Burgess v. Social Security Administration, Commissioner of et al

Filing 18

MEMORANDUM AND ORDER. The judgment of the Commissioner is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this memorandum and order. See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 11/28/2012. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

STEVEN BURGESS,
Plaintiff,
vs.

Case No. 11-4182-SAC

MICHAEL J. ASTRUE,
Commissioner of
Social Security,
Defendant.

MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security finding that plaintiff was
disabled as of July 15, 2009, but denying the plaintiff
disability insurance benefits and supplemental security income
payments prior to that date.

The matter has been fully briefed

by the parties.
I.

General legal standards
The court's standard of review is set forth in 42 U.S.C.

§ 405(g), which provides that "the findings of the Commissioner
as to any fact, if supported by substantial evidence, shall be
conclusive."

The court should review the Commissioner's

decision to determine only whether the decision was supported by
substantial evidence and whether the Commissioner applied the
correct legal standards.

Glenn v. Shalala, 21 F.3d 983, 984

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(10th Cir. 1994).

Substantial evidence requires more than a

scintilla, but less than a preponderance, and is satisfied by
such evidence that a reasonable mind might accept to support the
conclusion.

The determination of whether substantial evidence

supports the Commissioner's decision is not simply a
quantitative exercise, for evidence is not substantial if it is
overwhelmed by other evidence or if it really constitutes mere
conclusion.

Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

Although the court is not to reweigh the evidence, the findings
of the Commissioner will not be mechanically accepted.

Nor will

the findings be affirmed by isolating facts and labeling them
substantial evidence, as the court must scrutinize the entire
record in determining whether the Commissioner's conclusions are
rational.
1992).

Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan.

The court should examine the record as a whole,

including whatever in the record fairly detracts from the weight
of the Commissioner's decision and, on that basis, determine if
the substantiality of the evidence test has been met.

Glenn, 21

F.3d at 984.
The Social Security Act provides that an individual shall
be determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment
expected to result in death or last for a continuous period of
twelve months which prevents the claimant from engaging in
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substantial gainful activity (SGA).

The claimant's physical or

mental impairment or impairments must be of such severity that
they are not only unable to perform their previous work but
cannot, considering their age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy.

42 U.S.C. § 423(d).

The Commissioner has established a five-step sequential
evaluation process to determine disability.

If at any step a

finding of disability or non-disability can be made, the
Commissioner will not review the claim further.

At step one,

the agency will find non-disability unless the claimant can show
that he or she is not working at a “substantial gainful
activity.”

At step two, the agency will find non-disability

unless the claimant shows that he or she has a “severe
impairment,” which is defined as any “impairment or combination
of impairments which significantly limits [the claimant’s]
physical or mental ability to do basic work activities.”

At

step three, the agency determines whether the impairment which
enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled.

If

the claimant’s impairment does not meet or equal a listed
impairment, the inquiry proceeds to step four, at which the
agency assesses whether the claimant can do his or her previous
work; unless the claimant shows that he or she cannot perform
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their previous work, they are determined not to be disabled.

If

the claimant survives step four, the fifth and final step
requires the agency to consider vocational factors (the
claimant’s age, education, and past work experience) and to
determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 124 S. Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th

the analysis.
Cir. 1993).

At step five, the burden shifts to the

Commissioner to show that the claimant can perform other work
that exists in the national economy.

Nielson, 992 F.2d at 1120;

Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

The

Commissioner meets this burden if the decision is supported by
substantial evidence.

Thompson, 987 F.2d at 1487.

Before going from step three to step four, the agency will
assess the claimant’s residual functional capacity (RFC).

This

RFC assessment is used to evaluate the claim at both step four
and step five.

20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g);

416.920(a)(4), 416.920(e,f,g).
II.

History of case
On June 9, 2010, administrative law judge (ALJ) Guy E.

Taylor issued his decision (R. at 13-24).

Plaintiff alleges

that he has been disabled since August 21, 2008 (R. at 13).
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Plaintiff is insured for disability insurance benefits through
December 31, 2012 (R. at 16).

At step one, the ALJ found that

plaintiff has not engaged in substantial gainful activity since
plaintiff’s alleged onset date (R. at 16).

At step two, the ALJ

found that plaintiff had the following severe impairments:
borderline intellectual functioning; degenerative disc disease,
lumbar spine; major depressive disorder; anxiety disorder; and
Alzheimer’s disease (R. at 16).

At step three, the ALJ

determined that plaintiff’s impairments met listed impairment
12.02(C)(2)[organic mental disorders] as of July 15, 2009 (R. at
18).

Prior to July 15, 2009, plaintiff did not have impairments

that met or equaled a listed impairment (R. at 19).

