Pierson v . SSA 05-CV-276-SM 04/28/06 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Lori L . Pierson, Claimant
v. Civil N o . 05-cv-276-SM Opinion N o . 2006 DNH 052
Jo Anne B . Barnhart, Commissioner, Social Security Administration Defendant
O R D E R
Pursuant to 42 U.S.C. § 405(g), claimant, Lori L . Pierson,
moves to reverse the Commissioner’s decision denying her
application for Social Security Disability Insurance Benefits
under Title II of the Social Security Act, 42 U.S.C. § 423 (the
“Act”). She says the Administrative Law Judge (“ALJ”) erred in
concluding that she was not disabled prior to the date on which
her insured status expired. Defendant objects and moves for an
order affirming the decision of the Commissioner. For the
reasons set forth below, this matter is remanded to the ALJ for
further proceedings. Factual Background
I. Procedural History.
Claimant’s disability insured status expired on December 3 1 ,
1995. Nearly eight years later, on October 1 7 , 2003, she filed
an application for disability insurance benefits under Title II
of the Act, alleging that she had been unable to work since
November 2 4 , 1992, due to a combination of chronic neck, back,
and shoulder pain, anxiety, depression, Fibromyalgia, asthma, and
gastrointestinal problems. Administrative Record (“Admin. Rec.”)
at 1 5 , 4 6 , 53-54. See also Admin. Rec. at 231-34. Her
application was denied. She then requested an administrative
hearing to review that denial.
On October 8 , 2004, claimant, her attorney, and her husband
appeared before an Administrative Law Judge, who considered
claimant’s application de novo. On April 2 3 , 2005, the ALJ
issued his order, concluding that claimant retained the residual
functional capacity to “lift and/or carry up to twenty pounds
occasionally and ten pounds frequently. She is able to sit for
up to six hours in an eight-hour day with normal breaks. She is
able to stand and/or walk for up to six hours in an eight-hour
day with normal breaks.” Admin. Rec. at 1 9 . Accordingly, he
2 concluded that claimant “was not under a ‘disability’ as defined
in the Social Security Act, at any time through the date of [his]
decision.” Id.
Claimant then sought review of the ALJ’s decision by the
Appeals Council. On July 5 , 2005, however, the Appeals Council
denied her request, thereby rendering the ALJ’s decision a final
decision of the Commissioner, subject to judicial review. On
August 2 , 2005, claimant filed an action in this court, asserting
that the ALJ’s decision was not supported by substantial evidence
and seeking a judicial determination that, prior to the
expiration of her insured status, she was disabled within the
meaning of the Act. Claimant then filed a “Motion for Order
Reversing Decision of the Commissioner” (document n o . 8 ) . The
Commissioner objected and filed a “Motion for Order Affirming the
Decision of the Commissioner” (document n o . 9 ) . 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
part of the court’s record (document n o . 1 0 ) , need not be
3 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. 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). 1 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 adverse position.
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).
4 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)).
5 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 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 her
impairment prevents her from performing her 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).
In assessing a disability claim, the Commissioner considers
both objective and subjective factors, including: (1) objective
6 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. Provided the claimant has shown an
inability to perform her previous work, the burden shifts to the
Commissioner to show that there are other jobs in the national
economy that she can perform. See Vazquez v . Secretary of Health
& Human Services, 683 F.2d 1 , 2 (1st Cir. 1982). 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).
When determining whether a claimant is disabled, the ALJ is
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;
7 (3) whether the impairment meets or equals a listed impairment;
(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
her:
physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] 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 [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] 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 her
decision.
8 Discussion
I. Background - The ALJ’s Findings.
In concluding that M s . Pierson was not disabled within the
meaning of the Act, the ALJ properly employed the mandatory five-
step sequential evaluation process described in 20 C.F.R.
§ 404.1520. Accordingly, he first determined that claimant had
not been engaged in substantial gainful employment since her
alleged onset date of November 2 4 , 1992. Next, he concluded that
claimant did not suffer from any medically determinable mental
impairment. Admin. Rec. at 1 5 . The ALJ did, however, determine
that, during the time period relevant to his decision, claimant
suffered from recurrent sinus infections and neck strain, both of
which he characterized as “severe,” within the meaning of the
pertinent regulations. Nevertheless, the ALJ concluded that
those impairments did not meet or medically equal one of the
impairments listed in Part 4 0 4 , Subpart P, Appendix 1 . Admin.
