Smits v. SSA

Filing 20

MEMORANDUM OPINION & ORDER: (1) 15 Motion for Summary Judgment is GRANTED. (2) 18 Motion for Summary Judgment is DENIED. (3) Case is REMANDED for further proceedings. (4) A judgment will be entered herewith. Signed by Judge Gregory F. VanTatenhove on 2/6/2015.(SCD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
BRENDA SMITS,
Plaintiff,
V.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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13-223-GFVT
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MEMORANDUM OPINION
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ORDER
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The plaintiff, Brenda Smits, seeks judicial review pursuant to 42 U.S.C. §§ 405(g)
and 1383(c), of an administrative decision of the Commissioner of Social Security
(“Commissioner”) denying her application for Child’s Insurance Benefits. The Court,
having reviewed the record and for the reasons stated herein, will grant Smits’ Motion for
Summary Judgment [R. 15], and deny that of the Commissioner [R. 18]. Accordingly,
this case will be remanded for further proceedings.
I
There is no question that Smits presently has a disabling visual impairment, and
has been so disabled since September 19, 1985. [Transcript (“Tr.”) 105.] Smits suffers
from optic atrophy which is a congenital disease that has negatively affected her vision.
[R. 15-1; Tr. 161, 256-260, 448.] Smits current application does not, however, concern
her present condition. Rather, she seeks Child’s Insurance Benefits (“CIB”) for the time
period between her eighteenth and twenty-second birthdays (beginning on November 21,
1966, and continuing through 1970). [Tr. 35, 99.] CIB benefits are available to
individuals who (1) are disabled (as defined by 12 U.S.C. § 423(d)) before they reach the

age of 22, and (2) are unmarried at the time of their application, if they are (3) the
dependent child of a person entitled to either old age, disability insurance benefits or are
fully insured at the time of their death. 42 U.S.C. § 402(d). Smits’ CIB claim is based on
the death of her father, Peter Smits, who was the qualifying wage earner and passed away
on July 17, 2005. [Tr. 99, 103.]
Smits filed her application for CIB in August, 2010. [Tr. 99-100.] It was initially
denied and then denied again upon reconsideration [Tr. 51-54, 56-58.] An
Administrative hearing was conducted before Administrative Law Judge (“ALJ”) Don C.
Paris on November 29, 2011. [Tr. 26-33.] On January 13, 2012, ALJ Paris issued a
decision denying CIB to Smits. [Tr. 18-22.]
In evaluating a claim of disability, an ALJ conducts a five-step analysis. See 20
C.F.R. § 404.1520.1 First, if a claimant is performing a substantial gainful activity, he is
not disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant does not have any
impairment or combination of impairments which significantly limit his physical or
mental ability to do basic work activities, then he does not have a severe impairment and
is not “disabled” as defined by the regulations. 20 C.F.R. § 404.1520(c). Third, if a
claimant’s impairments meet or equal one of the impairments listed in 20 C.F.R. Part

1

The Sixth Circuit summarized this process in Jones v. Comm’r of Soc. Sec., 336 F.3d 469 (6th Cir. 2003):
To determine if a claimant is disabled within the meaning of the Act, the ALJ employs a
five-step inquiry defined in 20 C.F.R. § 404.1520. Through step four, the claimant bears
the burden of proving the existence and severity of limitations caused by her impairments
and the fact that she is precluded from performing her past relevant work, but at step five
of the inquiry, which is the focus of this case, the burden shifts to the Commissioner to
identify a significant number of jobs in the economy that accommodate the claimant’s
residual functional capacity (determined at step four) and vocational profile.

Id. at 474 (internal citations omitted).

