McGriskin v. Berryhill
Filing
18
ORDER and OPINION Reversing and Remanding the decision of the Commissioner. The Clerk is DIRECTED to enter judgment in favor of Plaintiff. Signed by Magistrate Judge Alan J. Baverman on 3/29/2019. (btql)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TRACY M.,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.1
:
:
:
:
:
:
:
:
:
:
CIVIL ACTION FILE NO.
1:17-cv-04713-AJB
ORDER AND OPINION
Plaintiff brought this action pursuant to §§ 205(g) and 1631(c) of the Social
Security Act (“the Act”), 42 U.S.C. §§ 405(g) and 1383(c)(3), to obtain judicial review
of the final decision of the Commissioner of the Social Security Administration (“the
Commissioner”) partially denying her application for Supplemental Security Income
(“SSI”) and Disability Insurance Benefits (“DIB”).2
The parties consented to
1
Nancy A. Berryhill was the Acting Commissioner of Social Security
beginning January 23, 2017. However, her acting status ended as a matter of law
pursuant to the Federal Vacancies Reform Act, 5 U.S.C. § 3345 et seq. Pursuant to
Fed. R. Civ. P. 17(d), a public officer who sues or is sued in an official capacity may
be designated by official title rather than by name. Since Ms. Berryhill no longer is the
Acting Commissioner, the Clerk is DIRECTED to identify Defendant by the official
title rather than by name.
2
Title XVI of the Act, 42 U.S.C. § 1381, et seq., provides for SSI for the
disabled, whereas Title II of the Social Security Act provides for federal DIB,
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magistrate judge jurisdiction. (Dkt. Entry dated 5/25/18). For the reasons set forth
below, the Commissioner’s decision is REVERSED AND REMANDED.
I.
PROCEDURAL HISTORY
On January 30, 2014, Plaintiff filed her application for SSI and DIB alleging a
disability onset date of January 26, 2014. [Record (hereinafter “R”)16]. These claims
were denied initially and upon reconsideration, [R169, 175], and Plaintiff requested a
hearing before an Administrative Law Judge (“ALJ”), [R173]. A hearing was held
before an ALJ on August 11, 2016, at which both Plaintiff, who was represented by an
attorney, and a vocational expert (“VE”), testified. [R33-96]. On October 18, 2016,
the ALJ denied Plaintiff disability benefits prior to December 11, 2015. [R15-27].
Plaintiff then filed for review by the Appeals Council, [see R7], which review was
42 U.S.C. § 401, et seq. The relevant law and regulations governing the determination
of disability under a claim for DIB are nearly identical to those governing the
determination under a claim for SSI. Wind v. Barnhart, 133 Fed. Appx. 684, 690 n.4
(11th Cir. June 2, 2005) (citing McDaniel v. Bowen, 800 F.2d 1026, 1031 n.4
(11th Cir. 1986)). Title 42 U.S.C. § 1383(c)(3) renders the judicial provisions of
42 U.S.C. § 405(g) fully applicable to claims for SSI. In general, the legal standards
to be applied are the same regardless of whether a claimant seeks DIB, to establish a
“Period of Disability,” or to recover SSI. However, different statutes and regulations
apply to each type of claim. Many times parallel statutes and regulations exist for DIB
and SSI claims. Therefore, citations herein should be considered to refer to the
appropriate parallel provision as context dictates. The same applies to citations of
statutes or regulations found in quoted court decisions.
2
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denied on September 19, 2017, making the ALJ’s decision the final decision of the
Commissioner. [R1-6].
Henry v. Comm’r of Soc. Sec., 802 F.3d 1264, 1267
(11th Cir. 2015) (quotation marks and alteration omitted).
Plaintiff filed this action on November 11, 2017, seeking review of the
Commissioner’s decision. [Doc. 3]. The answer and transcript were filed on March 21,
2018. [Docs. 8-9]. On May 23, 2018, Plaintiff filed a brief in support of her claim that
the Commissioner committed reversible error, [Doc. 14], and on June 22, 2018, the
Commissioner filed a response in support of the decision, [Doc. 15], to which Plaintiff
replied, [Doc. 16]. The matter is now before the Court upon the administrative record,
and the parties’ pleadings and briefs,3 and it is accordingly ripe for review pursuant to
42 U.S.C. §§ 405(g) and 1383(c)(3).
3
Neither party requested oral argument. (See Dkt.).
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II.
PLAINTIFF’S CONTENTIONS
Plaintiff claims that the ALJ erred by finding, without the advice of a medical
expert, that Plaintiff was disabled as of December 11, 2015, but not before that date.
[Doc. 14 at 1].
III.
STATEMENT OF FACTS
A.
Background
Plaintiff was born in January 1958 and was 56 years old on the alleged onset date
of January 31, 2014. [R260]. Plaintiff completed high school and worked in the past in
sales, but discontinued work on December 31, 2009 due to “lack of work.” [R300-01].
She completed a year of college and has a certificate in interior design. [R38-39]. She
4
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initially alleged disability due to ascites,4 cirrhosis,5 thrombocytopenia,6 anemia,
hypothyroidism,7 acute kidney injury, jaundice, and Graves’ disease.8 [R299].
4
Ascites is the accumulation of protein-containing (aascitic) fluid within the
abdomen and can be caused by a number of disorders, most commonly high blood
pressure bringing blood to the liver (portal hypertension) as a result of cirrhosis. Merck
Manual Consumer Version, Steven K. Herrine, available at
https://www.merckmanuals.com/home/liver-and-gallbladder-disorders/manifestation
s-of-liver-disease/ascites (last visited 3/28/19).
5
Cirrhosis is the widespread distortion of the liver’s internal structure that
occurs when a large amount of normal liver tissue is permanently replaced with
nonfunctioning scar tissue. The scar tissue develops when the liver is damaged
repeatedly or continuously, which mostly commonly occurs as a
result of chronic alcohol abuse, viral hepatitis, and fatty liver.
Merck Manual Consumer Version, Jesse M. Civan, available at
https://www.merckmanuals.com/home/liver-and-gallbladder-disorders/fibrosis-andcirrhosis-of-the-liver/cirrhosis-of-the-liver (last visited 3/28/19).
6
Thrombocytopenia is a deficiency of platelets (thrombocytes), which
increases the risk of bleeding and occurs when the bone marrow makes too few
platelets or when too many platelets are destroyed or accumulate within an enlarged
spleen, and can result in bleeding in the skin or bruising. Merck Manual Consumer
V e r s i o n ,
D a v i d
J .
K u t e r ,
a v a i l a b l e
a t
https://www.merckmanuals.com/home/blood-disorders/platelet-disorders/overviewof-thrombocytopenia?query=thrombocytopenia (last visited 3/28/19).
7
Hypothyroidism is underactivity of the thyroid gland that leads to
inadequate production of thyroid hormones and a slowing of vital body functions.
Merck Manual Consumer Version, Jerome M. Hershman, available at
https://www.merckmanuals.com/home/hormonal-and-metabolic-disorders/thyroid-gl
and-disorders/hypothyroidism?query=hypothyroidism (last visited 3/28/19).
8
Graves’ disease is an autoimmune disorder that causes hyperthyroidism,
or overactive thyroid. With this disease, the immune system attacks the thyroid and
5
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B.
