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Duncan v. Colvin

United States District Court, D. Maine

September 28, 2016

GARRY A. DUNCAN, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

          MEMORANDUM DECISION [1]

          John H. Rich III, United States Magistrate Judge.

         This Social Security Disability (“SSD”) appeal raises the question of whether the administrative law judge supportably found that the plaintiff had no medically determinable impairment as of his date last insured for benefits, December 31, 2005. The plaintiff seeks remand on the bases that the administrative law judge erred in reaching that conclusion and in failing to apply Social Security Ruling 83-20 (“SSR 83-20”) to infer his onset date of disability. See Statement of Specific Errors (“Statement of Errors”) (ECF No. 13) at 1-10. I find no reversible error and, accordingly, affirm the commissioner's decision.

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 404.1520; 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 December 31, 2005, Finding 1, Record at 16; that, through his date last insured, there were no medical signs or laboratory findings to substantiate the existence of a medically determinable impairment, Finding 3, id.; and that he, therefore, had not been disabled from July 1, 2005, his alleged onset date of disability, through December 31, 2005, his date last insured, Finding 4, id. at 18. The Appeals Council declined to review the decision, id. at 1-3, making the decision the final determination 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 the determination 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 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

         The administrative law judge found that, although the plaintiff and his wife both testified that he had longstanding mental health issues and had long engaged in behaviors that included the performance of elaborate rituals and use of the bathroom 15 to 20 times a day, “[u]nfortunately, there are no contemporaneous medical records to establish any medically determinable impairments or the degree of limitation that existed prior to the date last insured.” Record at 17. She explained that the record contained neither “medical evidence prior to December of 2006, almost one year after the date last insured[, ]” nor “medical signs or laboratory findings that would support the existence of a medically determinable impairment as of the date last insured.” Id. at 18.

         She gave great weight to the 2012 opinions of three agency nonexamining consultants, Brian Stahl, Ph.D., Susan Moner, M.D., and Robert Hayes, D.O., that there was insufficient evidence to establish the existence of a medically determinably impairment as of the plaintiff's date last insured. See id.; see also id. at 87-88, 94.

         She gave little weight to a March 2013 opinion of treating source Sally Weiss, M.D., that the plaintiff experienced significant work-related mental limitations secondary to generalized anxiety and obsessive compulsive disorder (“OCD”) in that (i) Dr. Weiss did not begin treating the plaintiff until June 2012, almost seven years after his alleged disability onset date and six-and-a-half years after his date last insured, and (ii) Dr. Weiss's statements regarding the plaintiff's condition as of his date last insured were “not persuasive as they [were] based on the [plaintiff's] self-reports made years after the date last insured, ” and Dr. Weiss did “not describe any medical signs or laboratory findings prior to the date last insured that would support her opinion.” Id. at 18.

         The plaintiff contends that this determination was unsupported by substantial evidence in that the administrative law judge failed to evaluate whether he had a medically determinable impairment(s), without regard to his date last insured, and then to assess the severity of that impairment(s) with the benefit of evidence postdating his date last insured. See Statement of Errors at 4-6. He adds that the administrative law judge failed to assess the credibility of either his testimony or that of his wife or to discuss evidence postdating his date last insured that he contends shed light on his condition as of the relevant time period, including records showing that:

1. He presented to Stillwater Family Medicine on December 7, 2006, with “extreme anxiety - panic attacks” and physical symptoms that included heart palpitations and diarrhea, provided a “long list of symptoms written down[, ]” and was found on examination to have areas on his head where he had pulled out his hair. Id. at 3 (quoting Record at 434).
2. His palpitations were determined in testing performed later that month to be noncardiac in nature. See id.
3. As of December 2008, when he next received medical treatment, he was diagnosed with severe anxiety and obsessive compulsive disease traits. See id. at 3-4. At Stillwater Family Medicine in February 2009, he was diagnosed with unspecified episodic mood disorder, OCD, personality disorder, and panic disorder with agoraphobia, following which he began receiving mental health treatment. See id. at 4.
4. He received additional mental health evaluation and treatment in 2009 and 2010, and began treating with Dr. Weiss on June 7, 2012. See id.
5. In her letter dated March 14, 2013, Dr. Weiss wrote:
[The plaintiff's] generalized anxiety disorder is such that when stressed he feels the immediate urge to use the bathroom, this can happen and often does in the middle of [a] meeting, in the middle of doing anything, it makes it very difficult for him to meet expectations. He also believes things should be done “right[, ”] and when they are not done to his specifications, he gets angry; this seems to have dated back since before 2005, and interfered a great deal with his efforts to get an education.

Id. (quoting Record at 482) (edited to conform to underlying text).

         He argues that the administrative law judge failed to provide good reasons for rejecting the Weiss opinion, and that this was not harmless error because she assessed limitations of disabling severity that she indicated existed prior to his date last insured. See id. at 6.

         For the proposition that the administrative law judge was required to consider whether, at any point, the plaintiff had a medically determinable impairment, he cites SSR 83-20. See id. at 4-5. In the alternative, he contends that even if SSR 83-20 is inapposite, remand is warranted in these circumstances. At oral argument, his counsel distinguished this case from others in which this court has held SSR 83-20 inapplicable in that, here, the administrative law judge flatly refused to consider the totality of the evidence because of a lack of contemporaneous medical evidence, despite documentation that previous records had been destroyed.

         This is a sympathetic case. However, I conclude that SSR 83-20 is inapposite and that, pursuant to the applicable five-step sequential evaluation process, the administrative law judge reached a supportable determination that the plaintiff failed to demonstrate ...


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