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Diplock v. Colvin

United States District Court, D. Maine

January 2, 2015

CHARLES ROBERT DIPLOCK, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM DECISION [1]

JOHN H. RICH, III, Magistrate Judge.

This Social Security Disability ("SSD") and Supplemental Security Income ("SSI") appeal raises the question of whether the administrative law judge supportably found that the plaintiff had no severe impairments. The plaintiff seeks remand on the basis that the finding was erroneous with respect to both his physical and mental impairments. See Itemized Statement of Specific Errors ("Statement of Errors") (ECF No. 15) at 4-6. Because the administrative law judge's determination is supported by substantial evidence, I affirm the commissioner's decision.

Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. §§ 404.1520, 416.920; Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the administrative law judge found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act through June 30, 2012, Finding 1, Record at 15; that he had medically determinable impairments of back pain, neck pain, knee pain, mood disorder, and alcohol abuse, Finding 3, id.; that he did not have an impairment or combination of impairments that had significantly limited, or was expected to significantly limit, his ability to perform workrelated activities for 12 consecutive months and, therefore, did not have a severe impairment or combination of impairments, Finding 4, id. at 16; and that he, therefore, had not been disabled from January 1, 2007, his alleged onset date of disability, through the date of the decision, November 30, 2012, Finding 5, id. at 19. The Appeals Council declined to review the decision, id. at 6-8, making the decision the final determination of the commissioner, 20 C.F.R. §§ 404.981, 416.1481; 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 the determination made is supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Manso-Pizarro v. Secretary of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

The administrative law judge reached Step 2 of the sequential evaluation process. Although a claimant bears the burden of proof at Step 2, it is a de minimis burden, designed to do no more than screen out groundless claims. McDonald v. Secretary of Health & Human Servs., 795 F.2d 1118, 1124 (1st Cir. 1986). When a claimant produces evidence of an impairment, the commissioner may make a determination of non-disability at Step 2 only when the medical evidence "establishes only a slight abnormality or [a] combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work even if the individual's age, education, or work experience were specifically considered." Id. (quoting Social Security Ruling 85-28).

I. Discussion

A. Physical Impairments

The administrative law judge found:

The [plaintiff] alleges back and neck pain. Patient notes with chiropractor John M. Laney, D.C. in May 2012 state the [plaintiff's] x-rays indicated moderate cervical spondylosis from C3 through C6 and hypertrophy from C3 to C6. However, the original x-ray report is not in evidence and this appears to be based on the chiropractor's evaluation. A chiropractor is not an acceptable medical source for the purpose of establishing a diagnosis, under the Regulations. The [plaintiff] reported neck pain for the past five days, but then on May 7, he reported improvement and denied having headaches. On March 23, 2012, he reported low back pain and left side pain without radicular symptoms, and reported the pain was intermittent. Despite reported pain, [his] activities indicate few related functional limitations. He reported in May 2012 he rides a bicycle between three and seven times per week for exercise. The records and the [plaintiff's] activities do not support functional limitations.
In a December 2010 consultative exam, the [plaintiff] reported that he has intermittent back pain that improves with chiropractic adjustments. In exam notes, Edward Harshman, M.D. also observed that he had fine crepitus in both knees. However, in exam notes, he observed the [plaintiff] put on and took off laced hightop shoes easily, had normal gait, including heel, toe, and tandem, and could squat without difficulty to 135 degrees and stand unaided. His strength in the upper and lower limbs was normal. Dr. Harshman opined that [he] was not restricted in his ability to sit, stand, walk or lift and carry. The [plaintiff] has never had surgery, injections for pain, or physical therapy related to a back or knee impairment.

Record at 17-18 (citations omitted).

The administrative law judge gave Dr. Harshman's opinion "some limited weight." Id. at 18. He explained that Dr. Harshman's finding that the plaintiff had no exertional limitations supported the determination that the plaintiff's impairments were nonsevere. See id. However, he gave little weight to Dr. Harshman's opinion that the plaintiff could rarely crouch and occasionally climb ladders, which he deemed unsupported by diagnostic testing, seemingly based on mild crepitus, and inconsistent with the plaintiff's reports that he frequently rode a bicycle and walked more than one mile to get to his hearing. See id. He noted that the plaintiff had never had surgery, shots for pain, or other treatment. See id. He added that the plaintiff had testified that he had injured his knee at age 23 but was able to return to work, and the record did not support workrelated functional limitations due to a knee impairment. See id.

He accorded significant weight to the opinions of agency nonexamining consultants that the plaintiff's impairments were nonsevere, deeming those opinions consistent with the medical evidence and the plaintiff's activities. See id. at 18. With respect to physical impairments, he evidently referred to the opinion of Donald Trumbull, M.D., dated December 29, 2010, finding no severe physical impairments. See id. at 664.

The plaintiff complains that the administrative law judge erroneously disregarded Dr. Laney's treatment notes on the basis that he was not an acceptable medical source for the purpose of establishing the existence of a medically determinable impairment. See Statement of Errors at 4-5; 20 C.F.R. §§ 404.1513(a) and 416.913(a) (chiropractors not among acceptable medical sources). He contends that, because the administrative law judge determined that his back, neck, and knee pain were medically determinable impairments, he could and should have taken Dr. Laney's notes into consideration for purposes of establishing those impairments' severity. See Statement of Errors at 5; see also 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) (commissioner "may also use evidence from other sources [such as chiropractors] to show the severity of [a claimant's] impairment[s] and how it affects [his or ...


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