Lay Testimony
At the hearing before the ALJ, Plaintiff testified that she lives alone in a twostory, single-family home, but lives downstairs, sleeps on the sofa, and only goes
upstairs to shower. [R41]. She has a driver’s license and can drive. [R42]. Plaintiff
testified that she spends most days watching television from the sofa. [R76]. She can
do laundry, but cannot vacuum due to her hand. [R77]. She testified that she has
trouble going to the mailbox and fell badly in May 2016 trying to get groceries out of
the car, but did not seek medical attention. [R77].
Plaintiff stated that, since her alleged onset date, she briefly worked answering
phones at an office (as a temporary replacement while her friend was on medical leave)
from 10 a.m. until four or five p.m., earning just over $3,000 in three months. [R42].
She related that the work was very hard, but they understood her limits, it was not a
busy office, and she could get up and sit down as needed. [R78]. However, she did not
think that she could continue doing that work, even under those conditions, because she
causes it to make more thyroid hormone than your body needs. Nat’l Inst. of Diabetes
and Digestive and Kidney Diseases, Graves’ Disease,
https://www.niddk.nih.gov/health-information/endocrine-diseases/graves-disease (last
visited 3/28/19).
6
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is now in more pain with her knees and has a harder time getting up and down. [R78-79].
Plaintiff testified that she “had major depression for a long time” and if affects
her “job performance and anything I do.” [R50]. She stated that she does not “want
to go out of the house.” [Id.]. She testified that she takes prescription antidepressants,
which make her very tired and fall asleep. [R51].
Plaintiff also testified that she has cirrhosis of the liver as a result of drinking
everyday, but that she has not drank since January 2014. [R52]. She reported that she
went to Alcoholics Anonymous for eight weeks and has had some wine since then.
[R53]. Most recently, she was told that her liver is functioning at 87 percent. [Id.].
She takes medication for her liver, which she claims prevents her from working because
it causes her to fall asleep. [Id.]. She also testified that she has hypothydroidism which
makes her hands shake such that she always drops things. [R54-55]. Plaintiff reported
that her distance vision is blurry with her glasses and she has not been able to go to an
eye doctor as she lacks health insurance. [R56-7, 41]. However, she can read with her
current glasses. [R59].
Plaintiff testified that she no longer has strength in her right hand and cannot
pull anything or hold anything heavy. [R59]. Plaintiff testified that she had Cortisone
7
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shots9 in her shoulder, which still hurts, because she could not move it at all. [R68].
She further explained that her foot and ankle surgery caused her equilibrium to be off,
her toes do not bend, her knees “are giving out[,]” and it is very difficult to even go up
the two stairs to get into her home or get out of the sofa. [R59-60]. Plaintiff admitted
that the walker she brought to the hearing was not prescribed and she got it at a garage
sale. [R60]. Plaintiff testified that Robin Carey, a D.O. at Grady, recommended a
walker. [R68-69]. She also stated that, in 2015, another doctor at Grady told her the
only treatment for her foot would be another operation. [R69-70].
Plaintiff recounted that she had “brain surgery” in 2014 due to an aneurysm.10
[R71]. She later clarified that the vessel did not explode, as it was caught and repaired
in time, but she was bleeding two weeks afterwards from the operation. [R72]. She
9
Cortisone shots are injections that may help relieve pain and inflammation
in a specific area of your body. They're most commonly injected into joints —
such as your ankle, elbow, hip, knee, shoulder, spine and wrist.
S e e
M a y o
C l i n i c ,
C o r t i s o n e
s h o t s ,
https://www.mayoclinic.org/tests-procedures/cortisone-shots/about/pac-20384794 (last
visited 3/28/19).
10
An aneurysm is a bulge or “ballooning” in the wall of an artery. Arteries
are blood vessels that carry oxygen-rich blood from the heart to other parts of the body.
If an aneurysm grows large, it can burst and cause dangerous bleeding or even death.
MedlinePlus, https://medlineplus.gov/aneurysms.html (last visited 3/28/19).
8
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reported that she returned to the emergency room and had low blood pressure and
hemoglobin and received a blood transfusion, but has since been okay. [R73].
Plaintiff testified that, after her foot surgery, she planned to return to work, but
her foot never got better. [R75]. She further testified that she cannot stay seated long
and must get up every 20-30 minutes because she gets stiff. [R75]. She opined that
she cannot lift more than five pounds with her right arm and 10 with her left. [R75-76].
She could stand for about 10 minutes before needing to sit, and can walk for 10
minutes. [R76].
C.
Medical Records
1.
Physical Impairments
On July 15, 2012, Plaintiff was seen at Gwinnett Medical Center with chest pain
and was diagnosed with left chest wall pain and a right foot injury due to a motor
vehicle accident the previous month. [R1841]. Chastain Resurgens Orthopaedics saw
her on September 13, 2012, and she was diagnosed as suffering from a possible
non-union of her TMT joints11 in her foot. [R383]. She also had some chronic heel
11
The tarsometatarsal (“TMT”), or Lisfranc, joint or complex is a complex
region of bone, ligaments, cartilage and other tissues on the foot where the long bones
heading to the toes (phalanges) meet the bones of the middle foot and rear foot that
make up the foot’s arch (which includes the medial, intermediate, and lateral cuneiform,
or cuboid, bones). The TMT joint provides stability when walking. See
9
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valgus problems12 and a tight calf with pain primarily in the midfoot and a collapsed
flatfoot with a TMT fracture. [Id.]. She was prescribed a scooter and crutches. [Id.].
Plaintiff returned on October 4, 2012 for her TMT fracture dislocation, midfoot
degenerative joint disease, hindfoot valgus and midfoot collapse, and she was
determined to be ready for reconstructive surgery. [R382].
On October 12, 2012, Plaintiff was admitted to North Fulton Hospital and
diagnosed with was a collapsed right foot with tight calf and TMT degenerative joint
disease. [R355]. The secondary diagnosis was depression, asthma, hypertension,
thyroid disorder, Graves’ disease, prior surgery to the left ankle, and prior surgery to
the right shoulder. [Id.]. Her discharge instructions were touchdown weightbearing
plus elevation and use of a walker. [Id.]. The operative report indicated a right
posterior tibial tendon13 with talonavicular capsule/spring ligament reefing,14 right foot
https://www.verywellhealth.com/tarsometatarsal-joints-1337736 (last visited 3/28/19).
12
Valgus refers to a bone deformity causing a bone to tilt away from the
midline of the body. In the case of heel valgus, it causes the heel to drift outwards and
can result in a flattening of the foot’s arch. It can be genetic or due to an injury or
r h e u m a t o i d
a r t h r i t i s .
S e e
https://www.versusarthritis.org/about-arthritis/conditions/valgus-heel/ (last visited
3/28/19).
13
The posterior tibial tendon attaches the calf muscle to the bones on the
inside of the foot and holds up the arch and support the foot when walking. See
10
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medial column flexor digitorum longus transfer,15 right first, second, and third TMT
joint fusion, and a right gastrocnemius recession.16 [R360].
Plaintiff returned to Chastain Resurgens Orthopaedics on October 24, 2012 for
extensive foot realignment and fusion of first, second, and third TMT joint. [R381].
She was stable, had steri-strips installed, and received a short leg cast with arch and toe
https://orthoinfo.aaos.org/en/diseases--conditions/posterior-tibial-tendon-dysfunctio
n/(last visited 3/28/19).
