Hurd v. SSA CV-07-216-PB 02/25/08
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
CaroleLynn Hurd, a.k.a. CaroleLynn Gabert
Civil N o . 07-cv-216-PB Document N o . 2008 DNH 044__ Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Plaintiff CaroleLynn Hurd moves to reverse the Social
Security Administration’s denial of her claim for disability
insurance benefits (“DIB”) under Title II of the Social Security
Act, 42 U.S.C. § 423. Hurd applied for both DIB and Supplemental
Security Income (“SSI”) in December 2001, alleging disability as
the result of rheumatoid arthritis, fibromyalgia, osteoporosis,
chronic back pain, and acid reflux. In a separate proceeding,
the Commissioner awarded Hurd S S I , finding that she met Listing
of Impairment § 14.09 for inflammatory arthritis as of December
1 , 2001. In the DIB proceeding under review in this case, the
Commissioner denied Hurd’s application, finding that she did not
meet a listing of impairment prior to June 3 0 , 2000, Hurd’s date
last insured for DIB purposes. Hurd now seeks reversal of the Commissioner’s final decision on her application, issued by the
Appeals Council (the “Council”) on June 4 , 2007. The
Commissioner, in turn, moves to affirm. For the reasons that
follow, I grant Hurd’s motion to reverse, deny the Commissioner’s
motion to affirm, and remand this case to the Social Security
Administration for further proceedings.
I. BACKGROUND1
A. Procedural History
Hurd applied for DIB on December 2 1 , 2001, when she was
fifty-three years old, alleging onset of her disability on May 1 5 ,
1999. T r . 108-10. Hurd’s date last insured, for purposes of
calculating DIB, was June 3 0 , 2000. 2
A person is disabled within the meaning of the Social
Security Act if she is unable “to engage in any substantial
gainful activity by reason of any medically determinable physical
1 Unless otherwise noted, the following facts are taken from the Joint Statement of Material Facts (Doc. N o . 11) submitted by the parties. Citations to the Administrative Transcript are indicated as “Tr.”. 2 Under the Social Security Act, in order to be eligible for disability insurance benefits, Hurd must demonstrate that she was disabled on or prior to her date last insured. See 42 U.S.C. § 423(c)
-2- or mental impairment which can be expected to result in death or
has lasted or can be expected to last for a continuous period of
not less than 12 months.” 42 U.S.C. § 416(i)(1)(a). The Social
Security Administration (“SSA”) found that Hurd was not disabled
and initially denied her claim on June 2 6 , 2002. T r . at 83-86.
Hurd requested a hearing by an Administrative Law Judge (“ALJ”);
the hearing was held on January 2 8 , 2003, before ALJ Robert
Klingebiel. T r . at 27-81. Hurd and a Vocational Expert (“VE”),
Cynthia Ward, provided testimony, and Hurd was represented by
counsel. Id.
In a written decision dated April 2 5 , 2003, the ALJ concluded
that Hurd was not disabled. See T r . at 16-26; see also 42 U.S.C.
§ 416(i)(1)(a). Pursuant to 20 C.F.R. § 404.1520, the ALJ used a
five-step process to make this finding, considering: (1) whether
the claimant is engaged in substantial gainful activity; (2)
whether the claimant has a severe impairment; (3) whether the
impairment meets or equals a specific impairment listed in the SSA
regulations and meets the duration requirement; (4) assessment of
residual functioning capacity (“RFC”) and whether the claimant can
still do past relevant work; and (5) assessment of claimant’s RFC,
age, education, and work experience, to see if claimant can make
-3- an adjustment to other work.3 See 20 C.F.R. § 404.1520. I f , at
step three in this analysis, the claimant is found to meet a
“Listing of Impairment” in the social security regulations at 20
C.F.R., Part 4 0 4 , Subpart P, Appendix 1 , the claimant is disabled
and the analysis does not continue. Id.