2

404, Subpart P, Appendix 1, he is “disabled.” 20 C.F.R. § 404.1520(d). Before moving
to the fourth step, the ALJ must use all the relevant evidence in the record to determine
the claimant’s residual functional capacity (RFC), which assesses an individual’s ability
to perform certain physical and mental work activities on a sustained basis despite any
impairments experienced by the individual. See 20 C.F.R. § 404.1520(e); 20 C.F.R. §
404.1545. Fourth, the ALJ must determine whether the clamant has the RFC to perform
the requirements of his past relevant work, and if a claimant’s impairments do not
prevent him from doing past relevant work, he is not “disabled.” 20 C.F.R. §
404.1520(e). The plaintiff has the ultimate burden of proving compliance with the first
four steps. Kyle v. Comm'r Of Soc. Sec., 609 F.3d 847, 855 (6th Cir. 2010). Fifth, if a
claimant’s impairments (considering his RFC, age, education, and past work) prevent him
from doing other work that exists in the national economy, then he is “disabled.” 20
C.F.R. § 404.1520(f).
In this case, ALJ Paris preliminarily determined that Smits had not attained the
age of 22 as of the alleged onset date of November 21, 1966. [Tr. 20.] At Step one, the
ALJ found that Smits had not engaged in substantial gainful activity since that alleged
onset date. [Tr. 20.] At Step two, the ALJ found that as of the date that Smits turned 22,
November 20, 1970, there were “no medical signs or laboratory findings to substantiate
the existence of a medically determinable impairment.” [Id.] Based on this lack of
evidence, ALJ Paris issued an unfavorable decision, finding that Smits was not disabled
during the relevant timeframe and, therefore, not eligible to receive CIB. [Tr. 22.] The
Appeals Council found no reason for review on May 15, 2013 [Tr. 1-6] and Smits now
seeks judicial review in this Court.
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II
This Court’s review is limited to whether the Commissioner applied the correct
legal standards and whether there is substantial evidence in the record to support the
ALJ’s decision. 42 U.S.C. § 405(g); Wright v. Massanari, 321 F.3d 611, 614 (6th Cir.
2003); Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997); Abbott v. Sullivan, 905 F.2d
918, 922 (6th Cir. 1990). “Substantial evidence” is “more than a scintilla of evidence but
less than a preponderance; it is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d
284, 286 (6th Cir. 1994) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). The
substantial evidence standard “presupposes that there is a zone of choice within which
[administrative] decisionmakers can go either way, without interference by the courts.”
Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (quoting Baker v. Heckler,
730 F.2d 1147, 1150 (8th Cir. 1984)).
In determining the existence of substantial evidence, courts must examine the
record as a whole. Cutlip, 25 F.3d at 286 (citing Kirk v. Sec’y of Health & Human Servs.,
667 F.2d 524, 535 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983)). However, a
reviewing court may not conduct a de novo review, resolve conflicts in the evidence, or
make credibility determinations. Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th
Cir. 2012) (citation omitted); see also Bradley v. Sec’y of Health & Human Servs., 862
F.2d 1224, 1228 (6th Cir. 1988). Rather, if the Commissioner’s decision is supported by
substantial evidence, it must be affirmed even if the reviewing court would decide the
matter differently, and even if substantial evidence also supports the opposite conclusion.

