JOHN H. RICH, III, Magistrate Judge.
The plaintiff in this Social Security Disability ("SSD") appeal contends that the administrative law judge failed to give appropriate weight to the opinions of two of his treating physicians, should have found that his depression and anxiety were severe impairments, and improperly evaluated his credibility. I recommend that the commissioner's decision be affirmed.
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 December 31, 2010, Finding 1, Record at 20; that he suffered from degenerative disc disease of the lumbar spine and kyphosis of the thoracic spine, 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 20-24; that he retained the residual functional capacity ("RFC") to perform light work, so long as he avoided overhead work, sat, stood, or walked no more than a total of six hours each in an eight-hour workday, was limited to occasional balancing, stooping, kneeling, crouching, crawling, climbing ramps and stairs, and never climbed ladders, ropes, or scaffolds, Finding 5, id. at 26; that he could perform his past relevant work as a pharmacy technician, Finding 6, id. at 29; and that, therefore, he had not been under a disability, as that term is defined in the Social Security Act, at any time before his date last incurred, Finding 7, id. at 30. The Appeals Council declined to review the decision, id. at 1-3, making it 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 4 of the sequential evaluation process, at which stage the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. § 404.1520(f); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). At this step, the commissioner must make findings of the plaintiff's RFC and the physical and mental demands of past work and determine whether the plaintiff's RFC would permit performance of that work. 20 C.F.R. § 404.1520(f); Social Security Ruling 82-62, reprinted in West's Social Security Reporting Service Rulings 1975-1982 ("SSR 82-62"), at 813.
The plaintiff's statement of errors also implicates 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).
The plaintiff contends that the administrative law judge should have found that his depression and anxiety were both severe impairments. Plaintiff's Statement of Errors ("Itemized Statement") (ECF No. 9) at 15-17. Specifically, he faults the administrative law judge for relying on the opinion of one state-agency psychologist and rejecting that of another, when the second was completed only after review of notes from a treating physician that were not available to the first. Id. at 16.
The administrative law judge wrote the following about the plaintiff's claimed mental impairments in the years 2007 and 2008:
On November 12, 2008, the claimant voluntarily presented for inpatient care for continued titration of Suboxone, passive suicidal thoughts, and monitoring of his mental status. Dr. Stancliff noted that the claimant was alert and oriented times three but slightly anxious with increased psychomotor activity. Insight and judgment were good and memory, concentration and attention were intact. The claimant improved on medication with dissipation of his withdrawal symptoms and was cooperative and agreeable. Dr. Stancliff discharged the claimant to outpatient follow-up on November 13, 2008 with improved mood and normal psychomotor activity. Diagnoses were opiate dependence, opiate withdrawal and a panic disorder without agoraphobia. Global assessment of functioning score of 55 indicated moderate impairment in social and/or occupational functioning. The claimant remained on Suboxone but reported developing a possible tolerance to this medication on March 11, 2009.
Record at 21 (citations omitted). With regard to 2009, the administrative law judge stated the following:
Judgment and insight were good. Mental status examination was unchanged on December 5, 2009. . . . On April 3, 2010, the claimant's attention, concentration, and memory remained intact.
Id. at 21-22 (citations omitted). Based upon this medical history, the administrative law judge concluded that "[t]he claimant's medically determinable mental impairment of depression/anxiety does not cause more than minimal limitation in the claimant's ability to perform basic mental work activities and is therefore nonsevere." Id. at 22.
The administrative law judge followed this discussion with an analysis of the four functional areas set out in the applicable regulations for evaluating mental disorders. Id. at 22-23. This concluded her analysis at Step 2.
Later, the administrative law judge, in the course of her Step 4, analysis, revisited the issue of the plaintiff's alleged mental impairments.
Id. at 28-29 (citations omitted).
Assuming arguendo that the plaintiff's attack on the administrative law judge's reasoning at Step 4 may also be applied to her reasoning at Step 2 of the evaluation process, the administrative law judge may have "ignore[d]" the fact that Dr. Raclaw did not review any of Dr. Stancliff's treatment notes, Itemized Statement at 16, but the plaintiff ignores the fact that Dr. Stancliff wrote, as the administrative law judge noted, Record at 22, in her most recent entry
That letter was not available to Dr. Shapiro, upon whose record review dated September 14, 2009, the plaintiff contends that the administrative law judge should have relied. Id. at 668; Itemized Statement at 16-17. To the contrary, the administrative law judge reasonably relied on Dr. Stancliff's most recent opinion concerning the plaintiff's alleged mental impairments.
No error in the administrative law judge's conclusion at Step 2 has been demonstrated.
The plaintiff argues that the administrative law judge's conclusions about his credibility with respect to his alleged mental and physical impairments was based upon "the wrong legal [theory]" and that there was insufficient evidence to uphold those conclusions, Id. at 17-20. To the extent that this argument addresses the plaintiff's alleged mental impairments, my conclusion that the administrative law judge supportably determined that those impairments were not severe renders this objection moot.
The plaintiff contends that the administrative law judge wrongly "evaluate[d] the consistency of [his] statements. . . against the [administrative law judge's] own RFC" rather than "compar[ing] the claimant's testimony against the evidence of record." Itemized Statement at 19. He cites two Seventh Circuit opinions criticizing the language used by the administrative law judge in this case. Id. However, the language at issue, "the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment[,]" Record at 27, has not been rejected as "meaningless boilerplate" in this circuit and has been found by this court to be sufficient, in the context of each individual case, on many occasions. See, e.g., McLaughlin v. Astrue, No. 1:11-cv-365-JAW, 2012 WL 3042944, at *5 (D. Me. July 5, 2012); Murphy v. Astrue, No. 2:11-cv-241-NT, 2012 WL 1067683, at *3 (D. Me. Mar. 29, 2012).
