UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) BRUCE ROTHE, ) ) Plaintiff, ) ) v. ) Civil Action No. 10-0323 (ESH) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) )
MEMORANDUM OPINION
Plaintiff brings this action under the Social Security Act, 42 U.S.C. § 405(g), seeking a
reversal of defendant’s decision to deny disability insurance benefits. In the alternative, plaintiff
seeks a remand to the Social Security Administration (“SSA”) for a new administrative hearing.
The issue presented is whether the administrative law judge (“ALJ”) based his decision to deny
benefits on an adequately developed record that contained substantial evidence to support such a
denial. The Court holds that this finding is based on sufficient and substantial evidence in the
record. Accordingly, defendant’s motion for judgment will be granted and plaintiff’s motion for
judgment will be denied.
BACKGROUND
Plaintiff Bruce Rothe is a 59-year-old man who resides in South Australia. He has two
bachelor’s degrees, two master’s degrees, and a doctorate. (Administrative Record (“AR”) at
124.) He has prior work experience as an architect and a university lecturer. (AR at 89, 116,
119, 127-29.) On September 28, 2004, plaintiff filed applications for disability insurance
benefits alleging that he had been disabled since June 1, 2002, due to multiple chemical sensitivity (“MCS”). (AR at 17, 83-86.) His claims were denied both initially and upon
reconsideration. (AR at 17, 29-32, 36-37.) Thereafter, he received a hearing before an ALJ, who
also denied his claims. (AR at 17-26.) The Appeals Council affirmed the decision, thus
adopting it as the final decision of the agency. (AR at 9-12.)
I. EVIDENCE BEFORE THE ALJ
The evidence before the ALJ consisted of (1) SSA disability and work history reports
completed by plaintiff; (2) medical records from several doctors who had treated plaintiff over a
twelve-year period; (3) records from Australian social service agencies, including Centrelink and
Southern Fleurieu Health Services (“SFHS”), where plaintiff received services; and (4)
plaintiff’s written statement added to the record at the hearing (from which he was absent).
A. Plaintiff’s Disability and Work History Reports
In his disability report filed in May 2004, plaintiff reported that he suffered from MCS
that limited his ability to work because it caused “brain fog, limb collapse, fatigue due to
offactory [sic] and contact with chemicals including print, fragrance, [and] building materials.”
(AR at 118.) Plaintiff reported that he addressed the symptoms by seeing “dozens of doctors
over time” and by changing his profession and activities. (AR at 118, 121.) Plaintiff reported
that his MCS was so severe that he had a reaction to the SSA forms because they were
“offgasing [sic] chemicals causing brain fog, confusion, blurred vision, and failed hand co-
ordination.” (AR at 126.) Plaintiff noted the same issue with the work history report forms also
filed in May 2004. (AR at 134.)
B. Medical Records
Plaintiff’s medical records cover a twelve-year span, including records from his primary
care physicians, a respiratory specialist, an immunologist, an endocrinologist, and emergency
2 hospital visits. In addition, his physicians wrote to the SSA explaining that plaintiff was disabled
because of his condition.
In 1996, Dr. Douglas McEvoy, a respiratory specialist, diagnosed plaintiff with “mild
obstructive sleep apnea” which caused daytime sleepiness that was “objectively not severe, and
[was] probably affecting his functional abilities later in the day to a mild degree only.” (AR at
169-85.) After attempting various interventions to address plaintiff’s sleep apnea, Dr. McEvoy
again concluded that it was not severe and made no plans to see plaintiff again. (AR at 169.) Dr.
Nick Antic, a physician in Dr. McEvoy’s office, saw plaintiff again in August 2003 and reported
that plaintiff’s sleep apnea was still “very mild,” and “given its minimal impact on sleep
architecture[, it was] likely to be less significant in him.” (AR at 217.)
Plaintiff received psychiatric services from 1996 to 1998. (AR at 256-57, 261-63.)
Medical bills indicate that plaintiff saw psychiatrist Dr. Christine Hilton four times between
December 1996 and February 1997. (AR at 257.) Receipts show that plaintiff saw psychiatrist
Dr. D.J. Rampling in March 1997 and received a prescription for Zoloft. (AR at 256.) Letters
show that plaintiff was scheduled to see psychiatrist Dr. Richard Newcombe in July and
September 1998. (AR at 261-63.) No treatment notes, formal diagnoses, or other psychiatric
records appear in the administrative record. (AR at 256-57, 261-63.)