Rec. at 1 5 .
The ALJ next concluded that, as of December 3 1 , 1995,
claimant retained the residual functional capacity (“RFC”) to
9 perform the exertional demands of light work.2 In light of that
RFC, the ALJ concluded that claimant could perform her past
relevant work as a photo lab technician, a fast food worker, a
cashier, and a clerk, as those jobs are performed in the national
economy. Admin. Rec. at 1 8 . Consequently, the ALJ determined
that claimant was not “disabled,” as that term is defined in the
Act, when her insured status expired (or through the date of his
decision).
II. Claimant’s Mental Impairments.
On appeal, claimant raises two related issues. First, she
asserts that the ALJ failed to properly take into account her
alleged mental impairments. Next, she claims the ALJ erred in
concluding that she was not, as of the date on which her insured
2 “RFC is what an individual can still do despite his or her functional limitations. RFC is an administrative assessment of the extent to which an individual’s medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities. Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual’s abilities on that basis.” Social Security Ruling (“SSR”), 96-8p, Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims, 1996 WL 374184 at *2 (July 2 , 1996) (citation omitted).
10 status expired (December 3 1 , 1995), disabled as a result of those
mental impairments and/or a combination of those mental
impairments and her physical impairments.
The problem presented in this case is this: perhaps because
she did not have health insurance until approximately 1997,
claimant’s medical records prior to December 3 1 , 1995, are, at
best, sparse. And, those medical records that do exist from the
relevant period of time provide little support for claimant’s
alleged mental impairments. Accordingly, the ALJ concluded:
During the time period relevant to this decision, the claimant and her representative have submitted no progress notes, treating notes, [records of] hospitalization, or diagnostic testing from a treating or examining physician prior to her date last insured to show treatment for any mental impairment. While the medical evidence of record contains clinical signs and findings regarding the claimant’s current ability to perform work related functions, there is no objective medical evidence prior to December 3 1 , 1995 to support a medically determinable mental impairment.
Admin. Rec. at 15 (emphasis supplied).
In support of her claim that she suffered from disabling
mental impairments as of December 3 1 , 1995, claimant points to
statements she made during her initial consultation with D r .
11 Judith Boule-Bruch, on September 4 , 1997. D r . Boule’s notes
reveal that claimant reported that she “has had problems with
depression and suicidal ideation as a lifelong problem; she says
ever since third grade.” Admin. Rec. at 119. But, even
crediting claimant’s assertion that she has suffered from
depression for much of her life, there are no medical records to
support the conclusion that her depression was, prior to the
expiration of her insured status, disabling. As the Commissioner
points out,
“[t]o the extent that her symptoms date to [claimant’s] childhood, the Commissioner surmises they were also present throughout her working years, further undermining her claim that her mental impairments were severe under Social Security rules.”
Defendant’s memorandum (document n o . 9 ) at 7 (citing Goodermote,
690 F.2d at 7 ) .
Nevertheless, claimant says the lack of objective medical
evidence of a mental impairment prior to her date last insured is
not fatal to her application for disability benefits. In support
of that position, claimant says that while objective medical
evidence is necessary to prove that her impairments are, in fact,
disabling, such evidence is not necessary to establish the onset
12 date of her disability. And, says claimant, the ALJ erroneously
conflated two critical steps in his analysis: the determination
of whether claimant currently suffers from a severe mental
impairment and the subsequent calculation of the onset date of
that impairment.
As to the first of those two steps, claimant asserts that
the report of Richard, Toye, Ph.D., a clinical psychologist,
amply supports her claim that she suffers from disabling mental
impairments. The court agrees. Among other things, D r . Toye
found claimant’s current mental impairments adversely affect her
ability to perform several work-related tasks. Specifically, D r .