The ALJ concluded that Hurd had not engaged in substantial
gainful activity after her alleged onset date of May 1 5 , 1999, and
that she had the severe impairment of rheumatoid arthritis. T r .
at 21-22. The ALJ found that Hurd’s impairment did not meet the
criteria of Listing of Impairment § 14.094 because the record did
not support a finding that her impairment resulted in an inability
to ambulate or to perform fine and gross movements effectively, as
3 The claimant has the burden of proof for the first four steps of this process. Freeman v . Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). If the claimant meets her burden of proof at the first four steps, the burden shifts to the Commissioner, who must come forward with evidence of specific jobs in the national economy that the claimant can still perform despite her impairment. Id. 4 In order to meet Listing of Impairment § 14.09 for Inflammatory Arthritis, Hurd would need to show: “History of joint pain, swelling, and tenderness, and signs on current physical examination of joint inflammation or deformity in two or more major joints resulting in inability to ambulate effectively or inability to perform fine and gross movements effectively, as defined in 14.00B6b and 1.00B2b and B2c.” There are other ways for a claimant to meet this listing, but they are not relevant in this case.
-4- required by the listing’s criteria. T r . at 2 2 . Moving on to step
four of the analysis, the ALJ found that Hurd had the residual
functional capacity (“RFC”) to perform a reduced range of light
work, with the ability to lift a maximum of 20 pounds occasionally
and 10 pounds frequently, and with the non-exertional limitations
that she could not reach overhead or perform significant fine
finger activity with her right (dominant) upper extremity. T r . at
24. The ALJ ultimately determined that Hurd was not disabled
because she retained the ability to perform her past relevant work
as an office aide, despite suffering from rheumatoid arthritis.
Tr. at 16-26. The Appeals Council denied Hurd’s request for
review on August 2 5 , 2003. T r . at 7-11.
Hurd then filed for review of the Commissioner’s decision in
this court pursuant to 42 U.S.C. § 405(g). On October 1 , 2004,
Judge DiClerico remanded the case to the SSA because the ALJ
considered only Hurd’s rheumatoid arthritis and failed to
expressly consider all of Hurd’s impairments, which also included
fibromyalgia and fibrositis. Gabert v . Barnhart, Case N o . 03-cv-
406-JD, order dated Oct. 1 , 2004 (reproduced at T r . at 380-82).
The Council vacated the ALJ’s previous decision on November 1 6 ,
2004, and remanded the case for further ALJ review. T r . at 383-
-5- 84. The Council noted that the Commissioner had determined in
Hurd’s SSI proceeding that she was disabled as of December 1 ,
2001. Accordingly, the Council advised the ALJ that he “may wish
to obtain the testimony of a medical expert” to address the issue
of onset of Hurd’s disability prior to December 1 , 2001. Id.
Hurd appeared at a second hearing before ALJ Klingebiel on
April 1 5 , 2005. T r . at 474-516. Hurd and the V E , Cynthia Ward,
again offered testimony before the ALJ, and counsel again
represented Hurd and participated in the hearing. The ALJ had
scheduled a medical expert to appear at the hearing as well, but
he announced at the hearing that he had cancelled the appearance
of the medical expert, stating that he would decide whether to
have the expert’s input into the case depending on what unfolded
at the hearing. T r . at 477-78. In a written decision dated
November 1 8 , 2005, the ALJ again found that Hurd’s impairments,
considered singly and in combination, did not meet a listing of
impairment because she was fully weight-bearing with only moderate
degenerative changes in her right shoulder. T r . at 376. At step
four, the ALJ again found that Hurd retained the RFC to return to
her past relevant work as an office clerk and was therefore not
disabled. T r . at 370-79.
