Moriarty v . SSA 07-CV-342-SM 08/28/08 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Daniel Moriarty, Claimant
v. Civil N o . 07-cv-342-SM Opinion N o . 2008 DNH 158
Michael J. Astrue, Commissioner, Social Security Administration, Defendant
O R D E R
Pursuant to 42 U.S.C. § 405(g), Daniel T . Moriarty moves to
reverse the Commissioner’s decision denying his application for
Social Security Disability Insurance Benefits under Title II of
the Social Security Act, 42 U.S.C. § 423 (the “Act”). He says
the Administrative Law Judge (“ALJ”) erred in concluding that he
was not disabled prior to the date on which his insured status
expired. The Commissioner objects and moves for an order
affirming his decision.
For the reasons set forth below, this matter is remanded to
the ALJ for further proceedings. Factual Background
I. Procedural History.
Mr. Moriarty is a veteran of the Vietnam War. He served in
the military from 1968 to 1970. Among other things, he served as
an infantry point man for approximately six months, and was
highly decorated for his military service. Although the precise
onset date of his illness is unclear (and is at the core of this
matter), the record amply demonstrates that he suffers from post-
traumatic stress disorder (“PTSD”) and its chronic symptoms,
including anxiety, depression, nightmares and sleep disturbances,
flashbacks, social isolation, recurrent recollections of
traumatic events, and panic attacks.
For reasons that are neither clear nor material to the
issues presented, claimant did not seek treatment for his illness
until at least 1976, when he says he had an anxiety attack while
living in the State of Washington. The hospital at which he says
he obtained treatment, however, was unable to locate a record of
that treatment. The earliest extant treatment records pertaining
to claimant’s illness are from the Veterans Administration
Hospital in Manchester, New Hampshire, dating to 1981 -
approximately one and one-half years after his insured status
expired. Since 1981, however, records of his medical treatment
2 are substantial, as is evidence supporting the conclusion that he
is currently disabled (though the court need not, and does not,
resolve that issue). For example, the Veterans Administration
recognizes that he suffers from a 100 percent service-related
disability.
In October of 1993, claimant filed an application for
disability insurance benefits under Title II of the Act. An ALJ
denied that application and claimant did not appeal (it is
unclear whether claimant was represented by counsel at the time).
Claimant filed a subsequent application for disability insurance
benefits in 2000, again alleging disability in 1979. That
application was also denied and claimant’s request for a hearing
before an ALJ was denied on grounds of res judicata. For reasons
that are not material to this proceeding, all agree that the
denial of claimant’s request for a hearing constituted error.
On June 2 4 , 2004, claimant filed another application for
disability insurance benefits, alleging that he had been unable
to work since January 1 , 1979, due to PTSD, anxiety, a panic
disorder, and depression. His application was denied. He then
requested, and was granted, a hearing before an ALJ.
Accordingly, on April 4 , 2007, claimant and his attorney appeared
3 before an ALJ, who considered claimant’s application de novo. On
May 1 0 , 2007, the ALJ issued a written decision, finding that
claimant did not suffer from a medically determinable impairment
prior to his date last insured (September 3 0 , 1979).
Consequently, the ALJ concluded that claimant was not disabled,
as that term is defined in the Act, at any time through the
expiration of his insured status.
Claimant sought review of the ALJ’s decision by the Appeals
Council, which denied his request. As a result, the ALJ’s denial
of claimant’s application for benefits became the final decision
of the Commissioner, subject to judicial review. Claimant filed
a timely action in this court, asserting that the ALJ’s decision
was not supported by substantial evidence and seeking a remand to
the ALJ for further proceedings. Claimant then filed a “Motion
for Order Reversing the Decision of the Commissioner” (document
no. 9 ) . In response, the Commissioner filed a “Motion for Order
Affirming the Decision of the Commissioner” (document n o . 1 0 ) .
Those motions are pending.
