Robert Chulada v. SSA

2002 DNH 036

• Court: District Court, D. New Hampshire
• Decided: January 31, 2002
• Docket: CV-01-083-B
• Status: Published

Opinion

Robert Chulada v. SSA CV-01-083-B 01/31/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert Chulada

Civil No. 01-083-B 2002 DNH 036 JoAnne Earnhardt. Commissioner. Social Security Administration

MEMORANDUM AND ORDER

Robert Chulada applied to the Commissioner of the Social

Security Administration for both disability insurance benefits

("DIB") under Title II of the Social Security Act, 42 U.S.C. §

401 et seq., and Supplemental Security Income ("SSI") under Title

XVI of the Act, 42 U.S.C. § 1382 et seq. Following a hearing, an

Administrative Law Judge ("ALJ") granted Chulada's application

for SSI but denied his request for DIB because he determined

that, while Chulada was disabled when he applied for benefits and

therefore was entitled to SSI, he did not become disabled until

after his eligibility for DIB had expired. Chulada argues that

the ALJ's decision must be vacated. Because I agree, I remand

the case to the Commissioner for further proceedings.

- 1 - I. OVERVIEW OF THE CASE

Chulada is a former truck driver who claims that he has not

worked since May 1991 and has been disabled from working since

January 1, 1992, when he was 45 years old. In his initial

benefits applications, Chulada specified that he was disabled due

to severe depression and a back injury. The Social Security

Administration denied Chulada's applications initially and upon

reconsideration.

On March 15, 1999, Administrative Law Judge ("ALJ") Kenneth

Harap held a hearing on Chulada's applications, and on June 10,

1999, he issued a written decision. In that the decision, the

ALJ concluded that, as of July 16, 1997, the date he applied for

benefits, Chulada was disabled within the meaning of the Act

because his physical impairments and mental illness prevented him

from returning to his prior work and from making a vocational

adjustment to other work which exists in the national economy.

As a result, the ALJ found Chulada entitled to SSI, which is paid

under a needs-based program not contingent on any earnings

requir e m e n t .

But the ALJ further determined that, through December 31,

1996, the date on which Chulada was last insured under the DIB

- 2 - program, Chulada retained the capacity to perform a wide range of

light work, which is readily available throughout the national

economy, and accordingly was not disabled within the meaning of

the Act. In explaining this conclusion, the ALJ specifically

stated that, on or around July 16, 1997, Chulada experienced an

"onset of major depression" that, in combination with the ongoing

physical limitations that precluded him from driving a truck and

limited him to light work, rendered him totally disabled. The

ALJ also repeatedly referred to Chulada's mental condition as

having "deteriorated" on or after July 16, 1997, and stated that

Chulada had "no psychological limitations other than his drug

dependence" on or prior to December 31, 1996.

In this action, Chulada's general, albeit somewhat implicit,

position is that the ALJ lacked a basis for concluding that his

mental illness, which all agree was disabling as of July 16,

1997, (1) was non-existent or not disabling on or prior to

December 31, 1996, and (2) worsened to the point of becoming

disabling only in mid-1997. In support of his first argument,

Chulada also makes a subsidiary assertion that, to the extent

that the ALJ's conclusion that Chulada had "no psychological

limitations other than his drug dependence" prior to 1997 was

- 3 - premised on a finding that Chulada was mentally ill prior to 1997

but suffered only from mental illness attributable to his drug

dependence (a finding which would preclude the payment of

disability benefits, s e e , e . g . , Bustamante v. M a s s a n a r i , 262 F.3d

949, 954-55 (9th Cir. 2001)), the ALJ made a medical judgment

beyond his competence as a layperson.

II. RELEVANT EVIDENCE

_____ As mandated by Local Rule 9.1, the parties have submitted a

joint statement of material facts summarizing the evidence that

the ALJ considered in rendering his decision. See Document no.