-6- Hurd sought review of the ALJ’s decision before the Appeals
Council. The Council accepted the case for review and issued its
decision on June 4 , 2007. T r . at 359-66; 466-67. The Council
agreed with the ALJ’s findings at steps one, two, and three of the
disability analysis. T r . at 363. With respect to the ALJ’s
determination that Hurd did not meet the requirements for any
listed impairment, the Council noted that the Commissioner had
previously determined in the SSI proceeding that Hurd suffered
from a listed impairment as of December 1 , 2001. Further,
although the Council appeared to disagree with the Commissioner’s
decision on this point, it recognized that the decision was final
because the time for challenging it had passed. Nevertheless, the
Council left intact the ALJ’s determination that Hurd did not meet
the requirements established for any listed impairment as of June
3 0 , 2000, her date last insured for purposes of DIB. The Council
also agreed with the ALJ’s determination of Hurd’s RFC, but found
at step four that Hurd’s previous job as an office aide did not
qualify as “past relevant work.” T r . at 364. The Council
nevertheless denied Hurd’s application because it found at step
five that there were a significant number of jobs in the national
economy that Hurd could perform, given her RFC. Id. This June 4 ,
-7- 2007 decision of the Appeals Council is the Commissioner’s final
decision on this case, subject to review in this court pursuant to
42 U.S.C. § 405(g)
B. Medical History
Hurd was 52 years old when her insured status expired on June
3 0 , 2000. T r . at 3 6 . She is a high school graduate and attended
one year of college that led to a secretarial certificate. Id.
She has worked in a variety of jobs, including as an office
assistant, assembler of electronic products, data entry worker,
assembler of medical products, and greenhouse worker. T r . at 3 8 ,
4 1 , 4 5 , 5 1 . The administrative record in this case contains
detailed medical records from 1989 to 2004.
1. Records Prior to Alleged Onset Date (prior to May 15, 1999)
In 1989, Hurd saw D r . Stromquist several times for persistent
muscle pain in her back, but the doctor made no definite diagnosis
beyond a finding of mild scoliosis and possible fusion at one
joint. T r . at 2 9 0 , 2 9 2 , 294. The doctor noted that the pain
could be from fibrositis, but he found no tender points to confirm
this. T r . at 291. The doctor prescribed physical therapy and
Motrin for pain. T r . at 291. In June 1989, D r . Stromquist noted
that Hurd was feeling better and had been active doing camping,
-8- hiking, and fishing. T r . at 293.
In July 1989, Hurd saw D r . Sole for another opinion regarding
her back. D r . Sole noted that the x-rays showed no evidence of
degenerative joint disease but did show mild scoliosis. T r . at
294-95. She noted that Hurd reported more pain on her right side
than her left, as well as pain radiating into her right shoulder.
Tr. at 294. D r . Sole prescribed Naprosyn and gave Hurd a heel pad
to offset the discrepancy between the lengths of her legs. T r . at
295. In August 1989, D r . Sole noted tenderness in Hurd’s right
shoulder area and diagnosed possible synovitis of the right SI
joint with no true arthritis. T r . at 296. D r . Sole noted
improvements in September and October 1989 and continued to
prescribe Naprosyn and physical therapy. T r . at 298.
In August 1993, Hurd saw her primary care physician, D r .
Degnan, reporting a one-year history of intermittent joint
swelling and discomfort in her shoulders, elbows, wrists, knees
and ankles. T r . at 173. D r . Degnan made a presumptive diagnosis
of rheumatoid arthritis based on a positive rheumatoid factor
titer “despite minimal evidence of joint swelling or deformity.”
Tr. at 175. Hurd began taking Toradol tablets for pain. Id.
-9- Hurd saw D r . Passas, a rheumatologist, in October 1993. T r .
at 196. Hurd reported swelling in her ankles, knees, and feet,
and pain in her hips, elbows, shoulders, and hands. T r . at 198.
Dr. Passas diagnosed rheumatoid arthritis, fibrositis, active
synovitis of mild degree in the hands, and mild scoliosis. T r . at
197. D r . Passas concluded that the rheumatoid arthritis diagnosis
did not fully explain Hurd’s complaints of skeletal pain, noting
stress and fibrositis as contributing factors. Id. D r . Passas
prescribed Elavil, Plaquenil, and physical therapy. Id.
Hurd returned to D r . Passas in November 1993, reporting
feeling a little better overall but having difficulty affording
her medication. T r . at 202. The doctor again diagnosed
fibrositis and rheumatoid arthritis and prescribed Plaquenil,
Naprosyn, and Elavil. Id. In January 1993, D r . Passas reported
that, clinically, Hurd appeared at least 50% better. T r . at 203.
Hurd saw D r . Degnan in April 1994 and reported stress, knee
pain, insomnia, acid reflux, and depression. T r . at 181. The
doctor diagnosed rheumatoid arthritis, depression, probable
patellofemoral syndrome, and possible mild acid reflux. Id.