II. Stipulated Facts.
Pursuant to this court’s Local Rule 9.1(d), the parties have
submitted a statement of stipulated facts which, because it is
4 part of the court’s record (document n o . 1 1 ) , need not be
recounted in this opinion. Those facts relevant to the
disposition of this matter are discussed as appropriate.
Standard of Review
I. Properly Supported Findings by the ALJ are Entitled to Deference.
Pursuant to 42 U.S.C. § 405(g), the court is empowered “to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.” Factual findings of the Commissioner are
conclusive if supported by substantial evidence.1 See 42 U.S.C.
§§ 405(g), 1383(c)(3); Irlanda Ortiz v . Secretary of Health &
Human Services, 955 F.2d 765, 769 (1st Cir. 1991). Moreover,
provided the ALJ’s findings are supported by substantial
evidence, the court must sustain those findings even when there
may also be substantial evidence supporting the contrary
1 Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison C o . v . NLRB, 305 U.S. 1 9 7 , 229 (1938). It is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. Consolo v . Federal Maritime Comm’n., 383 U.S. 6 0 7 , 620 (1966).
5 position. See Tsarelka v . Secretary of Health & Human Services,
842 F.2d 529, 535 (1st Cir. 1988) (“[W]e must uphold the
[Commissioner’s] conclusion, even if the record arguably could
justify a different conclusion, so long as it is supported by
substantial evidence.”). See also Rodriguez v . Secretary of
Health & Human Services, 647 F.2d 2 1 8 , 222-23 (1st Cir. 1981).
In making factual findings, the Commissioner must weigh and
resolve conflicts in the evidence. See Burgos Lopez v . Secretary
of Health & Human Services, 747 F.2d 3 7 , 40 (1st Cir. 1984)
(citing Sitar v . Schweiker, 671 F.2d 1 9 , 22 (1st Cir. 1982)). It
is “the responsibility of the [Commissioner] to determine issues
of credibility and to draw inferences from the record evidence.
Indeed, the resolution of conflicts in the evidence is for the
[Commissioner], not the courts.” Irlanda Ortiz, 955 F.2d at 769
(citation omitted). Accordingly, the court will give deference
to the ALJ’s credibility determinations, particularly where those
determinations are supported by specific findings. See
Frustaglia v . Secretary of Health & Human Services, 829 F.2d 1 9 2 ,
195 (1st Cir. 1987) (citing Da Rosa v . Secretary of Health &
Human Services, 803 F.2d 2 4 , 26 (1st Cir. 1986)).
6 II. The Parties’ Respective Burdens.
An individual seeking Social Security disability benefits is
disabled under the Act if he or she is unable “to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.” 42 U.S.C.
§ 423(d)(1)(A). The Act places a heavy initial burden on the
claimant to establish the existence of a disabling impairment.
See Bowen v . Yuckert, 482 U.S. 1 3 7 , 146-47 (1987); Santiago v .
Secretary of Health & Human Services, 944 F.2d 1 , 5 (1st Cir.
1991). To satisfy that burden, the claimant must prove that his
impairment prevents him from performing his former type of work.
See Gray v . Heckler, 760 F.2d 369, 371 (1st Cir. 1985) (citing
Goodermote v . Secretary of Health & Human Services, 690 F.2d 5 , 7
(1st Cir. 1982)). Nevertheless, the claimant is not required to
establish a doubt-free claim. The initial burden is satisfied by
the usual civil standard: a “preponderance of the evidence.” See
Paone v . Schweiker, 530 F. Supp. 8 0 8 , 810-11 (D. Mass. 1982).
If the claimant has shown an inability to perform his
previous work, the burden shifts to the Commissioner to show that
there are other jobs in the national economy that he can perform.