10. Because all agree that Chulada's psychological condition

rendered him disabled as of July 16, 1997, and because this case

challenges only the ALJ's determinations that (1) Chulada had "no

psychological limitations other than his drug dependence" on or

prior to December 31, 1996; (2) Chulada's mental condition

"deteriorated" to the point of becoming disabling on or around

July 16, 1997, I shall limit my recitation to evidence bearing on

these issues. The balance of the parties' joint statement is

incorporated by reference.

A. Evidence of Psychological Impairments Prior to 1997

_____ There is strong record evidence that, on or prior to

- 4 - December 31, 1996, Chulada suffered from depression. In his

October 28, 1993 psych-med assessment, Nechal Tejwani, M.D.,

diagnosed Chulada as suffering from depression, which he

described as "moderate . . . including some vegetative signs."

In his November 26, 1993 "Evaluation Report," clinician N. Paskow

of the Psychological Center diagnosed Chulada with "vegetative

depression," as well as manic symptoms, mood swings, intense

instability, and racing thoughts. In his August 6, 1997 report,

Hans W. Standow, M.D., described Chulada's depression as both

"major" and "recurrent," thus at least implying that the

depression was not of recent origin. Similarly, in his December

10, 1997 psychological evaluation, Angel R. Martinez, Ph.D.,

diagnosed Chulada as having a "major depressive disorder" which

was "recurrent."1 The January 1996 admission assessment of

Spectrum Addiction Services, Inc., described Chulada as suffering

from "severe" depression. Finally, the December 4, 1996

admission assessment Spectrum Health Systems, Inc., observed that

1By contrast, in August 1997, Thomas Meehan, M.D., of Bedford Counseling Associates diagnosed Chulada with a "single episode" of "major depression." And Chulada's intake sheet at Bedford Counseling Associates states "major depression single episode R/O recurrent depression." The parties agree that "R/O" means "rule out." See Joint Statement of Material Facts at 8.

- 5 - Chulada suffered from depression.

In addition, there is record evidence that Chulada suffered

from post-traumatic stress disorder. See October 28, 1993 psych-

med assessment of Dr. Tejwani; November 26, 1993 evaluation

report of clinician Paskow; October 1, 1994 discharge summary of

clinician Dean M. Brouden. Finally, there is evidence that

Chulada, at least periodically, had a suicidal ideation. See

October 1, 1994 discharge summary of clinician Brouden; January

1996 admission assessment of Spectrum Addiction Services, Inc.

B. Evidence of a mid-1997 "Deterioration" in Chulada's Mental

Health

There is little to no evidence that Chulada's mental health

"deteriorated" after December 31, 1996. While Chulada's

depression was described as "major" by Drs. Standow and Martinez

in the latter half of 1997, it also was described as "severe"

when Chulada was admitted to Spectrum Addiction Services in

January 1996. In fact, if anything, the evidence suggests that

Chulada's psychological condition improved in 1997.

The record contains several global assessment of functioning

("GAF") scores assigned to Chulada by examining clinicians

between November 1993 and August 1997. In his brief, Chulada

- 6 - explains, without contradiction from the Commissioner, that "[a]

GAF score is a subjective determination which represents 'the

clinician's judgment of the individual's overall level of

functioning,'" including his "'psychological, social, and

occupational functioning,'" and that "GAF scores of 55 indicate

moderate psychiatric symptoms causing moderate difficulty in

social or occupational functioning and scores of 50 indicate

serious symptoms in social or occupational functioning."

Plaintiff's Motion for Order Reversing the Decision of the

Commissioner at 8 (citing and quoting the Diagnostic and

Statistical Manual of Mental Disorders at 30, 32 (4th ed. 1994)).

Chulada was assigned GAF scores of 20 on November 26, 1993;

50 on January 11, 1996 (also indicating a GAF score of 50 for the

previous year); 50 on January 17, 1996 (also indicating a GAF

score of 50 for the previous year); 50 on December 4, 1996 (also

indicating a GAF score of 50 for the previous y e a r ) ; 55 on June

5, 1997 (also indicating a GAF score of 50 for the previous

year); and 55 on August 13, 1997 (also indicating a GAF score of

85 for the previous year) .