In May 1998, immunologist Dr. Allan Gale treated plaintiff for allergies. (AR at 189.)
Dr. Gale reported that “all skin prick tests for common inhalants and foods were all negative
with normal reactivity to histamines,” making extrinsic allergy an improbable cause of plaintiff’s
problems. (Id.) Dr. Gale saw plaintiff a year later but did not report a change in his diagnosis.
(AR at 187-88.)
3 At the suggestion of Dr. Gale, plaintiff saw endocrinologist Dr. Ian Chapman in mid-
1999. (AR at 191-92.) Tests revealed that plaintiff’s blood sugar levels were normal and that he
had “neither diabetes nor impaired glucose tolerance.” (AR at 191.) Dr. Chapman also
explained to plaintiff that there was “no definite evidence” for insulin resistance, a condition
plaintiff was concerned he might have. (AR at 192.) Finding plaintiff’s condition normal, Dr.
Chapman made no plans to see plaintiff again. (Id.)
In August 2001, plaintiff began seeing immunologist Dr. David Gillis. (AR at 198.) Dr.
Gillis treated plaintiff for vasomotor rhinitis and chronic dry skin but reported that several
aspects of both did not have a “particularly . . . good evidence base,” urging plaintiff to continue
treatment through dietary restrictions. (Id.) On a later visit, Dr. Gillis reported that “there does
not seem to be any conclusive evidence that diet has given rise to problems.” (AR at 197.) In
May 2002, immunologist Dr. Frank Kette reported that plaintiff’s “nasendoscopy, prick skin
testing, and RAST studies” had all been negative and that a surgeon had found a CT scan of
plaintiff’s sinuses did not show any surgical problems except a septal spur. (AR at 215.) The
record includes Dr. Gillis’ and Dr. Kette’s treatment notes from 2002 through 2006. (AR at 200-
10.)
Dr. Bruce Wauchope, plaintiff’s current primary care physician, began seeing him in late
2002. (AR at 234.) Plaintiff saw Dr. Wauchope twelve times between June 1, 2002, and June
30, 2003, the period when plaintiff was qualified to receive SSA disability benefits. (AR at 19,
235-38). Dr. Wauchope’s notes detail plaintiff’s symptoms but also reflect that “[h]e seems to
be obsessive about this; I am not sure if he is imagining this.” (AR at 235-38.) He also notes
that plaintiff was feeling better on several visits throughout 2003. (AR at 237-39.) Dr.
Wauchope’s records include the results of several rounds of blood work conducted throughout
4 2002 and 2003 and physical evaluation charts from December 2002 and January 2003. (AR at
240-55, 258-60.) Plaintiff tested positive for rickettsia and Epstein-Barr; the other tests,
including those for hepatitis A, B, and C, Lyme disease, Ross River virus, and dengue virus,
came back negative. (AR at 240-55.)
Dr. Wauchope wrote two letters to the SSA advocating for plaintiff. The first from 2006
reports that plaintiff has chronic fatigue syndrome (“CFS”) and MCS and has been unable to
work since December 2000. (AR at 166.) The second from 2008 reports that plaintiff suffers
from depression, fibromyalgia, and CFS with chemical sensitivity and that these conditions have
rendered him incapable of work since the time Dr. Wauchope started treating him in 2002. (AR
at 272.) On July 18, 2006, Dr. Gillis also wrote a letter to the SSA on plaintiff’s behalf, writing
that plaintiff suffers from CFS and “chemical sensitivity that is managed by avoidance,” both of
which are so severe “that he was last able to work at the end of 2000.” (AR at 270-71.)
Plaintiff made emergency visits to Royal Adelaide Hospital twice for reasons unrelated to
the conditions he claims cause his disability. (AR at 193-94, 213.) First, plaintiff was treated for
an insect bite to his arm on October 30, 1999. (AR at 193-94.) Second, plaintiff was diagnosed
with acute appendicitis, had an appendectomy on July 13, 2001, and was released from the
hospital a week later. (AR at 213.)
