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,

(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.

(g); Butler v. Barnhart,

(D.C. Cir. 2004); Poulin v. Bowen,

(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,

(1971) (citation

10 omitted), requiring “more than a scintilla, but . . . something less than a preponderance of the

evidence.” Fla. Gas Transmission Co. v. FERC,

(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,

; Davis v. Shalala,

(D.D.C. 1994);

Davis v. Heckler,

(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,

.

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.”

(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.”

(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.

(d)(2)(A).

The SSA uses a five-step evaluation process to determine whether a claimant is disabled,

thus qualifying for benefits.

(a)(1). A clear determination of disability or

non-disability at any step is definitive, and the process ends at that step.

(a)(4). In the first step, a claimant is disqualified if he is currently engaged in

“substantial gainful activity.”

(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.”

& 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

, subpart

P, appendix 1.

(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.

(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.

(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.”

(a)(4)(v) & 404.1545(a)(5)(ii). If the claim survives these steps, then the claimant is

determined disabled and qualifies for benefits.

(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,

(D.C. Cir. 1987); see also Krishnan v. Barnhart,

(D.C. Cir. 2003); Turner v. Astrue,

(D.D.C. 2010); Gurrola v.

Astrue,

(D.D.C. 2010). This duty is magnified when the claimant is not

represented by an attorney. Poulin,

. The ALJ has an obligation to develop a

“complete medical history” that contains medical records covering the relevant period of

disability.

(d); see also Poulin,

(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.

(e); see also Turner,

(“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,

(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

(e) (compelling the

ALJ to fill gaps in the record if they are critical to deciding the claim);

(a)(4) (requiring the five-step evaluation process to end on any step where a

determination of non-disability is made); see also Turner,

(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,

; Turner,

. 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,

. 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).

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,

& 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).

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.

(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

19