14
Capsular reefing of the talonavicular joint is a method of tendon
reconstruction surgery used to correct the forefoot-to-rearfoot relationship in posterior
tibial tendon dsyfunction (“PTTD”). See Fleischli JG, Fleischli JW, Laughlin TJ,
Treatment of posterior tibial tendon dysfunction with tendon procedures from the
posterior muscle group, Clin Podiatr Med Surg., 1999 Jul; 16(3):453-70, available at
https://www.ncbi.nlm.nih.gov/pubmed/10470508 (last visited 3/28/19).
15
Stage II posterior tibial tendon dysfunction (PTTD) can be treated by
flexor digitorum longus (FDL) tendon transfer. See Reinhard Schuh, Florian Gruber,
Axel Wanivenhaus, Nikolaus Hartig, Reinhard Windhager, and Hans-Joerg Trnka,
Flexor digitorum longus transfer and medial displacement calcaneal osteotomy for the
treatment of stage II posterior tibial tendon dysfunction: kinematic and functional
results of fifty one feet, Int Orthop., 2013 Sep; 37(9): 1815–1820, Published online
2013 Aug 22. doi: 10.1007/s00264-013-2071-6, available at
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3764285/ (last visited 3/28/19).
16
Gastrocnemius recession is an inpatient surgical procedure used to
treat flatfoot, chronic Achilles tendonitis, and toe walking by lengthening the
muscles and tendons in the back of the leg, allowing the heel to
shift downward into a more natural position.
See
https://www.resurgens.com/foot-ankle/procedures/gastrocnemius-recession-intramu
scular-approach (last visited 3/28/19).
11
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plate which was placed in neutral. [Id.]. Plaintiff followed-up on November 7, 2012
for her post foot alignment and fusion and was stable, cleaned, redressed, and recasted.
[R380]. Plaintiff continued her treatment on November 26, 2012 for her TMT
degenerative joint disease and was stable and recasted in a short leg cast with an arch
and toe plate. [R379].
On December 26, 2012, Plaintiff was again assessed at Chastain Resurgens and
determined to be stable, with her midfoot much more stable and pain-free. [R378]. Her
foot was again recasted. [Id.]. She returned on January 16, 2013 and was assessed with
continued/recurrent collapsed foot at the talonavicular joint, with heel valgus, mildly
improved with prior surgery but not completely realigned. [R377]. On February 1,
2013, Plaintiff returned again and was assessed with a questionable union at the first,
second, and third TMT joint fusion site and a continued collapsed foot with the
uncovering of the talar head17 in the heel valgus. [R375].
17
The talus is the bone at the bottom of the ankle, between the heel, midfoot
and leg. When the talar head is uncovered it means that the top of the talus has been
pushed out of alignment, creating a gap between the foot, heel, and leg bones or,
essentially, a dislocated ankle. This is known as a Type II fracture on the Hawkins
scale classifying tallus fractures. See Timothy Alton, MD, Daniel J. Patton, MD, and
Albert O. Gee, MD, Classifications in Brief: The Hawkins Classification for Talus
Fractures, Clin Orthop Relat Res., 2015 Sep; 473(9): 3046–3049, published online
2015 Jan 14. doi: 10.1007/s11999-015-4136-x, available at
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4523513/ (last visited 3/28/19).
12
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On February 7, 2013, Plaintiff was admitted to North Fulton Hospital for a CT
scan of her foot that determined that the previous fracture was in anatomic alignment
and was fully united. The joint space was markedly reduced with near complete fusion
of the three joints. [R351]. Plaintiff returned to Chastain Resurgens on February 14,
2013 for “severe flatfoot.” [R374]. Although the treating doctor thought she would
probably be best served by a triple arthrodesis,18 he wanted to review her CT scan.
[Id.].
Chastain Resurgens Orthopaedics saw Plaintiff on February 21, 2013 and
assessed her with possible non-union of the first, second, and third TMT joints heel
valgus and uncovered talar head. [R373]. Appropriate footwear was discussed and
orthotics were glued to her shoe liners. [Id.]. Plaintiff returned on August 23, 201319
18
The triple arthrodesis is a foot surgery first developed in the early 20th
century to stabilize the hindfoot of polio patients, but subsequently became a surgery
to treat various musculoskeletal problems in the foot. It carries a risk of arthritis at the
joints near the surgery site and increases joint pressure there. John Grady, Mallory
Schweitzer, Keith D. Cook, and Zachary Criswell, Point-Counterpoint: Is It Time To
Retire The Triple Arthrodesis?, PodiatryToday, Volume 29 - Issue 4 - April 2016, pp.
4 8 - 5 3
( M a r .
2 3 ,
2 0 1 6 ) ,
a v a i l a b l e
a t
https://www.podiatrytoday.com/point-counterpoint-it-time-retire-triple-arthrodesis (last
visited 3/28/19).
19
Although the record indicates this note was made on August 23, 2012, the
Court believes this is a scrivener’s error, as it references a motor vehicle accident on
August 26, 2012, which could not have occurred prior to August 23, 2012. [R385].
13
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and reported a head-on motor vehicle accident on August 26, 2012. [R385]. She was
assessed with an acute-on-chronic wear, instability, and the valgus of TMT joints in the
middle of the right foot. [Id.]. She was advised to use a boot, rest, elevate, take
Tramadol,20 and partial weight bearing with the use of crutches. [R386].
Plaintiff was seen at Grady Hospital on January 26, 2014 for her cirrhotic liver
with ascites. She was assessed with cirrhotic liver with ascites, no focal liver lesion,
cholelithiasis21 without evidence of cholecystitis,22 and a nonobstructing right renal
stone. [R1135-36, 1146].
On February 21, 2014, Plaintiff was admitted to Grady Hospital with abdominal
pain, swelling, and dyspnea. [R428]. She was diagnosed with ascites, liver failure,
20
Ultram (tramadol) is in a class of medications called opiate (narcotic)
analgesics and is used to relieve moderate to moderately severe pain. MedlinePlus,
Tramadol, http://medlineplus.gov/druginfo/meds/a695011.html (last visited 3/28/19).
21
Cholelithiasis is the presence of one or more calculi (gallstones) in the
gallbladder. Gallstones tend to be asymptomatic. Siddiqui, Ali A., M.D.,
Cholelithiasis, available at Merck Manual Professional Version,
https://www.merckmanuals.com/professional/hepatic-and-biliary-disorders/gallblad
der-and-bile-duct-disorders/cholelithiasis (last visited 3/29/19).
22
Cholecystitis is inflammation of the gallbladder.
M a y o
C l i n i c ,
C h o l e c y s t i t i s ,
https://www.mayoclinic.org/diseases-conditions/cholecystitis/symptoms-causes/syc20364867 (last visited 3/29/19).
14
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Graves s/p ablation which was now hypothyroid, bloating and shortness of breath at
rest and it was noted that she had previously been admitted on January 20, 2014,
diagnosed with cirhossis and received a interventional radiology (“IR”) guided
paracentesis.23 [R428-29]. Another guided paracentesis was performed and revealed
some ascites. [R446]. She was discharged on February 28, 2014. [Id.].
She returned on March 26, 2014 complaining of headaches that radiated around
her head with some frontal eye pain and feelings of deteriorated vision that caused her
to feel clumsy and an internal carotid artery (“ICA”)24 aneurysm was found on CT scan.