On April 2 0 , 1994, D r . Passas wrote to D r . Degnan that Hurd
showed no signs of synovitis and stated that Hurd may never have
-10- shown clear-cut signs of synovitis despite the mildly positive
rheumatoid factor. T r . at 205. D r . Passas noted that the only
consistent findings regarding Hurd were stress, insomnia, and
“profound, constant musculoskeletal complaints whose only findings
objectively are compatible with fibrositis with multiple trigger
and tender points.” Id. D r . Passas scheduled no follow-up
appointments, discontinued Plaquenil, and stated that Hurd “is
going to have to become more actively involved in attempts to
extricate herself from the profound stress, and begin more
actively to seek some appropriate therapy.” Id.
In June 1994, Hurd saw D r . Degnan and reported that aquatic
physical therapy was working, but that getting in and out of the
pool was difficult and that she was afraid of water and unable to
relax. T r . at 184. Hurd returned to D r . Degnan in September 1994
for review of her arthritic joints, particularly focusing on pain
in her left wrist and swelling in her knees and ankles. T r . at
184. D r . Degnan diagnosed depression, rheumatoid arthritis,
fibrositis, and chronic pain, and urged Hurd to continue taking
Zoloft for depression. T r . at 185.
Hurd saw D r . Degnan again in February 1995. T r . at 186. She
reported continuing diffuse musculoskeletal pain and difficulty
-11- staying on her medications because of financial problems. Id.
Dr. Degnan observed no obvious joint deformity or swelling, but he
did observe muscular tightness with palpable trigger points and
spasm. Id. He diagnosed fibromyalgia/fibrositis, stress,
anxiety, depression, and urticaria (hives). Id. Hurd contacted
Dr. Degnan’s office in April, August, and November 1995 about her
various medications. T r . at 187.
Dr. Degnan saw Hurd again in May 1997. T r . at 188. He noted
that she had been without medication for many months, and that she
reported chronic discomfort in her head, neck, shoulders, arms,
and hands, as well as heartburn and insomnia. Id. D r . Degnan
diagnosed Hurd with fibrositis, fibromyalgia, and possible
rheumatoid arthritis. Id. He recommended that Hurd restart
taking her medications Oruvail and Zoloft, he and gave her some
samples of Prilosec. Id.
In July 1997, Hurd consulted her doctor’s office reporting
muscle spasms in her back. T r . at 190. Hurd reported to the
examiner that she had a long history of back problems, although
the examiner noted that he couldn’t find anything specifically
wrong with her back. Id. The examiner prescribed a muscle
relaxant and recommended considering physical therapy. Id.
-12- Hurd saw D r . Degnan in January 1998; at that visit he noted
mild hypertrophy in her finger joints and tenderness in her
wrists, knees, and ankles. T r . at 192. He diagnosed fibrositis,
rheumatoid arthritis, and dysthymia. Id.
2. Records From Alleged Onset Date to Date Last Insured (May 15, 1999 - June 3 0 , 2000)
In 1999, Hurd began to see D r . Walczak as her primary care
physician. In August 1999, D r . Walczak noted a history of
rheumatoid arthritis, fibromyalgia, depression, and acid reflux.
Tr. at 218. Hurd reported generalized pain, especially joint
pain, and occasional ankle swelling. T r . at 219. D r . Walczak
observed no obvious swelling or deformity of joints, but he noted
a significant decreased range of motion in the right shoulder.
Id.
Hurd returned to D r . Walczak in February 2000 for complaints
of shoulder pain. T r . at 223. The doctor noted that Hurd’s right
shoulder was tender to palpation and that her range of motion was
reduced such that she “can barely elevate the right arm.” Id. He
ordered x-rays, which showed diffuse osteoporosis and a
questionable deformity of the humeral head that suggested chronic
dislocation and possible narrowing of the shoulder joint, but no
other abnormalities. T r . at 225.
-13- Hurd saw D r . Piscopo, an orthopedist, in May 2000 reporting
pain and stiffness in her right shoulder area. T r . at 232. X-
rays showed moderate degenerative arthritis in her right shoulder,
and D r . Piscopo noted a reduced range of motion in Hurd’s right
shoulder. Id. He advised Hurd of treatment options, including
cortisone or Hyalgan injections, physical therapy, subacromial
decompression, or possible joint replacement. T r . at 233.