On July 28, 2005, an SSA Office of Disability (“ODO”) physician reviewed the medical
records. (AR at 165.) The physician noted plaintiff’s condition as “generalized tiredness,
lethargy, and fatigue diagnosed as chronic fatigue syndrome” and MCS managed by avoidance
of aggravating agents. (Id.) However, the physician reported that “[t]here are no objective
findings to document the presence of a severe impairment” during the time plaintiff qualified for
benefits. (Id.)
5 C. Australian Social Service Records
Plaintiff receives a Disability Service Pension from Australian agency Centrelink and
living assistance organized by a social worker through Australian agency SFHS. (AR 106-07,
219-33.) Plaintiff submitted several records generated by both agencies.
The Centrelink records include several forms generated during plaintiff’s application
process for assistance from that agency. (AR at 109-16, 147-64.) The first is a Centrelink
Treating Doctor’s Report completed by Dr. Gillis on August 19, 2003. (AR at 157-63.) The
report diagnoses plaintiff with MCS, CFS, and vasomotor rhinitis. (AR at 158, 160.) The form
notes that each condition is “presumptive” rather than “confirmed.” (Id.) The second form is a
Centrelink Medical Assessment Report completed by Dr. Mark Yeager on September 18, 2003.
(AR at 147-56.) Dr. Yeager notes that plaintiff has MCS and CFS, both formally diagnosed in
1998, and lists several symptoms created by those conditions. (AR at 150.) The report also
notes that plaintiff will be able to work no more than seven hours a week for at least two years.
(AR at 151.) Finally, plaintiff includes his Centrelink application form that reflects the same
self-reported medical information plaintiff reported on his SSA disability report. (AR at 109-
16.)
The SFHS records note plaintiff’s history of services with that agency. (AR at 219-33,
273.) An initial assessment report completed on November 10, 2003, notes that plaintiff suffers
from MCS, which “does not follow any injury or illness.” (AR at 224.) SFHS treatment notes
detail the services plaintiff received from SFHS, including counseling from his social worker
Chris Procter, weekly help with laundry, and diet-planning with a dietician. (AR at 227-33.)
Finally, a letter from Procter notes that plaintiff “has supplied documentation that clearly states a
diagnosis of: Depression, Fibromyalgia, Chronic Fatigue Syndrome, and Chemical Sensitivity.”
(AR at 273.)
6 D. Plaintiff’s Written Statement
Plaintiff did not travel from his home in South Australia to the ALJ hearing in Hawaii for
fear that he would be exposed to chemicals that would exacerbate his MCS. (AR at 58, 80, 276.)
At the hearing, plaintiff was represented by Alison St. John, a paralegal/advocate with the Legal
Aid Society of Hawaii. (AR at 80, 276.) In lieu of testimony, St. John submitted a written
statement by plaintiff to the ALJ. (AR at 138-46, 276-77.) In the statement, plaintiff notes that
he suffers from an extreme lack of energy and lethargy but does not mention MCS or any other
medical condition. (AR at 145-46.)
The majority of the statement details the life changes plaintiff has made due to his poor
health. (AR at 138-46.) Plaintiff reports that he quit his job as a full-time architect and moved to
South Australia in hopes that the “pure, remote, arctic air” would help his condition. (AR at
139.) He lectured first at the University of Adelaide and then at the University of South
Australia in hopes that both university’s “chemical-free policies” would help his condition, but
they did not. (Id.)
Plaintiff reports that he currently lives “in a remote area of bushland believed to be
particularly good in air quality” and chemical-free. (AR at 141.) In order to avoid chemical
exposure, his dwelling consists of two ten-foot by ten-foot metal garden sheds that, along with
his mattress and linens, have been “off-gased [sic].” (AR at 141-42.) He has no electricity or
running water and notes that he receives help from SFHS. (AR at 143-44.)