[R553-54]. Plaintiff was diagnosed with an active problem list of jaundice, ascites,
23
Paracentesis is a procedure in which a thin needle or tube is put into the
abdomen to remove fluid from the peritoneal cavity (the space within the abdomen that
contains the intestines, the stomach, and the liver). National Cancer Institute,
p
a
r
a
c
e
n
t
e
s
i
s
,
https://www.cancer.gov/publications/dictionaries/cancer-terms/def/paracentesis (last
visited 3/29/19).
24
The neck has two carotid arteries, which are further divided into an interior
and an exterior artery, that transfer blood in and out of the skull, with the interior artery
supplying blood to the brain and situated behind the ear.
See
https://www.healthline.com/human-body-maps/internal-carotid-artery#1 (last visited
3/28/19).
15
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Graves’ disease, end-stage liver disease, abdominal pain, esophageal varices in
cirrhosis,25 hypothyroid, and an ICA aneurysm. [R555].
Plaintiff was admitted to Grady hospital on April 24, 2014 with complaints of
generalized weakness, pain in her chest, shortness of breath, bilateral arm pain, and
stated that she was “holding fluid.” [R565]. Pitting edema26 was noted bilaterally in
her legs and she was placed on continuous cardiac monitor. [Id.]. Hypotension,
shortness of breath, and liver disease were noted and she was discharged on April 26,
2014 and diagnosed with ascites, upper extremity and chest pain, as well as borderline
hypotension. [R565-70].
Grady Hospital saw Plaintiff on May 7, 2014 for a diagnostic cerebral
angiogram,27 following an aneurysm and neurosurgery evaluation. [R1261]. She was
25
Esophageal varices are enlarged or swollen veins that occur on the lining
of the esophagus and can be life-threatening if they break open and bleed. See
https://my.clevelandclinic.org/health/diseases/15429-esophageal-varices (last visited
3/28/19).
26
Pitting edema occurs when fluid collects in the tissue. By pressing a
thumb or finger firmly against the tissue for a few seconds, a dent can be produced.
When the finger is withdrawn, the dent may persist for several minutes. MedlinePlus,
P i t t i n g
E d e m a
o n
t h e
L e g ,
http://www.nlm.nih.gov/medlineplus/ency/imagepages/2916.htm (last visited 3/28/19).
27
A diagnostic cerebral angiogram, or arteriogram, is a procedure whereby
a catheter is inserted into the femoral artery and threaded into the brain where it injects
16
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discharged the next day as it went well without complications. [Id.]. She returned on
May 13, 2014 complaining of a headache. [R1302].
Plaintiff returned to Grady on May 16, 2014 to have the results of her foot
surgery reevaluated since she had not gotten the results that she would have liked.
[R1436]. An x-ray of her right foot and cervical spine on May 19, 2014 revealed that
her right foot had screws from her previous surgery that suggest mobility at one area
and that she had mild osteoarthritis of the cervical spine. [R1462].
On May 28, 2014, Plaintiff was admitted to Grady Hospital for her aneurysm and
required further hospitalization due to oozing from her groin. [R701]. She received a
blood transfusion on May 30, 2014 due to her blood loss. [R711]. On that same date,
she complained of a left shoulder pain and x-rays were taken that showed inferior
a contact agent to illuminate the vessels and produce images which allow for a more
definitive diagnosis of changes to blood vessels.
See
https://www.wakemed.org/surgery-diagnostic-cerebral-angiography-what-to-expect
(last visited 3/28/19).
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humeral head28 osteophytes,29 but no dislocation, no significant AC joint30
osteoarthritis, and no soft tissue abnormality. [R726]. She was discharged on June 1,
2014 but returned on June 5, 2014 due to her oozing groin hematoma. [R852].
Pressure dressing was placed on her left groin wound and Tramadol was given without
success and then switched to Percocet31 with good results. [Id.].
28
The glenohumeral joint is a ball-and-socket joint that helps move the
shoulder forward and backward and allows the arm to rotate in a circular fashion or
hinge out, up, and away from the body. Nat’l Inst. of Arthritis & Musculoskeletal &
S k i n
D i s e a s e s ,
S h o u l d e r
P r o b l e m s ,
http://www.niams.nih.gov/Health_Info/Shoulder_Problems/default.asp (last visited
3/29/19).
29
Osteophytes are common features of osteoarthritis and can contribute both
to the functional properties of affected joints and to clinical relevant symptoms.
Osteophyte formation is highly associated with cartilage damage but osteophytes can
develop without explicit cartilage damage. Peter M. Van der KraanPh.D., and Wim B.
Van den Berg, Ph.D., Osteophytes: relevance and biology, Osteoarthritis and Cartilage,
Vol.
15,
Is.
3
(Mar.2007),
available
at
https://www.sciencedirect.com/science/article/pii/S106345840600327X (last visited
3/29/19).
30
The acromioclavicular (“AC”) joint is a joint at top of shoulder where the
clavicle and highest part of scapula meet. Grant Cooper, M.D., Osteoarthritis
D i a g n o s i s ,
A u g .
1 9 ,
2 0 1 0 ,
https://www.arthritis-health.com/types/osteoarthritis/what-acromioclavicular-arthriti
s-ac-joint-arthritis.
31
Percocet is a combination of oxycodone and acetaminophen and is a
narcotic analgesic used to relieve moderate-to-severe pain. MedlinePlus, Oxycodone,
https://medlineplus.gov/druginfo/meds/a682132.html (last visited 3/28/19).
18
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On July 30, 2014, Grady noted an area of oozing that indicated a history of a
gastric ulcer, [R1324], and a variceal screening32 was conducted with an upper
endoscopy, [R1731]. However, a year later, on July 29, 2015, Plaintiff was seen at
Gwinnett Medical Center for vomiting blood and diagnosed for upper GI and variceal
bleed, alcoholic cirrhosis, thrombocytopenic, anemia of acute blood loss, and mildly
elevated levels of urea nitrogen and serum creatine in her blood. [R1774-75].
On September 9, 2015, Plaintiff was seen at Grady for her thyroid problem and
given medication, [R1848], with a follow-up on September 13, 2015, [R1852]. On
March 8, 2016, Plaintiff was seen at Grady to follow-up on her Graves’ disease
ophthalmic complication, hyperthyroidism, history of alcohol dependence, cirrhosis
with decline in brain function, varices, ascites, and painful tongue ulcer. [R1857-59].
Plaintiff returned on March 21, 2016, for abduction deformity of her foot, a mass on her
left breast, acute bronchitis, and feeling tired. [R1872]. She also still had the tongue
ulcer, was severely depressed, had chronic pain, including in her right arm
intermittently and all over her body. [R1880]. She returned on April 13, 2016 with
32
Esophageal varices are dilated collateral blood vessels that often develop
as a result of cirrhosis which increases liver vein pressure and deteriorates liver
function. If they grow up to a critical point, when they rupture and cause
life-threatening bleeding.
They can be seen on endoscopy.
See
https://bestpractice.bmj.com/topics/en-us/815 (last visited 3/28/19).
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arm and toe pain after a mugging five days prior in which she was thrown to the ground
and got large hematomas on her left elbow and arm and bruising on her foot and toes.
[R1884].
2.