7 See Vazquez v . Secretary of Health & Human Services, 683 F.2d 1 ,
2 (1st Cir. 1982). See also 20 C.F.R. 1512(g). If the
Commissioner shows the existence of other jobs that the claimant
can perform, then the overall burden to demonstrate disability
remains with the claimant. See Hernandez v . Weinberger, 493 F.2d
1120, 1123 (1st Cir. 1974); Benko v . Schweiker, 551 F. Supp. 6 9 8 ,
701 (D.N.H. 1982).
In assessing a disability claim, the Commissioner considers
both objective and subjective factors, including: (1) objective
medical facts; (2) the claimant’s subjective claims of pain and
disability, as supported by the testimony of the claimant or
other witnesses; and (3) the claimant’s educational background,
age, and work experience. See, e.g., Avery v . Secretary of
Health & Human Services, 797 F.2d 1 9 , 23 (1st Cir. 1986);
Goodermote, 690 F.2d at 6. When determining whether a claimant
is disabled, the ALJ is also required to make the following five
inquiries:
(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 listed impairment;
8 (4) whether the impairment prevents the claimant from performing past relevant work; and
(5) whether the impairment prevents the claimant from doing any other work.
20 C.F.R. § 404.1520. Ultimately, a claimant is disabled only if
his:
physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A).
With those principles in mind, the court reviews claimant’s
motion to reverse and the Commissioner’s motion to affirm his
decision.
Discussion
I. Background - The ALJ’s Findings.
In concluding that M r . Moriarty was not disabled within the
meaning of the Act, the ALJ first determined that he had not been
engaged in substantial gainful employment from his alleged onset
9 date of January 1 , 1979, through his date last insured of
September 3 0 , 1979. Next, the ALJ concluded that “the objective
medical evidence contained in the record does not establish the
existence of a medically determinable impairment through the date
last insured that could have reasonably been expected to produce
the claimant’s symptoms.” Administrative Record (“Admin. Rec.”)
at 19-20. Accordingly, at step two of the five-step sequential
analysis, the ALJ concluded that claimant was not disabled, as
that term is defined in the Act, at any time from his alleged
onset date through his date last insured.
II. Claimant’s Mental Impairments.
On appeal, claimant raises two related issues. First, he
says that, at step two of the sequential analysis, the ALJ
improperly concluded that he does not suffer from a severe mental
impairment. Next, he asserts that the ALJ erred in concluding
that he was not, as of the date on which his insured status
expired (September 3 0 , 1979), disabled as a result of that mental
impairment. The problem presented in this case is this: despite
claimant’s assertion that the symptoms of his PTSD rendered him
disabled as of January, 1979, and despite his recollection that
he was hospitalized as a consequence of those symptoms at least
once in the mid-1970’s, there are no medical records of his
10 having obtained treatment prior to the date on which his insured
status expired. Accordingly, the ALJ concluded:
The undersigned notes that in order for an impairment to be medically determinable it must result from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques. It cannot be determined based only on an individual’s recollections or subjective complaints. Thus, regardless of how genuine the claimant’s complaints may appear to b e , when there are no medical signs or laboratory findings to substantiate the existence of a medically determinable physical or mental impairment that could reasonably be expected to produce the claimant’s symptoms, a finding of not disabled is required at step two of the sequential evaluation process. Such is the case in this instance.
Admin. Rec. at 19 (citations omitted).
In response, claimant says the lack of objective medical
evidence of a mental impairment prior to his date last insured is
not fatal to his application for disability benefits. In support
of that position, claimant says that while objective medical
evidence is necessary to prove that his impairments are, in fact,
disabling, such evidence is not necessary to establish the onset
date of his disability. And, says claimant, the ALJ erred by,
first, failing to determine whether he currently suffers from a
severe mental impairment, and then by failing to determine the
onset date of that impairment.
