982 ("SSR 82-62"), at 813. The plaintiff's complaint also implicates Step 2 of the sequentialevaluation process. Although a claimant bears the burden of proof at thisstep, it is a de minimis burden, designed to do no more thanscreen out groundless claims. McDonald v. Secretary of Health &Human Servs., 795 F.2d 1118, 1123 (1st Cir. 1986). When a claimantproduces evidence of an impairment, the commissioner may make adetermination of non-disability at Step 2 only when the medical evidence"establishes only a slight abnormality or combination of slightabnormalities which would have no more than a minimal effect on anindividual's ability to work even if the individual's age, education, orwork experience were specifically considered." Id. at 1124(quoting Social Security Ruling 85-28). The plaintiff identifies four alternative grounds for remand, assertingthat the administrative law judge erred in (i) assessing his mentalimpairments as non-severe — a decision assertedly unsupported bysubstantial evidence, (ii) proceeding without a medical expert, inviolation Social Security Ruling 83-20, (iii) making a credibilityfinding unsupported by substantial evidence and inconsistent with thecommissioner's own regulatory criteria, and (iv) failing to recontact atreating physician for clarification as required by Social SecurityRuling 96-5p and Lemelin v. Apfel, No. 98-282-P-H, 1999 WL33117108 (D. Me. May 17, 1999) (rec. dec., aff'd June 8, 1999).See generally Itemized Statement of Specific Errors ("Statementof Errors") (Docket No. 8). I agree that the Step 2 finding concerningthe plaintiff's mental impairment is unsupported by substantial evidence,warranting reversal and remand. I. DiscussionPage 4 This is a sad case, in which the plaintiff and his wife, who seemed tohave everything going for them, suffered a reversal of fortune when inFebruary 1990 the plaintiff (then only 28 years old) was found nearlycomatose as a result of a ruptured cerebral aneurysm, following which heunderwent two successive brain surgeries. See, e.g., Record at255, 274-77, 333-35. Physically, the plaintiff made what one treatingphysician, David L. Ewing, M.D., described in 1992 as "a very remarkable"recovery. See id. at 335; see also, e.g., id. at 274,277 (plaintiff discharged from hospital on March 10, 1990 in excellentcondition, asymptomatic). While the plaintiff claims some continuingphysical fallout, he primarily alleges that he has been disabled bydepression and anxiety secondary to his aneurysm ruptures. See, e.g.,id. at 46-48, 220. The plaintiff first contends that the determination that his mentalimpairments were non-severe as of December 31, 1996 is unsupported bysubstantial evidence of record. See Statement of Errors at 1-3.The voluminous record in this case includes sharply conflicting evidenceas to whether his mental impairments were or were not severe as of thatdate. For example, psychiatrist David Dettman, D.O., with whom theplaintiff began treating on November 26, 2001, see Record at466, submitted a detailed retrospective report dated September 9, 2002opining that since at least December 31, 1996 the plaintiff has beenmarkedly limited in understanding and memory, sustained concentration andpersistence, social interaction and adaptation, as a result of which heclearly has been unable to sustain any gainful full-time employmentduring that time, see id. at 482-85. By contrast, twonon-examining Disability Determination Services ("DOS") psychologistsfiled their own retrospective opinions to the effect that the plaintiff'sdepression was mild and non-severe as of the relevant time. Seeid. at 371-79 (Psychiatric Review Technique Form ("PRTF") completedApril 4, 2000 by James J. Wanstrath, Ph.D.), 382-86 (PRTF completedSeptember 24, 2001 by David R. Houston, Ph.D.).Page 5 Beyond this, DBS consulting examiner Raymond L. Yockey, M.D., submitteda report dated July 18, 1996 describing the plaintiff's depression asapparently in remission and well-controlled on Prozac. Id. at347. And a non-examining DDS physician whose name is illegible completeda PRTF on August 14, 1996 finding the plaintiff's mental impairments tobe non-severe. See id. at 349-56. Resolution of such evidentiary conflicts normally is the province ofthe administrative law judge. See, e.g., Rodriguez, 647 F.2d at222 ("The Secretary may (and, under his regulations, must) take medicalevidence. But the resolution of