3. Records After Date Last Insured (June 3 0 , 2000 - November 2004)
In October 2000, Hurd was involved in a car accident and went
to the emergency room reporting neck and back pain. T r . at 236-
40. Cervical x-rays showed no fracture, dislocation, or bony
destruction. T r . at 241.
Hurd saw D r . Walczak for a follow-up later in October 2000.
Tr. at 226. The doctor made no notations of joint pain, but he
did diagnose Hurd with hives, dyschiria, acid reflux, and anemia.
Id. Hurd saw D r . Walczak in April 2001 reporting joint pain from
rheumatoid arthritis and fibromyalgia, and some shortness of
breath and chest pain during physical activity. T r . at 227.
In November 2001, Hurd began seeing D r . Yost, a
rheumatologist. T r . at 250. Hurd’s chief complaint was painful
limitation in motion of her right shoulder, and she also reported
-14- stiffness in her joints and weight-bearing pain in her knees and
feet. Id. D r . Yost diagnosed symmetric inflammatory
polyarthritis with advanced synovitis in the wrists and no subtle
changes at the feet, hands, and ankles. T r . at 251. The doctor
noted that Hurd had limited motion in her right shoulder with
radiographic rheumatoid erosion. Id. He prescribed methotrexate.
From 2002 to 2004, Hurd continued to see D r . Yost for her
rheumatoid arthritis and fibromyalgia and D r . Walczak for routine
physicals, follow-ups, and other health problems including
headaches, allergies, acid reflux, depression, hemorrhoids, and
anemia. See T r . at 2 5 4 , 301-07, 318-19, 333, 433-38, 441-43, and
459-60.
`In December 2002, Hurd was examined by D r . Windier, who
filled out a form on her behalf in connection with a Medicaid
application. T r . at 322-23. D r . Windier observed that Hurd had a
severely reduced range of motion in her right shoulder and wrists,
a moderately reduced range of motion in her hips, and slight to
moderate decreased flexion in her knees, with weak grips and
tenderness in her elbows and fingers. Id. He also noted problems
with mood swings, acid reflux, and allergies. Id.
-15- From 2002 to 2004, D r . Yost noted that Hurd showed
improvement in her joint swelling and stiffness when she was
taking the appropriate medications, but that, due to financial
considerations, Hurd did not always take the prescribed
medications at their recommended dosage. See, e.g., T r . at 301.
Dr. Yost’s medical records show that he worked with Hurd to help
her obtain the appropriate treatment, switching her medication
from pill form to injection form at one point (Tr. at 307) and
helping her obtain medication through a needy assistance program
(Tr. at 3 0 1 ) . The records consistently demonstrate that Hurd’s
symptoms improved when she was able to take all prescribed
medications and worsened when she had trouble obtaining her
medications. See T r . at 303, 433, 436.
4. Assessments and Reports in Connection with DIB Application
Hurd applied for disability insurance benefits in December
2001. T r . at 108-10. She submitted an “Activities of Daily
Living” report in January 2002. T r . at 137-42. In this report,
she described problems sleeping due to pain and difficulties using
her right arm and putting weight on her wrists. T r . at 137. She
described difficulty concentrating and pain from standing or
sitting for too long due to stiffening of joints. T r . at 139.
-16- Despite these limitations, Hurd reported that she was able to do
some household chores, drive occasionally, and do simple cooking
and shopping tasks. T r . at 137-38.
On June 1 3 , 2002, D r . Hugh Fairley conducted a full review of
Hurd’s medical records in order to complete a physical RFC
assessment. T r . at 261-68. D r . Fairley concluded that during the
relevant period of time (May 1999 through June 2000), there was no
evidence of active synovitis or joint deformity except in Hurd’s
right shoulder. T r . at 268. Despite this significant impairment,
he concluded that Hurd retained the capacity to do light work with
restrictions of lifting no more than 20 pounds occasionally, no
more than 10 pounds frequently, and avoiding any right upper
extremity above-shoulder-level reaching. Id. Because the
Activities of Daily Living report completed by Hurd was done in
January 2002, Fairley concluded that it was not relevant to his
conclusion because the focus, for DIB purposes, was on the time
period from May 1999 to June 2000. T r . at 267.