II. THE ALJ’S DECISION
After consideration of the evidence, the ALJ denied benefits. (AR at 17.) The ALJ
found that plaintiff did not have a severe impairment that limited his ability to work during the
time he qualified for benefits from June 1, 2002, to June 30, 2003. (AR at 19.) Although
plaintiff’s conditions could have caused his reported symptoms, the ALJ weighed the medical
7 evidence and found that the severity of plaintiff’s conditions was uncorroborated by objective
medical evidence. (AR at 24.) Without that evidence to buttress the opinion of plaintiff’s
physicians, the ALJ gave more weight to the ODO physician’s assessment that plaintiff did not
have a severe condition that limited his ability to work. (Id.) In the alternative, the ALJ found
that plaintiff was capable of doing his past relevant work. (AR at 25.)
A. Plaintiff’s Medical Conditions
Addressing each condition, the ALJ found “few actual exam findings or objective
medical evidence” to corroborate medical records which mainly reflected plaintiff’s subjective
view of his symptoms. (AR at 22, 24-25.) The ALJ focused on plaintiff’s claimed condition,
MCS, but also addressed plaintiff’s sleep apnea and depression.
1. MCS/CFS
The ALJ found that plaintiff’s MCS and CFS were treated conservatively and neither was
corroborated by actual exams or objective evidence. (AR at 25.) Although various medical
reports noted that plaintiff began suffering from MCS and CFS in 1997 or 1998, no evidence
showed an actual diagnosis of those conditions. (AR at 22, 24-25.) Despite the record reporting
a litany of symptoms associated with the conditions including various allergies, fatigue, and
brain fog, the objective medical evidence did not show that any of those symptoms was severe
enough to significantly limit plaintiff’s ability to function. (AR at 22, 25.)
In order to find a basis for the diagnosis, the ALJ reviewed all of Dr. Wauchope’s
treatment notes for those visits that occurred while plaintiff was qualified for benefits. (AR at
22.) The ALJ attacked the notes for lack of objective medical evidence, saying that they
“primarily recite the claimant’s subjective report of his symptoms.” (Id.) Further, the ALJ noted
that Dr. Wauchope himself expressed doubt about plaintiff’s symptoms by writing, “I’m not sure
if he’s imagining this.” (Id.) Where the record did contain objective medical evidence in the
8 form of the blood tests ordered by Dr. Wauchope, most came back negative. (Id.) For those that
came back positive, including the test for rickettsia (a bacteria), the physician prescribed
medication and did not mention them in subsequent notes. (Id.) Finally, the ALJ noted that Dr.
Wauchope suggested that plaintiff had a disability that qualified him for government assistance
in spite of both the objective medical evidence and the physician’s personal doubt about
plaintiff’s condition. (Id.)
The ALJ dismissed other opinions as conclusory in nature, noting that medical
assessments were reserved for physicians while disability assessments were reserved for the
SSA. (AR at 24.) The ALJ noted that Dr. Gillis’ opinion was unsupported by evidence and that
Dr. Yeager’s Centrelink reports required him to provide little information beyond “checking
boxes.” (Id.) The ALJ disregarded the SFHS paperwork on two grounds: it was non-medical
because it was generated by a social worker and the records postdate the period when plaintiff
qualified for benefits. (AR at 23.)
The ALJ did use objective medical evidence, however, to undermine the diagnosis. In
May 2002, Dr. Kette treated plaintiff and reported that avoidance of allergens helped manage his
symptoms. (AR at 21.) In 2003, Dr. Gillis treated plaintiff and did not report any clinical
findings or evidence to corroborate plaintiff’s symptoms. (AR at 23.) Addressing plaintiff’s
endocrine system as a possible cause of his condition, a series of tests by an endocrinologist in
1999 and 2000 showed that plaintiff’s insulin levels were normal and that plaintiff had no sign of
diabetes. (AR at 21.)
2. Sleep Apnea
The ALJ found that plaintiff’s sleep apnea was not severe enough to impair his ability to
function. (AR at 25.) Summarizing plaintiff’s visits to Dr. McEvoy in 1996 and 1997 and to Dr.
Antic in 2003, the ALJ noted that each doctor found mild problems that resulted in only marginal
9 impairment to plaintiff. (AR at 21-23.) The ALJ also pointed to Dr. Wauchope’s notes from
October 3, 2003, that reported that plaintiff’s sleep was improving. (AR at 23.)