Mental Impairments
On May 21, 2014, View Point Health saw Plaintiff for symptoms of depression,
anxiety, tearfulness, and insomnia and was diagnosed with alcohol abuse, severe
depression, cirrhosis of the liver, and social support problems.
[R1225-26].
On June 9, 2014, Plaintiff returned with the same symptoms and received the same
diagnosis. [R1236-37]. Plaintiff returned the next day and her symptoms and diagnosis
were again the same. [R1229]. On March 8, 2015 Plaintiff went to Grady for routine
care and referrals for mental health treatment due to depression. [R1856].
3.
Medical Opinions
On June 16, 2014, Plaintiff presented for a consultative examination with Sarah
E. Howell, Psy.D., who conducted a psychological evaluation via a clinical interview
and concluded that Plaintiff met the criteria for Major Depressive Disorder, Recurrent,
Moderate; Adjustment Disorder with Anxiety; and Alcohol Use Disorder, moderate,
sustained partial remission, and was assessed with minimal or mild limitations in all
four functional domains. [R1240-43].
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D.
Vocational-Expert Testimony
The VE testified that Plaintiff’s past work as an order clerk was semi-skilled and
sedentary, as a recruiter was skilled and sedentary, as a trainer was skilled and light, as
a software sales representative was medium/light and skilled, as a telecommunications
sales representative was light skilled, and as a telephone operator was sedentary and
semi-skilled. [R81-83].
The VE testified that a person of plaintiff’s age, education, and work experience,
who can perform light work, as described in the DOT, never climb ladders, ropes or
scaffolds, but can occasionally climb ramps or stairs, stoop, kneel, crouch and crawl,
and limited to simple, routine work, could not perform Plaintiff’s past work. [R83].
The VE also testified that the same person without the simple, routine work limitation
could not perform software sales representative jobs at the medium level, but could do
the recruiting, filling orders, telephone operator, and the AT&T sales representative
jobs. [R83-84]. The VE testified that a person of plaintiff’s age, education, and work
experience, who could sit for an hour, stand for 30 minutes, walk an hour total in a
workday, and never lift ten or more pounds, could not perform any work. [R87].
IV.
ALJ’S FINDINGS OF FACT
The ALJ made the following findings of fact:
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1.
The claimant meets the insured status requirements of the
Social Security Act through December 31, 2015.
2.
The claimant has not engaged in substantial gainful activity
since the alleged onset date (20 CFR 416.971 et seq. and
404.1571 et seq.).
...
3.
Since the alleged onset date of disability, January 26, 2014,
the claimant has had the following severe impairments:
chronic liver disease/cirrhosis and osteoarthritis
(20 CFR 404.1520(c) and 416.920(c)).
...
4.
Since the alleged onset date of disability, January 26, 2014,
the claimant has not had an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925, and 416.926).
5.
After careful consideration of the entire record, I find that
prior to December 11, 2015, the date the claimant became
disabled, the claimant had the residual functional capacity to
perform light work as defined by in 20 CFR 404.1567(b) and
416.967(b) except she could never climb ladders, ropes, or
scaffolds, but she could occasionally climb ramps and stairs,
stoop, kneel, crouch, and crawl.
...
6.
After careful consideration of the entire record, I find that
beginning December 11, 2015, the claimant has the residual
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functional capacity to perform a markedly reduced range of
sedentary work as defined by 20 CFR 404.1567(a), in that
she can never lift even up to 10 pounds, and she can only sit
for one hour total, stand for 30 minutes total, and walk for
one hour total in an eight-hour day.
...
7.
Prior to December 11, 2015, the claimant was capable of
performing past relevant work as an order clerk, personnel
recruiter and trainer, sales representative, and telephone
operator. The work does not require the performance of
work-related activities precluded by claimant’s residual
functional capacity (20 CFR 404.1565 and 416.965).
...
8.
Beginning on December 11, 2015 the claimant’s residual
functional capacity has prevented the claimant from being
able to perform past relevant work (20 CFR 404.1565 and
416.965).
9.
The claimant was an individual of advanced age on
December 11, 2015, the established disability onset date
(20 CFR 404.1563 and 416.963).
10.
The claimant has at least a high school education and is able
to communicate in English (20 CFR 404.1564 and 416.964).
11.
The claimant does not have work skills that are transferable to
other occupations within the residual functional capacity
defined above (20 CFR 404.1568 and 416.968).
12.
Since December 11, 2015, considering the claimant’s age,
education, work experience, and residual functional capacity,
there are no jobs that exist in significant numbers in the
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national economy that the claimant can perform
(20 CFR 404.1560(c), 404.1566, 416.960(c), and 416.966).
...
13.
The claimant was not disabled prior to December 11, 2015
(20 CFR 404.1520(f) and 416.920(f) but became disabled on
that date and has continued to be disabled through the date of
this decision (20 CFR 404.1520(g) and 416.920(g)).
[R18-26].
The ALJ examined Plaintiff’s claims of depression, anxiety and substance abuse,
but concluded that they were not severe because both examining and consultative
medical sources assessed her with no more than minimal limitations in her ability to
function, and this conclusion was supported by treatment notes in the record. [R19-20].
Likewise the ALJ recognized that Plaintiff had the following impairments:
hypothyroidism, Graves’ disease; thrombocytopenia; anemia; acute kidney injury; and
was obese. [R20-21]. However, the ALJ found that none of the impairments, either
singly or in combination, caused more than minimal limitations. [Id.].
In so concluding, the ALJ accorded significant weight to Dr. Howell’s opinion
that Plaintiff was no more than minimally or mildly limited due to her mental health,
because it was supported by her own examination and the overall evidence. [R19]. The
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ALJ also accorded significant weight to non-examining psychological consultants as
they were consistent with the record. [R20].
The ALJ found that Plaintiff’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms, but her statements concerning
the intensity, persistence and limiting effects of these symptoms are not supported prior
to December 11, 2015. [R22]. First, the ALJ noted that Plaintiff admitted she ceased
work in December 2009, not due to disability, but due to a lack of work. [R22].
Second, the ALJ noted that, in early 2014, there were no treating sources indicating any
functional limitations due to an impairment and, while Plaintiff was hospitalized in
July 2015 for an acute upper GI bleed, she was able to work seven hours a day for five
days a week for three months in early 2015. [R23-24].
However, the ALJ acknowledged that Plaintiff’s condition worsened in late
2015, as she was seen at Grady in March 2016 for depression and chronic pain. [R24].
He noted Dr. John Shih’s May 11, 2016 medical source statement opining that Plaintiff
could not lift more than 10 pounds, sit for more than one hour, stand for more than 30
minutes, or walk for more than an hour in an eight-hour workday. [R25]. The ALJ also
noted that there were internal inconsistencies between Dr. Shih’s exam—documenting
Plaintiff’s antalgic gait but no atrophy, joint tenderness, full strength in all
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extremities—and opinion. [Id.]. Nevertheless, the ALJ accorded significant weight to
Dr. Shih’s opinion as it was “sufficiently supported by his examination and testing.”
[Id.].
The ALJ concluded that Plaintiff “became disabled at or near December 11,
2015 (six months prior to the consultative examination of Dr. Shih, which provides
sufficient evidence of disability).” [Id.]. Consequently, the ALJ found that, based on
the VE’s testimony, Plaintiff could perform past relevant work prior to December 11,
2015. [Id.].