On June 2 6 , 2002, at the request of the New Hampshire
Department of Health and Human Services, Rachel Heath, a Physical
Therapist at Concord Hospital, conducted a Functional Capacity
Evaluation of Hurd. T r . at 271-89. This evaluation involved
-17- extensive in-person testing and examination of Hurd and it tested
her grip strength, fitness, lifting abilities, material handling
abilities, and physical effort. Id. It also tested Hurd’s
subjective understanding of her own tolerances and measured her
self-perception of her own limitations. T r . at 286-88. Heath
concluded that Hurd provided near full physical effort during
testing and that it would be safest to place Hurd in a light
capacity part-time job, four hours per day and five days per week.
Tr. at 273. Heath recommended positional changes every 30
minutes, avoidance of repetitive motions with the left wrist and
the right shoulder, avoidance of bending beyond half range, and
frequent rest periods. Id. She noted that Hurd’s subjective
understanding of her limitations “matches poorly with actual
tolerances.” Id. For example, Hurd thought that she could lift a
maximum of five pounds occasionally, while testing demonstrated
that she could lift twenty pounds occasionally. Id.
In August 2002, D r . Yost filled out an Arthritis RFC
Questionnaire on Hurd’s behalf. T r . at 256. He opined that
Hurd’s pain would constantly interfere with her attention and
concentration, that Hurd had a severe limitation in her ability to
deal with work stress, that she could walk less than one-half of a
-18- city block without rest or severe pain, and that Hurd could sit
for a maximum of one hour at a time and stand for a maximum of 20
minutes at a time during an average workday. T r . at 256-58. Dr.
Yost wrote that, in a normal work day, Hurd could stand or walk
for a total of less than two hours per day and sit for about four
hours per day, with the need to shift positions at will and take
unscheduled breaks during the day. T r . at 258-59. He also opined
that she could occasionally lift less than 10 pounds and could
never lift more than 20 pounds, with significant limitations as to
repetitive reaching, handling, or fingering, such that she could
only engage in those activities for 10-20% of the day. T r . at
259.
II. STANDARD OF REVIEW
I am authorized pursuant to 42 U.S.C. § 405(g) to review the
pleadings submitted by the parties and the transcript of the
administrative record and enter a judgment affirming, modifying,
or reversing the Commissioner’s final decision. My review is
limited to whether the Commissioner (through the ALJ and the
Council) applied the proper legal standards and found facts based
upon the proper quantum of evidence. Ward v . Comm’r of Soc. Sec.,
-19- 211 F.3d 6 5 2 , 655 (1st Cir. 2000); Nguyen v . Chater, 172 F.3d 3 1 ,
35 (1st Cir. 1999)
The Commissioner’s findings of fact are accorded deference as
long as they are supported by substantial evidence. Ward, 211
F.3d at 655. I must uphold these factual findings “if a
reasonable mind, reviewing the evidence in the record as a whole,
could accept it as adequate to support his conclusion.” Ortiz v .
Sec’y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991)
(quoting Rodriguez v . Sec’y of Health & Human Servs., 647 F.2d
218, 222 (1st Cir. 1981)). The Commissioner’s factual findings
are conclusive if there is substantial evidence to support his or
her decision, even if the record “arguably could support a
different conclusion.” Id. at 770. The findings are not
conclusive, however, when they are derived by “ignoring evidence,
misapplying the law, or judging matters entrusted to experts.”
Nguyen, 172 F.3d at 35
The Commissioner is responsible for determining issues of
credibility and for drawing inferences from evidence on the
record. Ortiz, 955 F.2d at 769. It is the role of the
Commissioner, not the role of this court, to resolve conflicts in
the evidence. Id.
-20- III. ANALYSIS
Hurd raises several arguments in support her motion for
reversal. I need not address each of her arguments, however,
because I find that the ALJ’s failure to call a medical expert at
Hurd’s second administrative hearing on April 1 5 , 2005, and the
Council’s misplaced reliance on the VE’s testimony from Hurd’s
first administrative hearing in its June 4 , 2007 order each
independently constitute error requiring remand.