11 As to the first of those two steps, claimant asserts that
there is ample medical evidence in the record to support his
claim that he is currently disabled by virtue of his PTSD. See
Claimant’s memorandum (document n o . 9-2) at 6 n.4. The court
agrees. For example, as early as 1982, D r . Grimm, a psychologist
on staff with the VA Hospital opined that:
The evidence for a severe anxiety disorder is clear and persuasive. The fact that the [patient’s] premorbid functioning was excellent, that onset of symptoms was precipitous and not associated with any temporally appropriate stressor, and that imperfectly repressed trauma related to the stresses of combat have been recovered through hypnosis all point to a diagnosis of post-traumatic stress disorder, delayed, chronic. Indeed I have seldom seen a case of this disorder which so clearly met diagnostic criteria.
Admin. Rec. at 308. See also Mental Residual Functional Capacity
Questionnaire completed by D r . Perla Kissmeyer, claimant’s
treating psychiatrist at the VA Hospital, Admin. Rec. at 452. If
the opinions offered by D r . Grimm and/or D r . Kissmeyer are
credited, a finding that claimant suffers from a severe
impairment - that i s , PTSD - is all but compelled.2
2 Neither claimant’s stray comment, as reported by a clinical social worker in 1981, that he had been “doing quite well up until December of [1980]” Admin. Rec. at 333, nor the fact that Dr. Kissmeyer opined that his global assessment of functioning was in the 55 to 65 range, substantially undermines the evidence that he is disabled. Those points are well-addressed in claimant’s memoranda and need not be repeated.
12 Moreover, the precedent in this area unmistakably
establishes that step two in the sequential analysis is a “de
minimis screening step,” designed to filter out “groundless
claims” filed by individuals whose impairments have no more than
a minimal effect on their ability to work. McDonald v . Secretary
of Health & Human Services, 795 F.2d 1118, 1124 (1st Cir. 1986).
See also Timmons v . Apfel, 1999 WL 1327393, at *5 (D.N.H. Aug.
1 7 , 1999) (“Although the burden lies with the claimant, he need
only make a de minimis showing to surpass a denial of benefits at
step two. The step-two requirement is merely a threshold,
designed to do no more than screen out groundless claims.”)
(citations and internal punctuation omitted). See generally SSR
85-28 (Nov. 3 0 , 1984) (“Great care should be exercised in
applying the not severe impairment concept. If an adjudicator is
unable to determine clearly the effect of an impairment or
combination of impairments on the individual’s ability to do
basic work activities, the sequential evaluation process should
not end with the not severe evaluation step.”).
Nevertheless, the problem identified by the ALJ remains:
notwithstanding claimant’s assertion that his mental impairments
were disabling on or before September 3 0 , 1979, and despite the
retrospective diagnosis offered by claimant’s treating
13 psychiatrist that he was disabled by reason of his PTSD by 1979
and possibly as early as 1976, see Admin. Rec. at 158 and 449,
there are no medical records or laboratory findings from the
relevant period to support such a finding. Thus, the question
presented by claimant’s appeal is whether the absence of medical
records for the relevant temporal period is necessarily fatal to
his claim. It is not.
As the ALJ correctly noted, objective medical evidence is
necessary to establish the existence of a disabling impairment.
See, e.g., 20 C.F.R. § 404.1508 (“A physical or mental impairment
must be established by medical evidence consisting of signs,
symptoms, and laboratory findings, not only by your statement of
symptoms.”). See also Social Security Ruling (“SSR”) 96-4p, 1996
WL 374187 at *1 (July 2 , 1996) (“No symptom or combination of
symptoms can be the basis for a finding of disability, no matter
how genuine the individual’s complaints may appear to b e , unless
there are medical signs and laboratory findings demonstrating the
existence of a medically determinable physical or mental
impairment.”). Importantly, however, if a claimant is found to
suffer from a disabling impairment, objective medical evidence,
while preferred, is not essential to resolving the onset date of
that disability.
