JOHN H. RICH, III, 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).
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:
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 that he had a medically determinable impairment as of his date last insured.
The plaintiff contends that the administrative law judge erred in failing to apply SSR 83-20, which he asserts would have required her to consult a medical advisor to determine the date of the onset of his disability. See Statement of Errors at 6-10. SSR 83-20 provides, in relevant part:
SSR 83-20, reprinted in West's Social Security Reporting Service Rulings 1983-1991, at 49, 51.
The plaintiff acknowledges that this court has held that SSR 83-20 applies only when a claimant has been determined to be disabled, typically in the context of a separate application for for Supplemental Security Income ("SSI") benefits. See Statement of Errors at 9; Kelly v. Astrue, No. 06-168-P-S, 2007 WL 2021923, at *2 (D. Me. July 11, 2007) (rec. dec., aff'd Aug. 27, 2007) ("An official SSI disability finding typically supplies the predicate for triggering of the duty to infer disability onset date pursuant to SSR 83-20.").
In Wilson, the United States District Court for the District of New Hampshire held that SSR 83-20 applies when there is a need to determine whether a claimant was disabled as of a remote date, regardless of whether there is a finding that the claimant is currently disabled. The Wilson court explained:
Wilson, 17 F. Supp.3d at 142 (citation and internal quotation marks omitted).
The Wilson court rejected the commissioner's argument that this construction of SSR 83-20 would impose an undue administrative burden on the agency, stating:
Id. at 142-43 (citations, internal punctuation, and footnote omitted).
As the commissioner points out, see Opposition at 11, she challenged this interpretation of SSR 83-20 in an appeal of a similar case decided by the United States District Court for the District of New Hampshire, Fischer v. Colvin, Civil No. 13-cv-00463-PB, 2014 WL 5502922 (D.N.H. Oct. 30, 2014), which was pending before the First Circuit as of the date of oral argument in this case.
Following oral argument, the commissioner notified the court that the First Circuit had issued its ruling in Fischer. See Notice of Recent First Circuit Decision ("Notice") (ECF No. 21); Fischer v. Colvin, ___ F.3d ___, No. 15-1041, 2016 WL 4056032 (1st Cir. July 29, 2016). She argued that Fischer did not require this court to revisit its interpretation of SSR 83-20 in that, although the First Circuit called attention to the "analytical problems" surrounding that ruling, it expressly declined "to resolve the parties' dispute concerning the general applicability of SSR 83-20[.]" Notice at 1-2 (quoting Fischer, 2016 WL 4056032, at *1, *5) (edited to conform to underlying quotation). The First Circuit instead ruled that, "[e]ven assuming that [SSR 83-20] applies here, the medical evidence was not ambiguous and thus the ALJ did not need to draw inferences as to whether Fischer's onset date preceded the expiration of her insured status." Fischer, 2016 WL 4056032, at *1. The commissioner contended that, therefore, with respect to the question of the circumstances triggering SSR 83-20's application, the court should take the same position it had in Hughes v. Colvin, No. 2:15-cv-150-JHR, 2016 WL 225688 (D. Me. Jan. 19, 2016): that it would hew to its interpretation of SSR 83-20 absent guidance from the First Circuit by way of a ruling in Fischer (or any other case). See Notice at 2; Hughes, 2016 WL 225688, at *3 n.3.
The plaintiff countered that Fischer supported his case in that the First Circuit (i) recognized that medical evidence can be ambiguous, warranting calling a medical advisor, when "contemporaneous medical evidence is lacking" but "
The commissioner has the better argument. Fischer plainly did not resolve the point at issue here: whether SSR 83-20 applies in cases in which a claimant has not been found currently disabled. See Fischer, 2016 WL 4056032, at *4. While the First Circuit strongly criticized the commissioner's views on that issue, it did not invite lower courts to disregard them. To the contrary, the First Circuit observed that "the gaps and inconsistencies in the Commissioner's arguments as to the general applicability of SSR 83-20 pose a challenge to any decisionmaker attempting to determine when or how to apply the ruling[,]" urging the commissioner "to act swiftly to revise SSR 83-20 and enunciate a coherent explanation of the ruling's purpose and application, thereby providing much-needed clarity for claimants, the agency's own adjudicators, and the courts." Fischer, 2016 WL 4056032, at *7 (emphasis added).
