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Dillingham v. Colvin

United States District Court, D. Maine

December 19, 2016

SCOTT DILLINGHAM, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

          REPORT AND RECOMMENDED 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 failed to address a particular diagnosis, adequately discussed the plaintiff's pain, wrongly considered agency reviews that did not consider a particular consultant's report, failed to consider properly the reports of lay observers, and failed to follow instructions from the Appeals Council. I recommend that the court affirm the commissioner's decision.

         In accordance with 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 March 31, 2012, Finding 1, Record at 13; that, through the date last insured, he suffered from degenerative disc disease of the cervical spine, a headache syndrome, and an affective disorder/depression, impairments that were severe but which, considered separately or in combination, did not meet or medically equal the criteria of any impairment listed in Appendix 1 to 20 C.F.R. Part 404, Subpart P (the “Listings'), Findings 3-4, id. at 13-14; that, through the date last insured, he had the residual functional capacity (“RFC”) to perform light work, except that he could balance, stoop, kneel, crouch, and climb ramps and stairs occasionally, had to avoid vibrating tools with both upper extremities and unprotected heights, was unable to crawl or climb ladders, ropes, or scaffolds, could reach in any direction only occasionally, could understand and remember simple instructions, could execute simple tasks, could interact with coworkers and supervisors and tolerate intermittent contact with the general public, and could adapt to occasional routine changes in the workplace, Finding 5, id. at 15; that, through the date last insured, he was unable to perform any past relevant work, Finding 6, id. at 22; that, considering his age (48 years old on the date last insured), education (at least high school), work experience, and RFC, there were jobs existing in significant numbers in the national economy before the date last insured that he could perform, Findings 7-10, id. at 23; and that he, therefore, had not been disabled from December 12, 2008, the alleged disability onset date, through the date last insured, Finding 11, id. at 24. 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 5 of the sequential evaluation process, at which stage the burden of proof shifts to the commissioner to show that a claimant can perform work other than his past relevant work. 20 C.F.R. § 404.1520(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the commissioner's findings regarding the plaintiff's RFC to perform such other work. Rosado v. Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

         I. Discussion

         A. Occipital Neuralgia

         The plaintiff contends that the administrative law judge committed reversible error when he found that the plaintiff suffered from a severe impairment of headache syndrome rather than occipital neuralgia.[2] Plaintiff's Itemized Statement of Errors (“Itemized Statement”) (ECF No. 11) at 2-7. He points to several diagnoses of occipital neuralgia and recites descriptions of the diagnosis from various internet sources. However, as the defendant points out, Defendant's Opposition to Plaintiff's Itemized Statement of Specific Errors (“Opposition”) (ECF No. 15) at 3, the plaintiff does not explain how the recognition of occipital neuralgia as an impairment distinct from headache syndrome[3] would have altered the administrative law judge's ultimate conclusion. This is an essential element of any appeal from a denial of an application for benefits that is based upon a failure to recognize or address a particular impairment. See, e.g., LaBonte v. Astrue, Civil No. 09-358-P-S, 2010 WL 2024895, at *3 (D. Me. May 18, 2010); Bolduc v. Astrue, Civil No. 09-220-B-W, 2010 WL 276280, at *4 n.3 (D. Me. Jan. 19, 2010). The plaintiff cites no evidence of functional limitations stemming from the occipital neuralgia that would not be caused by headache syndrome.[4]

         The plaintiff also argues that the administrative law judge failed to address the “significance” of the pain caused by his occipital neuralgia. Itemized Statement at 6-7. Again, he fails to explain how proper recognition of the severity of this pain would necessarily result in a different outcome on his application for benefits. In addition, the administrative law judge found that the plaintiff's “statements concerning the intensity, persistence and limiting effects of [his impairments] are not entirely credible[.]” Record at 16. Over the next six single-spaced pages of his opinion, the administrative law judge explained his reasons for this finding, including instances in which that testimony was contradicted by the medical evidence or the plaintiff's description of his activities of daily living. Id. at 16-22. Particularly where, as here, the plaintiff can only be relying on his own testimony to establish the functional limitations caused by his claimed pain, the administrative law judge's evaluation of the claimant's credibility is crucial. The plaintiff in this case does not challenge the credibility finding, so I do not see how re-evaluation of the significance of his pain, which is only self-reported, could be required.[5]

         B. Dr. Pallatroni's Report

         The plaintiff was referred to Henry F. Pallatroni, M.D., a neurosurgeon, to be evaluated for the surgical placement of a high cervical stimulator. Record at 813. Dr. Pallatroni agreed to perform the placement. Id. at 814. To the extent that the plaintiff complains that the administrative law judge failed to “specifically address” Dr. Pallatroni's diagnosis of occipital neuralgia, Itemized Statement at 5, the plaintiff's argument founders for the reasons previously discussed. The plaintiff does not attempt to distinguish Dr. Pallatroni's report in this regard.

         The plaintiff finds it “significant” that the state-agency reviewing physicians “did not see Dr. Pallatroni's report.” Id. at 7. Dr. Pallatroni's report is dated June 14, 2011. Record at 813. The reports of Homayoon Moghbeli, M.D., and Iver C. Nielson, M.D., the state-agency physicians, are dated March 16, 2011, and August 17, 2010, respectively. Id. at 130, 680. Dr. Moghbeli records diagnoses by other physicians of occipital neuralgia. Id. at 124, 129. The plaintiff contends, Itemized Statement at 8, that, because the state-agency physicians were “missing a key diagnosis by a neurosurgeon and explanation for it” and because their specialties were cardiology and surgery, possibly rendering them unable to understand the “rare and difficult diagnosis” of occipital neuralgia, the administrative law judge committed reversible error by giving their opinions “great weight.” Record at 22.

         The plaintiff again fails to identify any functional limitations resulting from occipital neuralgia that would change the outcome of the administrative law judge's decision. Dr. Pallatroni does not mention any functional limitations in his report. In order to find a basis for remand in the mere fact that the state-agency physicians did not see Dr. Pallatroni's report, on the showing made by the plaintiff, the court would have to engage in the very practice that is forbidden by longstanding Social Security law-drawing medical conclusions from raw medical evidence.

         C. Statements ...


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