conflicts in the evidence and thedetermination of the ultimate question of disability is for him, not forthe doctors or for the courts."). Nonetheless, "the amount of weight thatcan properly be given the conclusions of non-testifying, non-examiningphysicians will vary with the circumstances, including the nature of theillness and the information provided the expert." Rose v.Shalala, 34 F.3d 13, 18 (1st Cir. 1994) (citations and internalquotation marks omitted). "In some cases, written reports submitted bynon-testifying, non-examining physicians cannot alone constitutesubstantial evidence, although this is not an ironclad rule."Id. (citations omitted). Counsel for the plaintiff contended at oral argument — and Iagree — that in this case the DDS reports cannot serve assubstantial evidence inasmuch as the BBS consultants did not have thebenefit of a number of medical records submitted subsequent to theirassessments. See, e.g., Record at 234-38 (letters dated May 23,2002 and June 20, 2002 from plaintiff's counsel transmitting additionalproposed exhibits), 394-443 (Exhibits 21F through 27F). Those latersubmitted materials include medical records documenting the plaintiff'sstatus in the months immediately following his date last insured.See, e.g., id. at 416-19. At oral argument, counsel for the commissioner posited that, evenassuming arguendo that the commissioner erred at Step 2, anysuch error is harmless inasmuch as the Record supports an ultimatePage 6finding of non-disability as of the plaintiff's date last insured.He cited no authority for the proposition that the commissioner may beexcused from methodical application of the sequential-evaluation process,and I know of none. I am unwilling simply to assume, in the absence ofany further development of this record, that were the commissioner toreach Step 5 she would meet her burden of proving that the plaintiff iscapable of performing work existing in substantial numbers in thenational economy. Although the Step 2 error alone warrants reversal, I briefly comment onthe plaintiff's remaining points of error (none of which I findmeritorious) for the benefit of the parties on remand: 1. Failure To Call Medical Expert Per SSR 83-20. The plaintiffasserts that the administrative law judge failed to call a medicalexpert, in contravention of Social Security Ruling 83-20. SeeStatement of Errors at 3-4. However, Ruling 83-20 pertains toadjudication of the onset date of disability once a claimant has beendetermined to be disabled. See Social Security Ruling 83-20,reprinted in West's Social Security Reporting Service Rulings1983-1991 ("SSR 83-20"), at 49 ("In addition to determining that anindividual is disabled, the decisionmaker must also establish the onsetdate of disability."); see also, e.g., Key v. Callahan,109 F.3d 270, 274 (6th Cir. 1997) ("Since there was no finding that theclaimant is disabled as a result of his mental impairment or any otherimpairments or combination thereof, no inquiry into onset date isrequired."). No such determination has been made in this case. While theadministrative law judge did allude to Dr. Dettman's current findings, hisfocus was on whether the plaintiff was disabled as of December 31, 1996: [A]lthough Dr. Dettman's opinion may be supported with respect to the claimant's current condition, there is insufficient supportable basis upon which to rely to apply that opinion to the claimant's condition prior to December 31, 1996. * * * As noted above, although current evidence supports marked functional limitations inPage 7 activities of daily living, social functioning, and concentration, persistence and pace, there is no indication that such limitations existed prior to December 31, 1996.Record at 17-18. These remarks cannot reasonably be construed asconstituting a determination that the plaintiff became disabledsubsequent to his date last insured. SSR 83-20 accordingly is inapposite. 