While I am sympathetic to the plaintiff's counsel's argument that it is inequitable for the application of SSR 83-20 to turn primarily on the happenstance of whether a currently disabled claimant meets the income test to qualify for SSI benefits, it is not clear that, in promulgating SSR 83-20, the commissioner made the policy choice to displace the default five-step sequential evaluation process in all SSD cases in which there is a remote date last insured, requiring adjudicators in every such case to determine whether a claimant is currently disabled. Absent the clarification that the First Circuit has urged the commissioner to provide, I decline to alter this court's longstanding precedent on this point.
To the extent that the First Circuit construed language in SSR 83-20 regarding the need to call a medical advisor in a manner favorable to the plaintiff, that does not help him in view of the inapplicability of the ruling to his case.
Turning to the plaintiff's alternative argument that the administrative law judge reached an unsupportable decision even absent application of SSR 83-20, I find no harmful error.
As the commissioner argues, see Opposition at 3-9, on the evidence presented, the administrative law judge supportably determined that the plaintiff had failed to carry his burden of establishing that he had a medically determinable impairment prior to his date last insured.
"No symptom or combination of symptoms can be the basis for a finding of disability, no matter how genuine the individual's complaints may appear to be, unless there are medical signs and laboratory findings demonstrating the existence of a medically determinable physical or mental impairment(s) that could reasonably be expected to produce the symptoms[,]" Social Security Ruling 96-7p, reprinted in West's Social Security Reporting Service, Rulings 1983-1991 (Supp. 2015) ("SSR 96-7p"), at 133; see also 20 C.F.R. § 404.1508. A plaintiff's own reports to medical providers do not establish the existence of a medically determinable impairment. See 20 C.F.R. §§ 404.1508, 404.1528(a); Harthorne v. Astrue, Civil No. 08-120-B-W, 2008 WL 4937806, at *7 (D. Me. Nov. 16, 2008) (rec. dec., aff'd Dec. 8, 2008).
"It is the plaintiff's burden to produce sufficient evidence to allow the commissioner to reach a conclusion at Step 2; the absence of evidence provides support for a conclusion adverse to the plaintiff at this point in the sequential evaluation process." Coffin v. Astrue, Civil No. 09-487-P-S, 2010 WL 3952865, at *2 (D. Me. Oct. 6, 2010) (rec. dec., aff'd Oct. 27, 2010).
The plaintiff cites Basinger v. Heckler, 725 F.2d 1166 (8th Cir. 1984), for the proposition that "medical evidence of a claimant's condition subsequent to the expiration of the claimant's insured status is relevant evidence because it may bear upon the severity of the claimant's condition before the expiration of his or her insured status." Statement of Errors at 5 (quoting Basinger, 725 F.2d at 1169). However, Basinger is materially distinguishable in that there was no dispute that the claimant had a medically determinable impairment prior to his date last insured. See Basinger, 725 F.2d at 1167 ("It is evident that Basinger's ultimately disabling problems began prior to the expiration of his insured status in 1978.").
In this case, no contemporaneous medical evidence established that the plaintiff had a medically determinable impairment as of his date last insured. While, as the plaintiff's counsel noted at oral argument, there is documentation that the plaintiff was last treated by a "Dr. Mari" of Orangeburg Medical Group in Modesto, California, in 2001 but that the practice group had destroyed those records as of April 13, 2009, Record at 330, that unfortunate circumstances does not distinguish this case from this court's prior relevant precedent, see, e.g., Kovacs v. Astrue, Civil No. 08-241-B-W, 2009 WL 799407, at *2 (D. Me. Mar. 23, 2009) (rec. dec., aff'd Apr. 10, 2009) ("The [claimant] cites no authority for the proposition that taking into consideration the absence of contemporaneous treatment records [lost in a fire] was improper, and my research reveals none. While the unfortunate loss of [treating source] records rendered it more difficult for the [claimant] to make her case, it did not relieve her of her Step 2 burden.") (citation and footnote omitted).
It is true that, apart from discussing the Weiss opinion, the administrative law judge did not even consider whether the medical evidence of record, all of which postdated the plaintiff's date last insured, established the existence of a medically determinable impairment as of that date. See Record at 17-18. Yet, assuming that was error, the plaintiff fails to demonstrate that it was outcome-determinative. See, e.g., Bolduc v. Astrue, Civil No. 09-220-B-W, 2010 WL 276280, at *4 n.3 (D. Me. Jan. 19, 2010) ("[A]n error at Step 2 is uniformly considered harmless, and thus not to require remand, unless the plaintiff can demonstrate how the error would necessarily change the outcome of the plaintiff's claim.").