Toye concluded that claimant was “markedly limited” in her
ability t o : maintain attention and concentration sufficient to
perform work tasks throughout an 8-hour work day; perform
activities within a schedule, maintain regular attendance, and be
punctual; complete a normal work day and workweek without
interruptions from psychologically-based symptoms; and perform at
a consistent pace without an unreasonable number and length of
rest periods. Admin. Rec. as 222-23.3
3 The ALJ’s opinion does not reference the psychological assessment prepared by D r . Toye. Although the record is unclear
13 Crediting those findings, along with those of claimant’s
other treating physician, D r . Judith Boule-Bruch (see Admin. Rec.
at 119-24; 213-15), as well as the observations made by
claimant’s husband (Admin. Rec. at 254-56) and her friend (Admin.
Rec. at 1 7 5 ) , the record certainly suggests that claimant’s
current mental impairments are disabling, particularly when
combined with her physical impairments.4 Nevertheless, the
problem identified by the ALJ remains: aside from claimant’s
assertion that her mental impairments were disabling on or before
December 3 1 , 1995, there are no medical records from the relevant
period to support such a finding.
on this point, that omission might be explained by the fact that Dr. Toye’s report was not finalized until December 2 1 , 2004 - approximately 10 weeks after the ALJ conducted his hearing on the matter. Nevertheless, D r . Toye’s report was prepared well before the ALJ issued his decision on April 2 2 , 2005. And, because that report is part of the record submitted to the court, the court assumes that it was also available to the ALJ prior to the date on which he issued his decision. If that is not the case, the ALJ will have the opportunity to consider D r . Toye’s report on remand. 4 Because this matter is remanded to the ALJ for further consideration, the court will leave it to him to determine, at least initially, whether the record supports a finding that claimant currently suffers from mental impairments that are “severe.” In reaching that decision, the ALJ should, of course, employ the procedures described in 20 C.F.R. § 404.1520a.
14 Thus, the question presented by claimant’s appeal is whether
that absence of medical records for the relevant temporal period
is necessarily fatal to her claim. It is not. 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.”). 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.
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 his or her
disability claim. In fact, the SSR provides just the opposite,
specifically noting that in some cases it may be necessary to
15 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 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 determination that
“there is no objective medical evidence prior to December 3 1 ,
1995 to support a medically determinable mental impairment,”
Admin. Rec. at 1 5 , while likely correct, is not dispositive of
16 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 her insured status is not
dispositive of claimant’s assertion that she 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, former employers, etc. about claimant’s condition and
its affect on her ability to engaged in substantial gainful
activity; and the claimant’s work history). See SSR 83-20, 1983
WL 31249 at *2-3. Additionally, if necessary, he should have
called upon a medical consultant to assist him in inferring the
onset date of claimant’s impairment(s). Id. at * 3 .
17 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
December 3 1 , 1995 to support a medically determinable mental
impairment,” Admin. Rec. at 1 5 , he could not conclude that, prior
to that date, claimant was disabled by reason of a mental
impairment. That was an error.
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 presently
disabled, he should determine the onset date of her disability.
See, e.g., Nelson v . Commissioner of Social Security, 2005 WL
1231500 at *2 (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
18 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 her 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, as well as
that of her husband and her friend (both of whom have known her
since well before her alleged onset date), and the professional
opinions of her treating physicians. If necessary, the ALJ could
also contact claimant’s prior employers, to discuss with them the
reason(s) she left their employ, the nature and quality of her
work, whether her job performance was adversely affected by her
claimed impairment(s), etc. And, as noted above, the ALJ could
also employ the services of a medical consultant to assist him in
inferring the date on which claimant’s impairment(s) likely
became disabling.
19 For the foregoing reasons, claimant’s motion to reverse the
decision of the Commissioner (document no. 8) 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 her decision (document no. 9) 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 and, if the ALJ sees fit, the taking
of additional evidence and/or testimony. The Clerk of Court
shall enter judgment in accordance with this order and close the
case.
SO ORDERED. ^
Steven J. McAuliffe Chief Judge
April 28, 2006
cc: Francis M. Jackson, Esq. Karen B. Nesbitt, Esq. David L. Broderick, Esq.