3. Depression
The ALJ found that the record contained no objective evidence that plaintiff was ever
diagnosed with depression. (AR at 25.) The ALJ noted that plaintiff received various
psychiatric services from 1996 to 1998 and a prescription for Zoloft in 1997. (AR at 21.)
However, no evidence existed that plaintiff received treatment or medication for depression
during the time he qualified for benefits between June 2002 and June 2003. (AR at 21, 25.)
B. Past Relevant Work
In the alternative, the ALJ found that plaintiff was capable of activity that was consistent
with his past relevant work as a lecturer. (AR at 25.) The ALJ reasoned that work congruous to
a position as a lecturer would involve minimal exposure to those pollutants that aggravated
plaintiff’s condition. (Id.) Without objective medical evidence proving the degree of plaintiff’s
reaction to environmental factors, the ALJ reasoned that plaintiff had not proven that his
disability would prevent him from working in an occupation with minimal exposure to
pollutants. (Id.)
ANALYSIS
I. STANDARD OF REVIEW
A. Scope of Review
A district court is limited in its review of the SSA’s findings to a determination whether
those findings are based on substantial evidence. 42 U.S.C. § 405(g); Butler v. Barnhart, 353
F.3d 992, 999 (D.C. Cir. 2004); Poulin v. Bowen, 817 F.2d 865, 870 (D.C. Cir. 1987).
Substantial evidence “means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation
10 omitted), requiring “more than a scintilla, but . . . something less than a preponderance of the
evidence.” Fla. Gas Transmission Co. v. FERC, 604 F.3d 636, 645 (D.C. Cir. 2010) (citation
omitted). A court must “carefully scrutinize the entire record” but may not reweigh the evidence
or supplant the SSA’s judgment of the weight of the evidence with its own, only reviewing
whether the ALJ’s findings are based on substantial evidence and whether the ALJ correctly
applied the law. Butler, 353 F.3d at 999; Davis v. Shalala, 862 F. Supp. 1, 4 (D.D.C. 1994);
Davis v. Heckler, 566 F. Supp. 1193, 1195 (D.D.C. 1983). Finally, substantial deference should
be given to the ALJ’s decision, but the evidence should be read in the light most favorable to the
claimant. See Davis v. Shalala, 862 F. Supp. at 4.
B. Legal Framework for Determining Disability
In order to qualify for disability insurance benefits, an individual must prove that he has a
disability that renders him unable “to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment” for a period of “not less than 12
months.” 42 U.S.C. §§ 423(a)(1) & (d)(1)(A). The claimant must support his claim of
impairment with “[o]bjective medical evidence” that is “established by medically acceptable
clinical or laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(5)(A). In addition, the
impairment must be severe enough to prevent the claimant from doing his previous work and
work commensurate with his age, education, and work experience that exists in the national
economy. 42 U.S.C. § 423(d)(2)(A).
The SSA uses a five-step evaluation process to determine whether a claimant is disabled,
thus qualifying for benefits. 20 C.F.R. § 404.1520(a)(1). A clear determination of disability or
non-disability at any step is definitive, and the process ends at that step. 20 C.F.R. §
404.1520(a)(4). In the first step, a claimant is disqualified if he is currently engaged in
“substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). In the second step, a claimant is
11 disqualified if he does not have a “severe medically determinable physical or mental
impairment” that is proven “by medically acceptable clinical and laboratory diagnostic
techniques.” 20 C.F.R. §§ 404.1508 & 404.1520(a)(4)(ii). In the third step, a claimant qualifies
for benefits if his impairment(s) meets or equals an impairment listed in 20 C.F.R. § 404, subpart
P, appendix 1. 20 C.F.R. § 404.1520(a)(4)(iii). Between the third and fourth step, the SSA uses
the entire record to make a determination of the claimant’s residual functional capacity (“RFC”),
which is “the most [the claimant] can still do despite [the] limitations” created by the
impairment. 20 C.F.R. §§ 404.1520(a)(4) & 404.1545(a)(1). In the fourth step, a claimant is
disqualified if his RFC shows that he is still able to do his past relevant work. 20 C.F.R. §
404.1520(a)(4)(iv). In the fifth step, a claimant is disqualified if his RFC shows that he is
capable of adapting to “other work that exists in the national economy.” 20 C.F.R. §§
404.1520(a)(4)(v) & 404.1545(a)(5)(ii). If the claim survives these steps, then the claimant is
determined disabled and qualifies for benefits. 20 C.F.R. § 404.1520(a)(4)(v).
