United States District Court, D. Maine
REPORT AND RECOMMENDED
H. Rich III United States Magistrate Judge.
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.
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).
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).
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).
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. 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 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
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
Dr. Pallatroni's Report
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.
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.
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.