V.
STANDARD FOR DETERMINING DISABILITY
An individual is considered disabled for purposes of disability benefits if he 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), 1382c(a)(3)(A).
The impairment or
impairments must result from anatomical, psychological, or physiological abnormalities
which are demonstrable by medically accepted clinical or laboratory diagnostic
techniques and must be of such severity that the claimant is not only unable to do
previous work but cannot, considering age, education, and work experience, engage in
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any other kind of substantial gainful work that exists in the national economy.
42 U.S.C. §§ 423(d)(2)-(3), 1382c(a)(3)(B), (D).
The burden of proof in a Social Security disability case is divided between the
claimant and the Commissioner. The claimant bears the primary burden of establishing
the existence of a “disability” and therefore entitlement to disability benefits.
See 20 C.F.R. §§ 404.1512(a), 416.912(a). The Commissioner uses a five-step
sequential process to determine whether the claimant has met the burden of proving
disability.
See 20 C.F.R. §§ 404.1520(a), 416.920(a); Doughty v. Apfel,
245 F.3d 1274, 1278 (11th Cir. 2001); Jones v. Apfel, 190 F.3d 1224, 1228
(11th Cir. 1999). The claimant must prove at step one that he is not undertaking
substantial gainful activity. See 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). At
step two, the claimant must prove that he is suffering from a severe impairment or
combination of impairments that significantly limits his ability to perform basic
work-related activities. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). At
step three, if the impairment meets one of the listed impairments in Appendix 1 to
Subpart P of Part 404 (Listing of Impairments), the claimant will be considered
disabled without consideration of age, education, and work experience.
See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). At step four, if the claimant
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is unable to prove the existence of a listed impairment, he must prove that his
impairment
prevents
performance
of
past
relevant
work.
See 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At step five, the regulations
direct the Commissioner to consider the claimant’s residual functional capacity, age,
education, and past work experience to determine whether the claimant can perform
other work besides past relevant work.
See 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). The Commissioner must produce evidence that there is other work
available in the national economy that the claimant has the capacity to perform.
Doughty, 245 F.3d at 1278 n.2. To be considered disabled, the claimant must prove an
inability to perform the jobs that the Commissioner lists. Id.
If at any step in the sequence a claimant can be found disabled or not disabled,
the
sequential
evaluation
ceases
and
further
inquiry
ends.
See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Despite the shifting of burdens at step
five, the overall burden rests on the claimant to prove that he is unable to engage in any
substantial gainful activity that exists in the national economy.
Doughty,
245 F.3d at 1278 n.2; Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir. 1983),
superseded by statute on other grounds by 42 U.S.C. § 423(d)(5), as recognized in
Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1214 (11th Cir. 1991).
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VI.
SCOPE OF JUDICIAL REVIEW
A limited scope of judicial review applies to a denial of Social Security benefits
by the Commissioner. Judicial review of the administrative decision addresses three
questions: (1) whether the proper legal standards were applied; (2) whether there was
substantial evidence to support the findings of fact; and (3) whether the findings of fact
resolved the crucial issues. Washington v. Astrue, 558 F. Supp. 2d 1287, 1296
(N.D. Ga. 2008); Fields v. Harris, 498 F. Supp. 478, 488 (N.D. Ga. 1980). This Court
may not decide the facts anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). If
substantial evidence supports the Commissioner’s factual findings and the
Commissioner applies the proper legal standards, the Commissioner’s findings are
conclusive. Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th Cir. 1997); Barnes v.
Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987) (per curiam);
Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986) (per curiam); Bloodsworth
v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
“Substantial evidence” means “more than a scintilla, but less than a
preponderance.” Bloodsworth, 703 F.2d at 1239. It means such relevant evidence as
29
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a reasonable mind might accept as adequate to support a conclusion, and it must be
enough to justify a refusal to direct a verdict were the case before a jury. Richardson
v. Perales, 402 U.S. 389, 401 (1971); Hillsman, 804 F.2d at 1180; Bloodsworth,
703 F.2d at 1239. “In determining whether substantial evidence exists, [the Court]
must view the record as a whole, taking into account evidence favorable as well as
unfavorable to the [Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986) (per curiam). Even where there is substantial evidence to the contrary
of the ALJ’s findings, the ALJ decision will not be overturned where “there is
substantially supportive evidence” of the ALJ’s decision.
Barron v. Sullivan,
924 F.2d 227, 230 (11th Cir. 1991). In contrast, review of the ALJ’s application of legal
principles is plenary. Foote v. Chater, 67 F.3d 1553, 1558 (11th Cir. 1995); Walker,
826 F.2d at 999.
VII. CLAIMS OF ERROR
Plaintiff claims that the ALJ improperly found, without any medical expert
advice, that Plaintiff was not disabled prior to December 11, 2015. [Doc. 14 at 1].
A.
Standards for Determining Alleged Onset Date
Social Security Ruling 83-20 governs the method for determining a claimant’s
alleged onset date and defines the alleged onset date as “the first day an individual is
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disabled as defined in the Act and the regulations[.]” SSR 83-20, 1983 WL 31249.
When the onset of a claimant’s disabilities is progressive (rather than of a traumatic
origin), the determination of onset involves consideration of the claimant’s allegations,
work history, if any, and the medical and other evidence concerning impairment
severity. Id. at *2; accord Alexander v. Comm’r of Soc. Sec., 435 Fed. Appx. 813, 817
(11th Cir. July 20, 2011); Volley v. Astrue, Civ. Action No. 1:07-CV-0138-AJB,
2008 WL 822192, at *12 (N.D. Ga. Mar. 24, 2008) (“[T]he ALJ should consider the
applicant’s allegations, work history and ‘medical and other evidence.’ ”) (quoting
SSR 83-20). “The weight to be given any of the relevant evidence depends on the
individual case.” SSR 83-20. However, there is no rigid requirement that the
Commissioner specifically refer to every piece of evidence in the decision, so long as
the decision is not a broad rejection which is not enough to enable the court to conclude
that the Commissioner considered the claimant’s medical condition as a whole.
Moncrief v. Astrue, 300 Fed. Appx. 879, 881 (11th Cir. Dec. 1, 2008) (citing Dyer,
395 F.3d at 1211) (affirming ALJ’s decision despite plaintiff’s contention that the ALJ
had ignored evidence favorable to her); see also McLain v. Comm’r, Soc. Sec. Admin.,
676 Fed. Appx. 935, 937 (11th Cir. Jan. 20, 2017) (citing Mitchell v. Comm’r, Soc. Sec.
Admin., 771 F.3d 780, 782 (11th Cir. 2014) (same)).
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SSR 83-20 recognizes that when impairments are slowly progressive, “it is
sometimes impossible to obtain medical evidence establishing the precise date an
impairment became disabling,” and that “[d]etermining the proper onset date is
particularly difficult, when, for example, the alleged onset and the date last worked are
far in the past and adequate medical records are not available.”
SSR 83-20,
1983 WL 31249 at *2. In these cases, the onset date must be inferred from the evidence
that “describe[s] the history and symptomatology of the disease process.” Id. When
determining the onset date, “the date alleged by the individual should be used if it is
consistent with all the evidence available,” and “[w]hen the medical or work evidence
is not consistent with the allegation, additional development may be needed to reconcile
the discrepancy.” Id. at *3. In any case, “the established onset date must be fixed
based on the facts and can never be inconsistent with the medical evidence of
record.” Id.