After

determining plaintiff’s RFC prior to July 15, 2009 (R. at 20),
the ALJ determined at step four that plaintiff is unable to
perform any past relevant work (R. at 22).

At step five, the

ALJ determined that plaintiff, prior to July 15, 2009, could
perform other jobs that exist in significant numbers in the
national economy (R. at 22-23)

Therefore, the ALJ concluded

that plaintiff was not disabled (R. at 23).
III.

Did the ALJ err by failing to call a medical expert in

order to determine the onset date of disability?
On July 15, 2009, Dr. Swerdlow, a professor of neurology at
KU Medical Center, performed a consultative examination on the
plaintiff (R. at 393-396).

His report included the following:
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In formulation, this is a 54-year old righthanded man with approximately four years of
insidious, chronic, and progressive
cognitive decline that appears to affect
occupational and social functioning. His
exam reveals a potential problem with
retention memory, as well as lesser
weaknesses of the executive function,
language function, and praxis. His exam is
potentially consisting with a pattern of
primarily bilateral mesiotemporal
dysfunction, which raises the possibility
that he has a neurodegenerative disorder
such as Alzheimer’s disease. The
differential diagnosis includes other
potential causes of poor cognitive
performance, such as depression, trauma,
stroke, inflammation, and other degenerative
causes of cognitive decline.
(R. at 395).
In setting an onset date of July 15, 2009, the ALJ stated
the following:
The claimant was not diagnosed with early
Alzheimer’s disease until July 15, 2009,
which the undersigned accordingly finds to
be a significant demarcation point in his
progressive cognitive decline.
(R. at 19).

Later in his decision, the ALJ stated:

The undersigned finds no reason why he would
have been unable to perform unskilled,
repetitive tasks prior to July 15, 2009, and
the establishment of his disability as of
July 15, 2009 in fact is intended to give
him the benefit of the doubt.
(R. at 21-22).
Social Security Ruling (SSR) 83-20 sets forth the policy
and describes the relevant evidence to be considered when

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establishing the onset date of disability.

1983 WL 31249 at *1.

Once published, Social Security Rulings are binding on all
components of the Social Security Administration.
402.35(b)(1).

20 C.F.R. §

Factors relevant to the determination of

disability onset include the individual’s allegations as to when
the disability began, the work history, and the medical
evidence.

SSR 83-20, 1983 WL 31249 at *1; Reid v. Chater, 71

F.3d 372, 373-374 (10th Cir. 1995).

These factors are often

evaluated together to arrive at the onset date.

However, the

individual’s allegation or the date of work stoppage is
significant in determining onset only if it is consistent with
the severity of the condition(s) shown by the medical evidence.
SSR 83-20, 1983 WL 31249 at *1.

In determining the date of

onset of disability, the date alleged by the individual should
be used if it is consistent with all the evidence available.
1983 WL 31249 at *3.
With slowly progressing impairments, it is sometimes
impossible to obtain medical evidence establishing the precise
date an impairment became disabling.

Determining the proper

onset date can be particularly difficult when adequate medical
records are not available.
to infer the onset date.

In such cases, it will be necessary

1983 WL 31249 at *2.

In some cases,

it may be possible, based on the medical evidence to reasonably
infer that the onset of a disabling impairment occurred some
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time prior to the date of the first recorded medical
examination.

1983 WL 31249 at *3.

Ruling 83-20 thus recognizes

that it sometimes may be necessary to infer the onset date.

The

ALJ then should call on the services of a medical advisor at the
hearing.

A medical advisor need be called only if the medical

evidence of onset is ambiguous.

Reid, 71 F.3d at 374.

If the

medical evidence is ambiguous and a retroactive inference is
necessary, SSR 83-20 requires the ALJ to call upon the services
of a medical advisor to insure that the determination of onset
is based upon a legitimate medical basis.
F.3d 903, 911 (10th Cir. 2006);

Blea v. Barnhart, 466

Grebenick v. Chater, 121 F.3d

1193, 1200-1201 (8th Cir. 1997).
The onset date should be set on the date when it is most
reasonable to conclude from the evidence that the impairment was
sufficiently severe to prevent the individual from engaging in
substantial gainful activity for a continuous period of at least
12 months or result in death.

Convincing rationale must be

given for the date selected.

SSR 83-20, 1983 WL 31249 at *3.

Where medical evidence of onset is ambiguous, an ALJ is
obligated to call upon the services of a medical advisor.

In

the absence of clear evidence documenting the progression of the
claimant’s condition, the ALJ does not have the discretion to
forgo consultation with a medical advisor.
911-912.