C. Evidence of Drug Dependence On or Prior to December 31, 1996

There is uncontradicted record evidence that Chulada, at

- 7 - least periodically, suffered from drug dependence on or prior to

December 31, 1996. On November 26, 1993, clinician N. Paskow of

The Psychological Center diagnosed Chulada with polysubstance

dependence. The Psychological Center's October 1, 1994 discharge

summary stated that Chulada had polysubstance dependence and

opioid dependence. In January 1996, Spectrum Addiction Services

diagnosed Chulada with opioid dependence. In his August 6, 1997

report. Dr. Standow notes that Chulada admitted to a prior heroin

addiction, and diagnosed Chulada with polysubstance dependence,

in remission. In an August 13, 1997 intake statement, Bedford

Counseling Associates diagnosed Chulada with "polysubstance

dependence 8 mos. sobriety." Dr. Martinez's December 10, 1997

psychological evaluation is to similar effect.

Ill. RELEVANT LAW

The standard of review I apply in evaluating Chulada's

argument is familiar and can be succinctly summarized. I must

uphold the ALJ's determination that Chulada was not disabled

prior to December 31, 1996 if there is "substantial evidence," 42

U.S.C. § 405(g), that Chulada was not then precluded from

"engag[ing] in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which [could have been] expected to result in death or which ha[d] lasted for

a continuous period of not less than 12 months." 42 U.S.C. §

4 2 3 ( d ) (1)(A). Substantial evidence exists where "a reasonable

mind, reviewing the evidence in the record as a whole, could

accept it as adequate to support [the ALJ's] conclusion," Irlanda

Ortiz v. Sec'v of Health & Human S e r v s ., 955 F.2d 765, 769 (1st

Cir. 1991) (per curi a m ) (citation and internal quotation marks

o mitted), even where the record can be construed to support

another conclusion, see Rodriquez Pagan v. Sec'v of Health &

Human S e r v s ., 819 F.2d 1, 3 (1st Cir. 1987) (per curi a m ) .

In making his disability determination, the ALJ applies a

five-step sequential analysis set forth at 20 C.F.R. §§ 404.1520

and 416.920. In this case, the first four steps of that process

are not in issue, so I proceed directly to an overview of step

five. At this point in the process, the Commissioner must show

that, despite the impairment or impairments which preclude the

claimant from returning to his past relevant work, "there are

jobs in the national economy that [the] claimant can perform."

Heqqarty v. Sullivan, 947 F.2d 90, 995 (1st Cir. 1991) (per

curiam) . "Although the ALJ should ordinarily be entitled to rely

on claimant's counsel to structure and present the claimant's

- 9 - case in a way that adequately explores the claims, 'the ALJ is

responsible in every case to ensure that an adequate record is

developed . . . consistent with the issues raised.'" Brunei v.

Earn h a r d t , Civil No. 00-402-B, slip op. at 24-25 (D.N.H. Jan. 7,

2002) (citing and quoting Hawkins v. C h a t e r , 113 F.3d 1162, 1164,

1167 (10th Cir. 1997)). This responsibility, coupled with the

fact that "the absence of evidence is not evidence," Thompson v.

S ullivan , 987 F.2d 1482, 1491 (10th Cir. 1993), means that a

step-five determination that a claimant is not disabled is not

supported by substantial evidence where the "claim itself seems

on its face to be substantial, where there are gaps in the

evidence necessary to a reasoned evaluation of the claim, and

where it is within the power of the [ALJ], without undue effort,

to see that the gaps are somewhat filled." H e q q a r t y , 947 F.2d at

997 (citation and internal quotation marks o m i t t e d ) . The ALJ

cannot, however, fill record gaps with findings that are beyond

his professional competence; if medical or vocational judgments

requiring specialized training are necessary to an informed

disability ruling, they must be made by experts. See Nquven v.

C h a t e r , 172 F.3d 31, 35-36 (1st Cir. 1999) (per curi a m ) .