In such cases, where precise evidence is not available and an inference must be
made as to the date of onset of disability, SSR 83-20 additionally provides that the ALJ
should take testimony from a medical expert:
In some cases, 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
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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.
Id. SSR 83-20 also makes clear that where medical evidence pertaining to the relevant
time period is no longer available, the medical expert—as well as the ALJ—should
consider other sources of documentation, such as medical evidence pertaining to the
claimant’s condition outside the relevant period, as well as lay evidence. Id. at *3-4
(providing an example where a reviewing physician requested to comment on the
severity of the claimant’s impairment as of the alleged onset date rendered his opinion
based on the current severity of the claimant’s condition “together with the other
evidence relating to the impairment”).
As one court in the Eleventh Circuit has noted,
The Eleventh Circuit has not addressed SSR 83-20 in a published
decision. In an unpublished decision, the Eleventh Circuit has stated
SSR 83-20 is applicable only where the ALJ has made a finding of
disability “and it is then necessary to determine when the disability
began.” Caces v. Comm’r, Soc. Sec. Admin., [560 Fed. Appx. 936, 939
(11th Cir. Mar. 27, 2014)] (citation omitted); cf. Rojas v. Comm’r of Soc.
Sec., No. 2:11-cv-124-FtM-MRM, 2017 WL 2130078, at *10-11
(M.D. Fla. May 17, 2017) (applying SSR 83-20 where ALJ made no
finding of disability, but there was “strong evidence that [the plaintiff]
became disabled at some time”).
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“[C]ourts have generally interpreted SSR 83-20 to require that an ALJ
obtain the opinion of a medical expert when the medical evidence is either
inadequate or ambiguous as to the specific date of onset.” Powell v.
Astrue, No. 7:11-CV-105 (HL), 2013 WL 752961, at *4 (M.D. Ga.
Jan. 29, 2013) (quoting Nixon v. Astrue, No. 1:11-CV-2032-JSA,
2012 WL 5507310, at *4 (N.D. Ga. Nov. 14, 2012) ); see also Volley v.
Astrue, No. 1:07-CV-0138-AJB, 2008 WL 822192, at *12 (N.D. Ga.
Mar. 24, 2008); McManus v. Barnhart, No. 5:04-CV-67-OO-GRJ,
2004 WL 3316303, at *6 (M.D. Fla. Dec. 14, 2004) (“[T]he most logical
interpretation of SSR 83-20 is to apply it to situations where the ALJ is
called upon to make a retroactive inference regarding disability involving
a slowly progressive impairment, and the medical evidence during the
insured period is inadequate or ambiguous”).
Martinez v. Comm’r of Soc. Sec., Case No. 2:17-cv-152-FtM-CM, 2018 WL 4328217
at *4 (M.D. Fla. Sept. 11, 2018). An ALJ is required to obtain the assistance of a
medical advisor to determine the onset date of disability under SSR 83-20 “if: (1) the
claimant suffers from a slowly progressing impairment(s) of nontraumatic origin;
(2) there is strong evidence the claimant became disabled at some time; and (3) the
evidence during the relevant period is inadequate or ambiguous.” Id. at *6 (citing Rojas
v. Comm’r of Soc. Sec., Case No. 2:11-cv-124-FtM-MRM, 2017 WL 2130078, at *10
(M.D. Fla. May 17, 2017)).
B.
Parties’ Arguments
Plaintiff claims that the ALJ erred by assessing her alleged onset date because,
since she suffered from slowing progressive impairment, the ALJ needed to consult
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with a medical expert to determine her onset date, since the ALJ does not have the
medical expertise to make a determination of when a disability begins or
ends. [Doc. 14 at 11]. Since no traumatic event occurred that would allow for the
December 11, 2015 alleged onset date, Plaintiff submits that the ALJ not have opined
on the alleged onset date but should have had a medical expert at the hearing.
[Id. at 15-17].
The Commissioner responds that the ALJ complied with SSR 83-20, which does
not require that he obtain a medical expert regarding Plaintiff’s disability onset date.
[Doc. 15 at 5 (citing SSR 83-20, 1983 WL 31249, at *1)]. First, the Commissioner
argues that because SSR 83-20 states that an ALJ “should” call upon a medical expert
and HALLEX I-2-5-34(2) leaves it to the ALJ’s discretion, there is no requirement that
an ALJ seek a medical expert’s advice regarding alleged onset date. [Id. at 6-7 (citing
1983 WL 31249 at *3; HALLEX I-2-5-34, 1994 WL 637370 [(“An ALJ may need to
obtain an ME opinion, either in testimony at a hearing or in responses to written
interrogatories, when the ALJ . . . [n]eeds an expert medical opinion regarding the onset
of an impairment.”)]; Marceau v. Berryhill, No. 2:16-cv-0547-LSC, 2017 WL 3969729,
at *6 (N.D. Ala. Sept. 8, 2017); Bailey v. Chater, 68 F.3d 75, 79 (4th Cir. 1995))]. The
Commissioner argues that, when the medical evidence is adequate and unambiguous,
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as here, no medical expert is required.
[Id. at 7 (citing Grebenick v. Chater,
121 F.3d 1193, 1201 (8th Cir. 1997); Wellington v. Berryhill, 878 F.3d 867, 874 (9th Cir.
2017); Moncrief v. Astrue, 300 Fed. Appx. at 882; O’Neal v. Comm’r of Soc. Sec.,
No. 8:16-cv-495-T-JSS, 2017 WL 875789, at *6 (M.D. Fla. Mar. 6, 2017))].
Second, the Commissioner argues that, although Plaintiff cites the record to show
support for her alleged onset date, the ALJ considered this record and provided good
reasons for not fully crediting Plaintiff’s alleged limitations. [Doc. 15 at 12]. Lastly,
the Commissioner argues that the fact that Plaintiff cites to an extensive records
underscores how much medical evidence was before the ALJ from which to determine
an alleged onset date, thereby obviating the need for a medical expert. [Id. at 11-12
(citing Caballero v. Comm’r of Soc. Sec., No: 6:16-cv-1056-Orl-GJK,
2017 WL 1929708, at *4 (M.D. Fla. May 10, 2017); Goldsby v. Astrue, No. 2:11-CV03411-RDP, 2013 WL 1176179, at *5 (N.D. Ala. Mar. 18, 2013); Moncrief,
300
Fed.
Appx.
at
882;
Grebenick,
121
F.3d
at
1201;
O’Neal,
2017 WL 875789, at *6)].
Plaintiff replies that “nowhere in the defendant’s brief does the defendant point
to any medical evidence in the record that ties this date of December 11, 2015 to the
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ALJ’s decision to pick that as the onset date of disability.” [Doc. 16 at 1]. Plaintiff
also replies that HALLEX is not law, but the SSR is.33 [Id. at 2]
C.