The administrative law judge in this case compared the plaintiff's statements with the RFC she assigned to the plaintiff after engaging in an analysis of the medical evidence and the plaintiff's statements. That is clear from the very language that the plaintiff attacks: the administrative law judge discounted the plaintiff's statements to the extent that those statements were inconsistent with the assessment that led to the administrative law judge's conclusions about the plaintiff's RFC, not with the RFC itself.
That assessment occupies three single-space typed pages. It includes the following observations about the plaintiff's credibility:
This is a partial list of inconsistencies noted by the administrative law judge in her RFC assessment.
The plaintiff faults the administrative law judge for failing to mention certain medical evidence that could be construed as consistent with his complaints about the intensity, persistence, and limiting effects of his symptoms, Itemized Statement at 19, but the administrative law judge is not required to recite all of the medical evidence of record. He or she is merely required to base a conclusion about a claimant's credibility on substantial evidence. That was done in this case. See, e.g., Murphy, 2012 WL 1067693 at *3-*4; Anderson v. Astrue, No. 1:11-cv-109-DBH, 2012 WL 283018, at *5 (D. Me. Jan. 30, 2012) (administrative law judge may properly take into consideration activities of daily living in assessing credibility).
The plaintiff asserts that the administrative law judge "failed to follow the treating physician rule" by misconstruing the records of Dr. Mulvey, suggesting that his opinions should have been given controlling weight. Itemized Statement at 11-15. The "rule" to which he refers is 20 C.F.R. § 404.1527(c)(2), which provides, in relevant part:
The administrative law judge had the following to say about Dr. Mulvey's opinions:
Record at 28.
The state-agency physicians who reviewed the plaintiff's records, including those of Dr. Mulvey available at the time they performed their reviews, did not agree with the limitations that Dr. Mulvey imposed. Id. at 495-502; 660-67. This substantial evidence is not consistent with Dr. Mulvey's recommendations and means that Dr. Mulvey's opinions cannot be given controlling weight. E.g., Angis v. Astrue, No. 06-154-P-S, 2007 WL 2021921, at *2 (D. Me. July 11, 2007); Morneau v. Barnhart, No. 06-53-P-C, 2006 WL 3519315, at *4 (D. Me. Dec. 6, 2006); Northrup v. Barnhart, No. 02-181-B-W, 2003 WL 22466177, at *2 (D. Me. Oct. 31, 2003). The administrative law judge did not err in this regard.
The plaintiff argues in the alternative that the state-agency physicians' opinions are "insufficient to be considered substantial evidence" because Dr. Nakhuda's review "was limited to the report from Dr. Wright, four treatment notes from Dr. Mulvey, and notes from Perkis & Feremz Family Practice," while "it is unclear what records were reviewed" by Dr. Biddison. Itemized Statement at 14.
It is true that Dr. Nakhuda's review, dated March 31, 2009, Record at 502, was probably completed before Dr. Mulvey filled out the questionnaire that provides the basis for the plaintiff's argument, which is undated but was submitted with a cover letter dated September 9, 2009, id. at 531, 539. However, Dr. Nakhuda also reviewed an MRI of the plaintiff's lumbar spine dated January 5, 2009, and MRIs of the thoracic and cervical spines, and hospital records, which the itemized statement fails to mention. Id. at 502.
Because Dr. Biddison does not list on the physical RFC form that he filled out each of the specific medical records that he reviewed, id. at 666-67, the plaintiff takes the position that it must be assumed that he reviewed no records other than the very few that are listed. Itemized Statement at 14. Dr. Biddison's report is also dated before the form completed by Dr. Mulvey upon which the plaintiff relies, see Record at 667, but neither that date nor the plaintiff's assumption is determinative.
Dr. Biddison completed his physical RFC form only a few days before the date of Dr. Mulvey's form. The plaintiff may no assume that Dr. Biddison did not review any of the medical records available to Dr. Mulvey. The RFC form itself directs the reviewing physician to "[b]ase your conclusions on
Finally, the plaintiff contends that application of the evaluation factors set out in 20 C.F.R. § 404.1527(c)(2)-(6) requires the administrative law judge to credit Dr. Mulvey's opinions over those of Dr. Nakhuda and Dr. Biddison. It is true that the state-agency physicians did not treat the plaintiff, while Dr. Mulvey had treated him for a period of two years and three months, Record at 367, 531, when he first filled out the plaintiff's "multiple impairment questionnaire." 20 C.F.R. § 404.1527(c)(2). Dr. Mulvey's entries on the questionnaire cite some medical signs to support his opinion, but not laboratory findings, and he also indicates that, to some degree, his opinions are based on the plaintiff's reports to him rather than on objective medical evidence. Record at 535 ("unknown" how long after getting up the patient can sit down again), 538 (earliest date to which listed impairments apply is "Jan. 2004 per patient report"). 20 C.F.R. § 404.1527(c)(3).
Contrary to the plaintiff's assertion, and as previously discussed, Dr. Mulvey's opinions are not consistent with the record as a whole, although they may well be supported in part by other medical evidence in the record.
The plaintiff has failed to demonstrate that the administrative law judge was required to adopt Dr. Mulvey's opinion and conclusions. Accordingly, he is not entitled to remand on the basis of his claim that the administrative law judge failed to apply the treating physician rule.
For the foregoing reasons, I recommend that the commissioner's decision be