2. Credibility Assessment. The plaintiff also contends thatremand is warranted inasmuch as, in assessing credibility, theadministrative law judge entirely ignored his hearing testimony as wellas that of his wife. See Statement of Errors at 4-5. He suggeststhat this omission contravened Social Security Ruling 96-7p, seeid.; however, while that ruling requires adjudicators to set forth"specific reasons for the finding on credibility, supported by theevidence in the case record," it does not demand that they specificallydiscuss hearing testimony, see Social Security Ruling 96-7p,reprinted in West's Social Security Reporting Service Rulings1983-1991 (Supp. 2003) ("SSR 96-7p"), at 134. The administrative lawjudge supplied several specific reasons for his credibility finding, eachsupported by a Record citation (for example, that the plaintiff's allegedlevel of fatigue was inconsistent with reports of injuries incurred whileplaying tennis and ping-pong and with his report in March 1997 ofcontinued back-country skiing every weekend). See Record at 18,323, 326, 417. I find no reversible error with respect to theadministrative law judge's credibility findings. See, e.g.,Frustaglia v. Secretary of Health & Human Servs., 829 F.2d 192,195 (1st Cir. 1987) ("The credibility determination by the ALJ, whoobserved the claimant, evaluated his demeanor, and considered how thattestimony fit in with the rest of the evidence, is entitled to deference,especially when supported by specific findings."). That said, I note thatit is appropriate for the commissioner to take a fresh look atcredibility upon remand. 3. Failure To Follow SSR 96-5p and Lemelin: Theplaintiff finally asserts that thePage 8administrative law judge contravened Social Security Ruling 96-5pand this court''sLemelin decision when he refused to call amedical expert or, at the least, seek clarification from Dr. Dettman.See Statement of Errors at 5-6. Ruling 96-5p provides, inrelevant part: Because treating source evidence (including opinion evidence) is important, if the evidence does not support a treating source's opinion on any issue reserved to the Commissioner and the adjudicator cannot ascertain the basis of the opinion from the case record, the adjudicator must make "every reasonable effort" to recontact the source for clarification of the reasons for the opinion.Social Security Ruling 96-5p, reprinted in West's SocialSecurity Reporting Service Rulings 1983-1991 (Supp. 2003) ("SSR96-5p"), at 127. In Lemelin, the Appeals Council rejected theopinion of the claimant's longtime treating physician (who had treatedhim during the relevant period) on the ground that it was notwell-supported by other evidence of record. See Lemelin, 1999 WL33117108, at *4. The claimant complained, inter alia, thatpursuant to SSR 96-5p the Appeals Council should have contacted thetreating physician for clarification of the bases of his opinion beforesimply rejecting it out of hand. See id. This court agreed,determining on independent review that the record revealed no apparentbasis for the treating physician's opinion (which seemingly was at oddseven with his own progress notes). See id. at *4-*7. Itaccordingly remanded the case for further clarification pursuant to SSR96-5p. See id. at *9. In this case, as in Lemelin, the administrative law judgenoted that he found Dr. Dettman's opinion inconsistent with otherevidence of record, including Dr. Dettman's own progress notes.See Record at 16-17. Nonetheless, this case is materiallydistinguishable from Lemelin in that Dr. Dettman, who was notthe plaintiff's treating physician at the relevant time, meticulouslydetailed the bases for his retrospective opinion See Record at482-85. Thus, no duty arose to contact him for further clarificationpursuant to SSR 96-5p. See, e.g., May v. Barnhart, No. CIV.01-269-M, 2002 WL 1005103, at *6 (D.N.H. May 16, 2002)Page 9(inasmuch as it was clear that physicians' opinions were basedalmost entirely on claimant's own statements about her symptoms, therewas no need to contact the physicians for clarification pursuant to SSR96-5p). II. Conclusion For the foregoing reasons, I recommend that the decision of thecommissioner be VACATED and the case REMANDED forproceedings not inconsistent herewith. NOTICE A party may file objections to those specified portions of amagistrate judge's report or proposed findings or recommended decisionsentered pursuant to 28 U.S.C. § 636(b)(1)(B)for which de novo reviewby the district court is sought, together with a supporting memorandum,within ten (10) days after being served with a copy thereof. A responsivememorandum shall be filed within ten (10) days after the filing of theobjection. Failure to file a timely objection shall constitute a waiver ofthe right to de novo review by the district court and to appeal thedistrict court's order.

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