14 Social Security Ruling 83-20, entitled “Titles II and XVI:
Onset of Disability,” makes clear that there are three factors
that must be considered when determining the onset date of a
claimant’s disability: “the applicant’s allegations, work
history, if any, and the medical and other evidence concerning
impairment severity.” SSR 83-20, 1983 WL 31249 at *2 (1983).
Nowhere in the SSR is there any suggestion that the absence of
medical records establishing an onset date is fatal to an
individual’s disability claim. In fact, the SSR provides just
the opposite, specifically noting that in some cases it may be
necessary to infer the onset date of a claimant’s disability from
non-medical evidence.
In some case, it may be possible, based on the medical evidence to reasonably infer that the onset of a disabling impairment(s) occurred some time prior to the date of the first recorded medical examination, e.g., the date the claimant stopped working. How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the administrative law judge (ALJ) should call on the services of a medical advisor when onset must be inferred. If there is information in the file indicating that additional medical evidence concerning onset is available, such evidence should be secured before inferences are made.
If reasonable inferences about the progression of the impairment cannot be made on the basis of the evidence in [the] file and additional relevant medical evidence is not available, it may be necessary to explore other
15 sources of documentation. Information may be obtained from family members, friends, and former employers . . . to furnish additional evidence regarding the course of the individual’s condition.
SSR 83-20, 1983 WL 31249 at * 3 (emphasis supplied).
In light of the foregoing, the ALJ’s observation that “the
medical records establish that he did not complain of symptoms of
mental illness until nearly 2 years after he was last insured,”
Admin. Rec. at 1 9 , while likely correct, is not dispositive of
claimant’s application for disability benefits. The first step
in the inquiry is to determine whether claimant is currently
disabled. If s o , the next step is to determine the onset date of
that disability. And, critically, the absence of medical
evidence prior to the expiration of claimant’s insured status is
not dispositive of his assertion that he suffered from a
disabling mental impairment during that period.
Given the absence of objective medical findings during the
relevant period, prior to rejecting claimant’s application, the
ALJ should have considered (and discussed in his decision) the
other relevant factors that are set forth above (e.g., the
claimant’s allegations; the testimony of friends, family, co-
workers, and former employers about claimant’s condition and its
16 effect on his ability to engage in substantial gainful activity;
and the claimant’s work history). See SSR 83-20, 1983 WL 31249
at *2-3. Additionally, the ALJ probably should have called upon
a medical consultant to assist him in inferring the likely onset
date of claimant’s impairment(s). See Id. at * 3 . See also
Deblois v . Secretary of Health & Human Services, 686 F.2d 7 6 , 81
(1st Cir. 1982) (discussing the ALJ’s obligation to consult
medical experts to determine the onset date of claimant’s war-
related serious mental disorder); Ryan v . Commissioner, 2008 DNH
148, slip o p . at 17 (D.N.H. Aug. 2 1 , 2008) (“Courts agree that
SSR 83-20 ordinarily requires an ALJ to consult a medical advisor
when the ALJ has made a finding of disability but the onset of
the disability must be inferred from ambiguous evidence.”)
(citations omitted); Hurd v . Commissioner, 2008 DNH 0 4 4 , 2008 WL
510148 at *8 (D.N.H. Feb. 2 5 , 2008) (“Determining the onset date
of a disabling impairment is a complex issue that generally
should be made after consulting medical experts.”); Mason v .
Apfel, 2 F. Supp.2d 1 4 2 , 150 (D.Mass. 1998) (“Where, as SSR 83-20
directs, the onset date must be inferred from the medical and
other evidence describing the history and symptomatology of the
disease process, the administrative law judge is required to
retain the assistance of a medical advisor. Without that
assistance, the administrative law judge does not have an
17 adequately developed record upon which to base his decision.”)
(emphasis supplied and citation omitted).