Analysis
To be sure, the Commissioner’s determination of an onset date is far from an
exact science. Be that as it may, the standard for the Court is not whether the evidence
in the record could support Plaintiff’s interpretation of the facts or even the Court’s
33
Plaintiff is not exactly correct here as neither HALLEX nor the SSR are
binding law for this Court. Social Security Rulings are published under the authority
of the Commissioner of Social Security and are binding on all components of the
administrative process. See Sullivan v. Zebley, 493 U.S. 521, 530 n.9 (1990); see also
Tauber v. Barnhart, 438 F. Supp. 2d 1366, 1377 n.6 (N.D. Ga. 2006) (Story, J.) (citing
20 C.F.R. § 402.35(b)(1)). Although SSRs do not have the force of law, they are
entitled to deference so long as they are consistent with the Social Security Act and
regulations. Massachi v. Astrue, 486 F.3d 1149, 1152 n.6 (9th Cir. 2007); see also
Salamalekis v. Comm’r of Soc. Sec., 221 F.3d 828, 832 (6th Cir. 2000) (“If a Social
Security Ruling presents a reasonable construction of an ambiguous provision of the
Act or the agency’s regulations, we usually defer to the SSR.”); Minnesota v. Apfel,
151 F.3d 742, 748 (8th Cir. 1998) (“Social Security Rulings, although entitled to
deference, are not binding or conclusive.”); Pass v. Chater, 65 F.3d 1200, 1204 n.3
(4th Cir. 1995); Gordon v. Shalala, 55 F.3d 101, 105 (2d Cir. 1995); Andrade v. Sec’y
of Health and Human Servs., 985 F.2d 1045, 1051 (10th Cir. 1993).
The Eleventh Circuit has addressed HALLEX but has refrained from determining
whether it is binding on the Commissioner. See George v. Astrue, 338 Fed. Appx. 803,
805 (11th Cir. July 8, 2009). Other circuits have held that HALLEX is either not
binding on the Commissioner or that a violation of HALLEX is not reversible error
absent a showing of prejudice. See Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000);
Newton v. Apfel, 209 F.3d 448, 459-60 (5th Cir. 2000).
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interpretation, but instead, whether substantial evidence supports the Commissioner’s
findings. Mitchell, 771 F.3d at 782; Dyer, 395 F.3d at 1210; see 42 U.S.C. § 405(g).
Here, it is possible that Plaintiff’s limitations were a result of a slowly progressing
impairment (cirrhosis) or caused or aggravated by traumatic events such as her 2012
automobile accident or 2016 mugging (osteoarthritis). However, the onset date inferred
by the ALJ—which was before Plaintiff’s mugging but after her car
accidents—suggests he did not consider her impairments to result from these traumas.
Consequently, it appears that the ALJ considered Plaintiff’s impairments to be slowly
progressing and, as Plaintiff has not asserted otherwise, the Court will assume they
were slowly progressing.
The ALJ pointed out that Plaintiff was able to work for three months in early
2015, noting that that fact “does not tend to support the claim that she was disabled
from working.” [R24, n.1]. The ALJ also pointed to Plaintiff’s treatment records in
July 2015 and March 2016, in conjunction with Dr. Shih’s May 2016 consultative
examination, support the December 11, 2015 onset date. [R24-25]. However, there is
no mention whatsoever of any medical records between July 2014 and March 2016 to
support the December 11, 2015 onset date. [Id.].
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While Dr. Shih certainly opined that Plaintiff was disabled when he filled out the
form in May 2016 and checked a box that indicated that Plaintiff had or would have
these limitations for twelve months, it is unclear if or when he determined that
Plaintiff’s impairments began. [R1902]. As a result, it is not clear that the onset date
is supported by Dr. Shih’s report. In fact, the ALJ noted “apparent inconsistencies” in
Dr. Shih’s report, and immediately thereafter stated that
I have found the claimant’s cirrhosis and osteoarthritis are severe, and the
combination of her impairments led to my conclusion that the claimant
became disabled at or near December 11, 2015 (six months prior to the
consultative examination of Dr. Shih, which provides sufficient evidence
of disability).
[R25]. The fault with the ALJ’s decision is that he “does not specifically state how this
particular onset date was chosen or why the impairments became disabling on
[December 11, 2015].”
See Powell v. Astrue, No. 7:11-CV-105 (HL),
2013 WL 752961, at *5 (M.D. Ga. Jan. 29, 2013), adopted by 2013 WL 750045, at *1
(M.D. Ga. Feb. 27, 2013). The Court has reviewed the evidence of record and can find
“ ‘nothing contained [therein] indicating that [Plaintiff’s] condition worsened on [that
date].’ ”
John A. v. Comm’r, Soc. Sec. Admin., No. 3:17-CV-00141-RGV,
2019 WL 994970, at *14 (N.D. Ga. Feb. 19, 2019) (quoting Mahon v. Comm’r of Soc.
Sec., Case No. 8:16-cv-1462-T-JSS, 2017 WL 3381714, at *7 (M.D. Fla. Aug. 7,
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2017)) (alterations in quoted text added).
“Simply put, nothing happened on
[December 11, 2015],” Brothers. v. Astrue, No. 06 C 7088, 2011 WL 2446323, at *10
(N.D. Ill. June 13, 2011), that points to that date as the onset date, and the
Commissioner has not pointed to anything in the record to show otherwise. While the
Commissioner points to evidence that might direct a not-disabled finding before
December 11, 2015, [Doc. 15 at 9-10], the Commissioner’s argument that
“[s]ubstantial evidence further supports the ALJ’s finding that Plaintiff’s conditions
worsened in late 2015, to the point that she could work no more than a markedly
reduced range of sedentary work, [id. at 10 (citing [R24-25])], is not supported by the
record, since the very next citation concerns Plaintiff’s injuries sustained in the April
2016 mugging and post-April 2016 medical records. [Id. at 10-11]. As a result, the
ALJ’s determination that Plaintiff’s onset date is December 11, 2015 is not supported
by substantial evidence.34
34
The Court does not venture an opinion whether this error is clearly
harmless because neither party addressed it. The Court is not required to make
arguments on behalf of a party to litigation, especially a represented party, and it is not
inclined to do so in this case. See Aquila, Inc. v. C.W. Mining, 545 F.3d 1258, 1265 n.3
(10th Cir. 2008); see also Aikens v. Ingram, 652 F.3d 496, 506 (4th Cir. 2011) (“ ‘[I]t is
not the Court’s place to try to make arguments for represented parties.’ ” (quoting
Vazquez v. Cent. States Joint Bd., 547 F. Supp. 2d 833, 861 (N.D. Ill. 2008))). The
error may or not be harmless as Plaintiff applied for both DIB and SSI and her date last
insured for purposes of DIB was December 31, 2015. [R18]. If the ALJ erred and
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Accordingly, the Court REVERSES the Commissioner’s decision and
REMANDS this case to the Commissioner for further consideration of Plaintiff’s
claims consistent with this Order and Opinion.
VIII. CONCLUSION
In conclusion, the Commissioner’s decision is REVERSED AND REMANDED
for further consideration of Plaintiff’s application.
The Clerk is DIRECTED to enter judgment in favor of Plaintiff.
IT IS SO ORDERED and DIRECTED, this the 29th day of March, 2019.
Plaintiff’s onset date is before December 11, 2015, or after December 31, 2015, it will
alter the amount of benefits Plaintiff will receive. See SSR 83-20, 1983 WL 31249,
at *1 (“A claimant’s onset date can in many cases be ‘critical’ because ‘it may affect
the period for which the individual can be paid and may even be determinative of
whether the individual is entitled to or eligible for any benefits.’ ”).
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