In this case, the ALJ found that plaintiff’s claim failed at Step Two, or, in the alternative,
failed at Step Four. At Step One, the ALJ found that plaintiff was not engaged in substantial
gainful activity during the time he qualified for benefits, thus moving to Step Two. (AR at 19.)
At Step Two, the ALJ found that plaintiff “did not have an impairment or combination of
impairments” that would qualify for disability insurance benefits. (Id.) Although the ALJ found
that plaintiff had a history of CFS, MCS, and sleep apnea, he determined that the objective
medical evidence did not support a finding that any of those conditions was severe. (AR at 19-
25.) The ALJ pointed to a number of medical tests and physician treatment notes that failed to
substantiate the severity of plaintiff’s conditions. (AR at 20-25.) In the alternative, the ALJ
12 found that plaintiff’s claim would have failed at Step Four because the evidence suggested that
plaintiff was capable of his past relevant work as a lecturer. (AR at 25.)
II. REVIEW OF ALJ’S DECISION
Plaintiff raises three challenges to the ALJ’s decision. First, plaintiff contends that the
ALJ failed in his duty to properly develop a complete administrative record that could be used to
conclusively determine whether plaintiff had a disability. (Memorandum in Support of
Plaintiff’s Motion for Judgment of Reversal [“Pl.’s Mem.”] at 3-7.) Specifically, plaintiff argues
that the ALJ had an affirmative duty to contact plaintiff’s doctors because the record was
inadequate to make a determination of disability. (Id. at 4-5.) Second, plaintiff argues that the
ALJ was erroneous in determining that plaintiff did not have a severe disability at Step Two of
the evaluation process because the “severity” requirement is a de minimis standard, the ALJ
under-relied on plaintiff’s physicians, and the ALJ over-relied on the ODO physician. (Id. at 7-
9.) Third, plaintiff claims that the ALJ erroneously determined that plaintiff was capable of
doing his past relevant work at Step Four by failing to make a finding as to either plaintiff’s RFC
or the demands of plaintiff’s past work as a lecturer. (Id. at 10-11.)
A. The ALJ’s Decision was Based on an Adequate Record
“[A]n administrative law judge has the affirmative duty to investigate fully all matters at
issue and to develop the comprehensive record requisite for a fair determination of disability.”
Poulin v. Bowen, 817 F.2d 865, 870 (D.C. Cir. 1987); see also Krishnan v. Barnhart, 328 F.3d
685, 695 (D.C. Cir. 2003); Turner v. Astrue, 710 F. Supp. 2d 95, 108 (D.D.C. 2010); Gurrola v.
Astrue, 706 F. Supp. 2d 78, 85 (D.D.C. 2010). This duty is magnified when the claimant is not
represented by an attorney. Poulin, 817 F.2d at 870. The ALJ has an obligation to develop a
“complete medical history” that contains medical records covering the relevant period of
disability. 20 C.F.R. § 404.1512(d); see also Poulin, 817 F.2d at 870-72, 876 (remanding a
13 claim in part because the ALJ failed to request records for a nineteen-month gap during
claimant’s qualifying period).
This duty compels the ALJ to contact the claimant’s physicians to resolve any conflicts in
the record if resolving the conflict is a necessary condition for deciding the claim. 20 C.F.R. §
404.1512(e); see also Turner, 710 F. Supp. 2d at 108 (“the ALJ need not undertake an additional
investigation where there is no obvious gap or defect in the administrative record” or resolve
conflicts whose resolution is immaterial to the ALJ’s determination); Gurrola, 706 F. Supp. 2d at
86 (noting the duty does not exist “when . . . conflicts between the physician's opinions and other
substantial evidence in the record convince the ALJ that those opinions should not be given
controlling weight”).
Plaintiff contends that the ALJ had an affirmative duty to contact plaintiff’s treating
physicians to obtain additional medical records because “the evidence received from [plaintiff’s]
treating physicians was inadequate to determine whether [he] was disabled.” (Pl.’s Mem. at 4-7.)