Blea, 466 F.3d at

It is plaintiff’s position that the onset date is
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ambiguous, and that the ALJ failed to comply with SSR 83-20 by
calling a medical expert to infer an onset date.
On October 16, 2008, Dr. Kumar of Lawrence Neurology
Specialists performed a consultative examination on the
plaintiff (R. at 290-292).

His findings were as follows:

Significant short-term memory loss by
history that has affected his ability to
hold jobs. Currently he is unemployed. He
has a history of significant head injuries
in the past with one injury that put him in
a coma for 3 months in 1972. Memory
problems were noted then and have progressed
over the years. It is likely that he
suffered significant traumatic brain injury
and has cognitive loss due to it. He also
has significant mood disorder that can
affect his memory. He has been on treatment
for depression for the last 6 months with
improvement in mood but memory continues to
worsen…He wanted to know whether he has
Alzheimer’s dementia. I told him that it is
unlikely given his age but possible.
Frontotemporal dementias are another
concern. He clearly needs further workup.
(R. at 292, emphasis added).

Dr. Kumar referred plaintiff to

the memory clinic at KU Medical Center (R. at 292).

The

findings from the Alzheimer and Memory Clinic at KU Medical
Center on July 15, 2009 are set forth above.
SSR 83-20 states that the ALJ must give a “convincing
rationale” for the onset date.

The established onset date must

be fixed based on the facts and can never be inconsistent with
the medical evidence of record.

1983 WL 31249 at *3.

Kumar’s opinion on October 16, 2008 that plaintiff has
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Dr.

significant short-term memory loss that has affected his ability
to hold jobs establishes a clear ambiguity in the medical
evidence regarding the onset date.

However, the ALJ never even

mentioned this opinion by Dr. Kumar.1

In light of this evidence,

and the ALJ’s failure to consider it, the court finds that the
ALJ did not provide a convincing rationale to support his
finding that the onset date of disability was July 15, 2009, the
date that Alzheimer’s disease was diagnosed.

The critical date

is the onset of disability, not the date of diagnosis.

Swanson

v. Secretary of Health and Human Services, 763 F.2d 1061, 1065
(9th Cir. 1985); Dye v. Bowen, Case No. 86-1301-C, 1989 WL 159379
at *4 (D. Kan. Dec. 11, 1989).

The date of diagnosis and the

date of a disability’s onset need not be the same, particularly
when the evidence directly supports an inference regarding an
earlier onset date.

Dye, 1989 WL 159379 at *4.

Because the medical evidence of the onset of plaintiff’s
disability is ambiguous, this case shall be remanded in order
for the ALJ to consider the report and opinions of Dr. Kumar.
The ALJ shall also follow the provisions of SSR 83-20 and call a
1

An ALJ must evaluate every medical opinion in the record. Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir.
2004). This rule was recently described as a “well-known and overarching requirement.” Martinez v. Astrue, 2011
WL 1549517 at *4 (10th Cir. Apr. 26, 2011). Even on issues reserved to the Commissioner, including plaintiff’s
RFC and the ultimate issue of disability, opinions from any medical source must be carefully considered and must
never be ignored. Social Security Ruling (SSR) 96-5p, 1996 WL 374183 at *2-3. The ALJ “will” evaluate every
medical opinion that they receive, and will consider a number of factors in deciding the weight to give to any
medical opinion. 20 C.F.R. §§ 404.1527(c), 416.927(c). It is clear legal error to ignore a medical opinion. Victory
v. Barnhart, 121 Fed. Appx. 819, 825 (10th Cir. Feb. 4, 2005). Although plaintiff did not make this specific
objection, both plaintiff and defendant referred to Dr. Kumar’s findings in their briefs (Doc. 11 at 6, 11; Doc. 17 at
4, 5, 14). The findings of Dr. Kumar are clearly relevant to the issue raised by the plaintiff of whether the medical
evidence of onset is ambiguous and whether plaintiff should call a medical advisor.
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medical advisor unless the ALJ, after considering the opinions
of Dr. Kumar and the other evidence, can ascertain an onset date
that has a legitimate medical basis.

SSR 83-20, 1983 WL 31249

at *3.
IV.

Did the ALJ err in evaluating the credibility of the

testimony of plaintiff’s wife?
The court will not discuss this issue in detail because it
may be affected by the ALJ’s resolution of the case on remand
after considering the medical opinions of Dr. Kumar and, if
necessary, obtaining the services of a medical advisor pursuant
to SSR 83-20.

See Robinson v. Barnhart, 366 F.3d 1078, 1085

(10th Cir. 2004).
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is reversed and remanded pursuant to sentence four
of 42 U.S.C. § 405(g) for further proceedings consistent with
this memorandum and order.
Dated this 28th day of November, 2012, Topeka, Kansas.

s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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