As the commissioner argues, see Opposition at 4-6, the subsequent raw medical evidence of record does not, on its face, establish the existence of a medically determinable impairment as of the relevant date. The December 7, 2006, Stillwater notes do not indicate that any diagnosis was made and are unsigned. See Record at 434-37. While the December 2008 St. Joseph Hospital notes contain diagnoses of severe anxiety and OCD traits, they appear to have been provided by a physician's assistant, Julie Quinn, PA-C, see id. at 440-42, a type of practitioner who is not an "acceptable medical source[] to establish whether you have a medically determinable impairment(s)[,]" 20 C.F.R. § 404.1513(a). While, in February 2009, Donna R. Huff, PMH-NP, diagnosed multiple mental health impairments, and her report was cosigned by a physician, see Record at 413-15, an "acceptable medical source" for purposes of establishing the existence of a medically determinable impairment, see 20 C.F.R. § 404.1513(a), Huff did not express any opinion as to the onset of those impairments, see Record at 413-15. And, while these notes indicate that the plaintiff told Huff that he had suffered from depression and anxiety since he was 10 or 11 years old, see id. at 405, the plaintiff's statements, alone, cannot establish a medically determinable impairment, see, e.g., 20 C.F.R. § 404.1508.
The plaintiff points out that he treated with other mental health providers after February 2009; however, he identifies no component of those underlying treatment notes indicating that he had a medically determinable mental health impairment prior to his date last insured. See Statement of Errors at 4.
Although Dr. Weiss indicated, in her March 2013 letter, that the plaintiff's symptoms "seem[ed] to have dated back since before 2005," Record at 482, the administrative law judge's decision to accord that retrospective opinion little weight passes muster.
A treating source's opinion on the nature and severity of a claimant's impairments is entitled to controlling weight if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with the other substantial evidence in [the claimant's] case record[.]" 20 C.F.R. § 404.1527(c)(2).
When a treating source's opinion is not given controlling weight, it is weighed in accordance with enumerated factors. See id.
At oral argument, the plaintiff's counsel complained that the administrative law judge failed to assess Dr. Weiss's opinion based on the totality of relevant factors, including her observation of the plaintiff as of the time she began treating him and whether her opinion was consistent not only with his history by his self-reports but also with available medical records postdating his date last insured.
Nonetheless, the administrative law judge supplied the requisite good reasons for her handling of the opinion, explaining that Dr. Weiss did not begin treating the plaintiff until almost seven years after his alleged onset date of disability, based her statements regarding his condition as of that time on his self-reports made years later, and described no medical signs or laboratory findings prior to his date last insured that would support her opinion. See Record at 18. The latter point was of particular importance in that the onus was on the plaintiff to prove that he suffered from a medically determinable impairment as of his date last insured.
In addition, as the commissioner points out, see Opposition at 9, this court has upheld administrative law judges' rejection of retrospective treating source opinions on similar bases, see, e.g., Coutu v. Colvin, No. 1:13-cv-00317-JAW, 2014 WL 5454527, at *3 (D. Me. Oct. 27, 2014) (upholding decision to accord retrospective treating source opinion little weight when it was "not supported by any clinical observations" and was inconsistent with other evidence, including the opinion of an agency nonexamining consultant that there was no medical evidence establishing the existence of a medically determinable impairment during the period at issue); McGlynn v. Astrue, No. 1:11-cv-395-DBH, 2012 WL 2913535, at *6-*7 (D. Me. June 28, 2012) (rec. dec., aff'd July 17, 2012) (upholding decision to reject retrospective treating source opinion on bases that it was purely speculative because source had not begun treating claimant until 16 months after his alleged onset date of disability and was unsupported by contemporaneous evidence of record).
While the administrative law judge also failed to assess the credibility of the plaintiff's testimony or that of his wife, see Record at 17, that was not error in these circumstances. Such testimony is of no consequence absent the existence of a medically determinable impairment. See, e.g., Coffin, 2010 WL 3952865, at *5 ("[W]here no impairment is found, as is the case here, pain and credibility never become issues."). The plaintiff cites Basinger for the proposition that the failure to assess credibility was error. See Statement of Errors at 5; Basinger, 725 F.2d at 1170 ("Where proof of a disability depends substantially upon subjective evidence, . . . a credibility determination is a critical factor in the [commissioner's] decision."). However, Basinger is again materially distinguishable in that there was no dispute that the claimant had a medically determinable impairment prior to his date last insured. See Basinger, 725 F.2d at 1167.
In sum, the finding that the plaintiff failed to meet his burden of demonstrating that he suffered from a medically determinable impairment prior to his date last insured is supported by substantial evidence.
For the foregoing reasons, the commissioner's decision is