Plaintiff further contends that this duty was heightened because he was not represented by
counsel. Plaintiff’s argument fails because the record was adequately developed.
First, the record contains no critical gaps in medical information. For the thirteen-month
period during which plaintiff was qualified for benefits, the record included: (1) Dr. Wauchope’s
treatment notes for twelve visits; (2) the results of twenty-seven blood tests ordered as a result of
those visits; (3) the prescriptions showing what medication plaintiff received as a result of those
visits; (4) nine physical evaluation charts from December 2002 and January 2003 visits; and (5)
Dr. Gillis’ treatment notes for five visits. (AR at 202-07, 234-38, 240-53, 258-60, 264-67.) For
the twelve month periods before and after plaintiff was qualified for benefits, the record
included: (1) Dr. Wauchope’s treatment notes for eight additional visits; (2) the results of five
14 additional blood tests; (3) a letter from Dr. Antic diagnosing plaintiff with minor sleep apnea; (4)
the chart from plaintiff’s appendicitis; (5) Dr. Kette’s assessment of plaintiff’s condition after
plaintiff’s nasendoscopy, prick skin testing, and RAST studies all came back negative; and (6)
Dr. Gillis’ treatment notes for nine additional visits. (AR at 199-210, 213, 215-17, 238-39, 253-
55, 268.)
Second, the record contains enough evidence to make a fair, objective assessment about
plaintiff’s claim. As Part II.B of this Memorandum Opinion explains, the ALJ relied on
objective, medical evidence to affirmatively show that plaintiff’s condition was not medically
severe enough to qualify for disability benefits. Plaintiff argues that the record was “inadequate
to determine whether [plaintiff] was disabled,” (Pl.’s Mem. at 5) but he fails to explain how the
record was deficient, detail the specific evidence that the ALJ should have requested, or show
how any additional evidence would have created a different result. There is a difference between
a record inadequate to determine whether the claimant is disabled and a record that fails to prove
that the claimant is disabled. Plaintiff mistakes the latter for the former and seeks to force the
ALJ to request additional medical information until he finds a disability. The law, however,
allows the ALJ to stop the inquiry before that point if the record is free of crucial gaps and
objective medical evidence disproves the claim. See 20 C.F.R. § 404.1512(e) (compelling the
ALJ to fill gaps in the record if they are critical to deciding the claim); 20 C.F.R. §
404.1520(a)(4) (requiring the five-step evaluation process to end on any step where a
determination of non-disability is made); see also Turner, 710 F. Supp. 2d at 108 (explaining that
the ALJ’s duty to develop the record does not compel the ALJ to seek additional evidence if the
record allows him to make a fair decision).
15 Third, the record as it stands, which contains no critical gaps and an abundance of
objective medical evidence, satisfies any duty by the ALJ to develop the record when a claimant
is not represented by counsel. In addition to not articulating where the record could have been
expanded, plaintiff offers no explanation of what the heightened duty means or how it could have
helped him. (Pl.’s Mem. at 4.)
B. The ALJ’s Determination that Plaintiff was not Severely Disabled is Supported by Substantial Evidence
Plaintiff makes three arguments to prove that the ALJ erred at Step Two. First, plaintiff
argues that the ALJ erroneously rejected the opinions of “every treating and examining health
care provider . . . [who] all . . . concurred that [plaintiff] did in fact suffer from CFS and MCS.”
(Pl.’s Mem. at 9.) Although plaintiff correctly asserts that the ALJ must, at times, give deference
to the claimant’s treating physicians, plaintiff is incorrect both in his assessment of the
conviction behind his physicians’ diagnoses and the degree of deference which the ALJ must
give to his treating physicians.
An ALJ must give deference to the claimant’s treating physician(s) unless the assessment
of that physician(s) is not supported by objective medical evidence or is contradicted by
substantial evidence in the record. 20 C.F.R. 404.1527(d)(2); Poulin, 817 F.2d at 873; Turner,
710 F. Supp. 2d at 105-06. Specifically, contradictions between a physician’s treatment notes
and his assessment of the claimant’s disability can mitigate the deference the ALJ must give the
physician. Turner, 710 F. Supp. 2d at 106. In the present case, the ALJ determined that the
treating physicians were not credible based on substantial evidence. He found that the objective
medical evidence, including numerous blood tests, evaluation charts, allergy tests, sleep apnea
tests, and endocrinology tests, indicated that plaintiff’s condition was not severe. (AR at 21-25.)