In Hurd’s separate SSI proceeding, the Commissioner found
that Hurd was disabled as of December 1 , 2001, because she met the
requirements of Listing of Impairment § 14.09, which covers
inflammatory arthritis. This determination is binding on the
Commissioner in this proceeding. See 20 C.F.R. § 404.950(f) 5
5 Section 404.950(f) authorizes an ALJ to refuse to accept a factual finding from a prior proceeding conducted under a different title where “there are reasons to believe that it was wrong.” Although the Council apparently did not agree with the prior determination in the SSI proceeding that Hurd met the requirements for a listed impairment as of December 1 , 2001, it noted that the determination was final in the SSI proceeding and it did not cite § 404.950(f) in its analysis. Moreover, the Commissioner does not invoke § 404.950(f) in its brief before this court. Accordingly, I do not consider whether § 404.950(f) entitled the Council to disregard the Commissioner’s determination in the SSI proceeding that Hurd met the requirements for a listed impairment as of December 1 , 2001.
-21- Thus, the principal issue in this case is whether the onset date
of Hurd’s recognized disability was before or after June 3 0 , 2000,
Hurd’s date last insured. If she only became disabled after June
3 0 , 2000, she is not eligible for DIB. If she was disabled prior
to June 3 0 , 2000, she is eligible for DIB.
Determining the onset date of a disabling impairment is a
complex issue that generally should be made after consulting
medical experts. Social Security ruling 83-20 provides that “At
the hearing, the administrative law judge (ALJ) should call on the
services of a medical advisor when onset must be inferred.” SSR
83-20. The Council, when it originally remanded Hurd’s case for a
second administrative hearing, recognized that the ALJ may wish to
consult an expert to address the issue of Hurd’s onset date. Tr.
at 383. Although neither the regulations nor the Council
explicitly directed the ALJ to consult a medical expert, the
circumstances of the case required him to obtain expert advice.
This case involves a chronic inflammatory disease that progresses
over time, and the evidence in the medical record is equivocal on
the issue of Hurd’s onset date. Therefore, the ALJ should have
consulted a medical expert at Hurd’s second administrative
hearing. See, e.g., Karlix v . Barnhart, 457 F.3d 7 4 2 , 747 (8th
-22- Cir. 2006); Armstrong v . Comm’r of the Soc. Sec. Admin., 160 F.3d
587, 589 (9th Cir. 1998)
The Commissioner’s decision is also subject to reversal on
the alternative ground that the Council mistakenly based its step
five determination on testimony provided by a VE at Hurd’s first
administrative hearing. In its opinion, the Council stated that
Hurd could perform the jobs of information clerk, receptionist,
file clerk, return item clerk, or hand packager (such as work as a
packing line worker or dental floss packer). T r . at 365. These
jobs were examples provided by the VE at Hurd’s first
administrative hearing, and the VE’s testimony regarding these
jobs is not reliable because the VE named the listed jobs at
Hurd’s first hearing in response to a hypothetical that did not
accurately reflect Hurd’s limitations. See T r . at 71-75; see
Arocho v . Sec. of Health and Human Servs., 670 F.2d 3 7 4 , 375 (1st
Cir. 1982) (holding that for a VE’s testimony to be reliable, the
hypothetical questions given to the VE must “correspond to
conclusions that are supported by the outputs from the medical
authorities.”). When the hypothetical was modified at the second
hearing to more accurately reflect Hurd’s RFC, the VE’s response
differed materially from his response at the first hearing. Under
-23- these circumstances, the Council erred in basing its step five
determination on testimony supplied by the VE at the first
hearing.
IV. CONCLUSION
For the reasons discussed above, I grant Plaintiff’s motion
to reverse (Doc. N o . 8 ) , deny the Commissioner’s motion to affirm
(Doc. N o . 1 0 ) , and remand this case to the Social Security
Administration.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
February 2 5 , 2008
cc: Raymond Kelly, Esq. Robert Rabuck, AUSA
-24-