IV. ANALYSIS

- 10 - As previously noted, Chulada challenges the ALJ's

conclusions that (1) Chulada suffered no function-limiting

psychological impairments other than his drug dependence on or

prior to December 31, 1996; and (2) Chulada's mental condition

"deteriorated" to the point of becoming disabling only on or

around July 16, 1997. Chulada asserts that these conclusions are

unsupported and that, to the extent that the first conclusion was

premised on a finding that Chulada's pre-1997 psychological

impairments were attributable to his drug dependence, this

finding could not be made without the assistance of a medical

advisor. I agree.

It is unclear from his decision why the ALJ determined that

Chulada's condition did not become disabling until after his

eligibility for DIB had expired. If the ALJ's first conclusion

was premised on a finding that Chulada suffered from no

psychological impairments at all on or prior to December 31,

1996, the record not only fails to support his conclusion, but it

utterly contradicts it. See supra Section II-A. Alternatively,

if, as is more likely the case, the ALJ's first conclusion is

premised on a finding that Chulada's documented psychological

impairments on or prior to December 31, 1996 were attributable to

- 11 - his drug dependence and therefore not a proper basis for a

benefits award, s e e , e . g . , Bus t a m a n t e , 262 F.3d 949, 954-55

(explaining the operation of the Contract with America

Advancement Act, 42 U.S.C. §§ 4 2 3 ( d ) (2)(C) and 1 3 8 2 c ( a ) (3)(J ) ,

which states that "an individual shall not be considered to be

disabled for purposes of [benefits under Titles II or XVI of the

Act] if . . . drug addiction would (but for this subparagraph) be

a contributing factor to the Commissioner's determination that

the individual is disabled"), the conclusion rests upon a medical

finding which the ALJ cannot make without a supporting opinion

from a qualified medical advisor, see N q u v e n , 172 F.3d at 35

(collecting cases which emphasize that the ALJ, as a layperson,

is not qualified to interpret raw medical data without a

supporting medical o p i n i o n ) . Finally, as I suggested supra in

Section II-B, the ALJ's second conclusion lacks substantial

evidentiary support.

IV. CONCLUSION

When a court finds that the administrative record does not

contain substantial evidence supporting the Commissioner's

decision, it ordinarily should vacate the decision and remand the

matter for further proceedings consistent with the reasoning in

- 12 - its opinion. See 42 U.S.C. § 405(g); Seavev v. E a r n h a r d t , ___

F .3d ___ , 2001 WL 1631477, at * 6 (1st Cir. Dec. 27, 2001). This

is such a case.

While the medical evidence that exists about Chulada's

psychological condition prior to 1997 suggests that Chulada's

admittedly disabling (as of July 16, 1997) mental conditions

were, if anything, more severe on or prior to December 31, 1996,

such evidence is not extensive. Moreover, it is possible that a

medical expert would link Chulada's pre-1997 psychological

impairments to his non-qualifying drug dependence and opine that

such impairments would not have been disabling but for the drug

use. Finally, even if I were to find Chulada's mental illness to

have been disabling on or prior to December 31, 1996, I have no

grounds for identifying an onset date based on the present record

evidence.

Accordingly, I vacate the judgment denying Chulada

disability insurance benefits and remand this matter to the

Commissioner with instructions that she either identify an onset

date prior to Chulada's date last insured and award him benefits

or generate evidence that Chulada's disabling (as of July 16,

1997) psychological impairments were not in fact disabling,

- 13 - within the meaning of the Act, on or prior to December 31, 1996.

The Commissioner's Motion for an Order Affirming the Decision of

the Commissioner (document no. 9) is denied and the Plaintiff's

Motion for Order Reversing the Decision of the Commissioner

(document no. 6) is g r a n t e d .

The Clerk shall enter judgment accordingly.

SO ORDERED.

Paul Barbadoro Chief Judge

January 31, 2002

cc: Raymond J. Kelly, Esq. David L. Broderick, Esq.

- 14 -