Parenthetically, the court notes that the Commissioner
asserts that “SSR 83-20 does not apply” to this case because a
“condition precedent to the application of SSR 83-20, that
claimant had been found disabled at some later point, does not
exist in this case.” Respondent’s memorandum (document n o . 10-2)
at 1 0 . This court (Barbadoro, J.) has, however, expressly
rejected that proposition, concluding that there i s :
no support for the Commissioner’s position either in the language of SSR 83-20 or in the underlying policies that the ruling was designed to serve. SSR 83-20 straightforwardly states that an ALJ “should call on the services of a medical advisor when onset must be inferred.” It does not authorize ALJs to circumvent the ruling by withholding a finding on present disability and denying the claim based upon a determination that the claimant was not disabled as of her date last insured. In short, there is no support in the text of SSR 83-20 for the Commissioner’s position.
The Commissioner’s interpretation of SSR 83-20 is also inconsistent with the public policy that the ruling was intended to serve. As the ruling notes, an onset date finding will often be determinative of a claim for benefits. Such findings can be extremely difficult to make when a claimant suffers from a progressive impairment such as Huntington’s disease that is not diagnosed until long after the alleged onset date of the claimed disability. This difficulty does not disappear when an ALJ bypasses a determination of present disability and instead denies a DIB claim based
18 on a finding that the claimant was not disabled as of her date last insured. Accordingly, there is no good reason why SSR 83-20 should be limited to cases in which the ALJ makes a determination of disability before addressing the onset date of disability.
Ryan, 2008 D.N.H. 1 4 8 , slip o p . at 18-19. That reasoning applies
with equal force in this case.
Conclusion
Having carefully reviewed the administrative record and the
arguments advanced by both the Commissioner and claimant, the
court concludes that there is not substantial evidence in the
record to support the ALJ’s determination that claimant is not
entitled to disability benefits. The ALJ erred in concluding
that because there is no objective medical evidence prior to
September 3 0 , 1979, to support a medically determinable mental
impairment, he was precluded from finding that claimant was
disabled prior to that date.
In resolving claimant’s application for disability benefits,
the ALJ should first determine whether claimant is presently
disabled. Then, if he concludes that claimant is disabled, he
should determine the onset date of that disability. See, e.g.,
Nelson v . Commissioner of Social Security, 2005 WL 1231500 at *2
19 (D. M e . May 2 4 , 2005) (“The administrative law judge did not
follow this procedure. Rather than determining that the
plaintiff was disabled as of the date of decision and then
proceeding to fix the date of onset, he erroneously assessed
whether, for purposes of SSD, she was disabled as of her DLI.
This was a regrettable error.”).
Finally, the court notes that the lack of objective medical
evidence of a disabling impairment prior to the expiration of
claimant’s insured status does not necessarily doom his claim for
disability benefits. When objective medical evidence is lacking,
the ALJ must evaluate other evidence to infer the onset date of a
claimant’s disability. See generally SSR 83-20. In this case,
such evidence takes the form of claimant’s testimony and the
professional opinions of his treating physicians (at least one of
whom - D r . Kissmeyer - has opined that claimant was totally
disabled by reason of his PTSD prior to September of 1979). And,
as noted above, if the ALJ concludes that claimant is presently
disabled, he should give serious consideration to employing the
services of a qualified medical consultant to assist him in
inferring the date on which the symptoms caused by claimant’s
PTSD likely became disabling.
20 For the foregoing reasons, claimant’s motion to reverse the
decision of the Commissioner (document no. 9) is granted to the
extent it seeks remand to the ALJ for further proceedings. In
all other respects, claimant’s motion is denied. The
Commissioner’s motion to affirm his decision (document no. 10) is
denied. Pursuant to sentence four of 42 U.S.C. § 405(g), this
matter is hereby remanded to the ALJ for further proceedings
consistent with this order. The Clerk of Court shall enter
judgment in accordance with this order and close the case.
SO ORDERED.
Steven J./McAuliffe United States District Judge
August 28, 2008
cc: Raymond J. Kelly, Esq. T. David Plourde, Esq.