He also found that Dr. Wauchope, plaintiff’s primary physician during the period plaintiff
16 qualified for benefits, contradicted his conclusory opinion that plaintiff was disabled by MCS
and CFS with treatment notes including “I’m not sure if he is imagining this” and frequent
references to plaintiff’s improvement. (AR at 22.) Because the ALJ could point to numerous
objective medical records and physician treatment notes that contradicted the physicians’ general
assessment that plaintiff was disabled, the ALJ did not need to accord deference to those
physicians’ opinions.
Second, plaintiff argues that the ALJ erroneously relied on the opinion of the ODO
physician, as opposed to plaintiff’s physicians. (Pl.’s Mem. at 9.) The ALJ’s opinion, however,
suggests otherwise. Whereas the ALJ’s analysis of plaintiff’s medical records and various
physicians occupies nearly five pages in the Administrative Record, the ALJ’s assessment and
analysis of the ODO’s opinion takes up only two sentences. (AR at 21-25.) As the analysis
above shows, the ALJ relied heavily on the objective medical evidence and contradictory
treatment notes provided by plaintiff to reject his claim. Having given an appropriate level of
deference according to the treating physician rule, the ALJ then relied on the ODO physician’s
opinion which coincided with his own that “there were no objective medical findings
documenting the presence of a severe impairment.” (AR at 24.)
Third, plaintiff argues that the severity requirement of the “severe impairment” standard
at Step Two is only a de minimis standard that should not bar plaintiff from recovering benefits.
(AR at 8.) To support this claim, plaintiff cites Social Security Ruling (“SSR”) 85-28, which
states in part: “If an adjudicator is unable to determine clearly the effect of an impairment . . . on
the individual’s ability to do basic work activities, the . . . evaluation process should not end with
the not severe evaluation step.” SSR 85-28, 1985 WL 56856 (1985).
17 Plaintiff fails to prove that the ALJ was unable to determine clearly if plaintiff’s
impairment affected his ability to work, a necessary condition for the severity requirement to
become a de minimis standard. The ALJ was able to rely upon existing objective medical
evidence to determine that plaintiff’s actual, medical symptoms were substantially less severe
than the symptoms plaintiff claimed he was suffering. (AR at 19-25.) This determination by the
ALJ is consistent with the regulations, 20 C.F.R. §§ 404.1508 & 404.1520(a)(4)(ii), and SSR 85-
28, which states, “[a] claim may be denied at step two only if the evidence shows that the
individual’s impairments . . . are not medically severe.” SSR 85-28, 1985 WL 56856 (1985).
C. The ALJ’s Determination that Plaintiff was Capable of Past Relevant Work at Step Four is Superfluous
The five-step evaluation process ends on any step that determinatively proves that the
claimant is not disabled. 20 C.F.R. § 404.1520(a)(4). Accordingly, when the ALJ found that
plaintiff was not disabled at Step Two (AR at 19-25), his inquiry should have stopped there.
Although plaintiff argues that the ALJ’s finding at Step Four is erroneous (Pl.’s Mem. at 10-12),
this Court’s decision to affirm the ALJ’s finding at Step Two makes Step Four unnecessary to
analyze.
CONCLUSION
The ALJ’s determination that plaintiff did not suffer a severe impairment at Step Two of
the evaluation process is supported by substantial, objective medical evidence from an
adequately developed administrative record. The ALJ properly identified the evidence he based
his decision upon and fulfilled his duty to make a decision based upon adequate record evidence.
Whereas the evidence indicated that plaintiff’s impairments were not medically severe, the ALJ
also gave proper weight to the treating physicians’ opinions that plaintiff was disabled.
18 Therefore, the Court will deny plaintiff’s motion for reversal and grant defendant’s motion for
affirmance. A separate order accompanies this Memorandum Opinion.
/s/ ELLEN SEGAL HUVELLE United States District Judge
Date: February 22, 2011