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See Ulman, 693 F.3d at 714; Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Her v.
Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).
Smits raises two arguments on appeal to this Court. First, she argues that the ALJ
erred by not applying Social Security Ruling 83-20, requiring her to provide
contemporaneous medical records to prove her disabling condition, and by failing to
order a consultative exam. [R. 15 at 4.] Second, Smits argues that the ALJ failed to give
proper weight to the opinions of her treating physicians, Dr. James Ferrell, and Dr.
Woodford VanMeter. [R. 15 at 6.]
A
1
To be entitled to CIB, amongst other things, an applicant must demonstrate that
they had a disability that began before they were 22 years old. 20 C.F.R. § 404.350(a)(5).
As explained earlier, there is no question that Smits has had a disabling visual
impairment since September 19, 1985. [Tr. 105.] This does not mean, however, that
Smits was necessarily disabled between 1966 and 1970. See Stringer v. Astrue, 465 F.
App'x 361, 365 (5th Cir. 2012) (“[A] finding that [the claimant] was disabled in October
1997 does not indicate that he was disabled before April 1, 1985, the date on which he
turned 22.”)
The ALJ’s consideration was limited to the time between November 21, 1966 and
November 21, 1970. [Tr. 28.] In deciding that Smits had failed to prove she suffered
from a disability between 1966 and 1970, the ALJ depended heavily on Social Security
Ruling 96-4p, which clarifies the social security administration’s policy on “the
evaluation of symptoms in the adjudication of claims for disability.” SSR 96-4p. The
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ruling explains that “[a] ‘symptom’ is not a ‘medically determinable physical or mental
impairment’ and that no symptom by itself can establish the existence of such an
impairment.” Id. When there is no “showing that there is a ‘medically determinable
physical or mental impairment,’ an individual must be found not disabled at step 2 of the
sequential evaluation process.” Id. It explains:
No symptom or combination of symptoms can be the basis for a finding of
disability, no matter how genuine the individual's complaints may appear to be,
unless there are medical signs and laboratory findings demonstrating the existence
of a medically determinable physical or mental impairment.
Id. Smits was unable to produce any “treatment provider notes or medical tests related to
the period in question,” but did submit statements from a cousin and a high school
teacher who knew her during the relevant timeframe. [Tr. at 21.] Smits also submitted
affidavits from her treating physicians but neither treated her between 1966 and 1970.
[Id.] The last treatment notes provided to the ALJ were from 1976. [Tr. 249-250.] The
ALJ determined that these statements and affidavits were insufficient, concluding that
without “medical signs or laboratory findings, including objective contemporaneous
medical records or vision acuity tests, to substantiate the existence of a medically
determinable impairment,” Smits could not establish that she was impaired between 1966
and 1970. [Id..] On this basis, he denied her claim.
Smits contends that “[t]here is no question that [she] is currently disabled because
of her visual impairments and [the fact that she] is presently receiving SSI benefits. [R.
15-1 at 5 (citing R. at 158.)] Smits, who was found disabled by the SSA in 1985 (when
she was 35 years old), faults the ALJ for not applying SSR 83-20—a rule that “state[s]
the policy and describe[s] the relevant evidence to be considered when establishing the
onset date of disability.” [R. 15 at 4-6; Titles II & Xvi: Onset of Disability, SSR 83-20,
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at *1 (S.S.A. 1983)]. That rule, which is to be applied only after there is a finding of
disability, provides in relevant part that:
With slowly progressive impairments, it is sometimes impossible to obtain
medical evidence establishing the precise date an impairment became disabling.
Determining 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. In such cases, it will be necessary to infer the onset date
from the medical and other evidence that describe the history and
symptomatology of the disease process.
Particularly in the case of slowly progressive impairments, it is not necessary for
an impairment to have reached listing severity (i.e., be decided on medical
grounds alone) before onset can be established.
SSR 83-20. Smits contends that her visual impairment is slowly progressive and that the
ALJ should have evaluated her situation using the SSR 83-20 analysis. [R. 15-1 at 5.]
Consistent with this provision, Smits argues the ALJ should have also sought the advice
of a medical examiner to aid him in determining the onset date. [Id. at 6.]
The ALJ did not apply SSR 83-20. As noted above, he relied heavily on the
absence of objective medical evidence from the alleged disability period, even noting in
his decision that “the claimant confirmed during the hearing that she is unable to produce
any treatment provider notes or medical tests relating to the period in question.” [Tr. 21.]
In its motion for summary judgment, the SSA contends that the ALJ was correct in not
applying SSR 83-20 because, “SSR 83-20 relates to cases where disability has been
established, and the date of onset has yet to be determined.” [R. 18 at 4.] They argue
that because “the ALJ concluded [Smits] did not establish she had a medically
determinable impairment before Age 22,” the ALJ did not find Smits disabled during the
relevant timeframe, and thus SSR 83-20 did not apply. [Id.] In the commissioner’s eyes,
if the ALJ applies SSR 83-20, then he would have been putting the cart before the horse.
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2
Only after an ALJ finds a claimant disabled, may they apply SSR 83-20 to
determine an onset date. See Key v. Callahan, 109 F.3d 270, 274 (6th Cir. 1997) (“Since
there was no finding that the claimant is disabled as a result of his mental impairment or
any other impairments or combination thereof, no inquiry into onset date is required.”);
See also Seeley v. Comm'r of Soc. Sec., 2015 WL 305322, at *5 (6th Cir. Jan. 23, 2015);
Scheck v. Barnhart, 357 F.3d 697, 701 (7th Cir.2004) (“The ALJ did not find that Scheck
was disabled, and therefore, there was no need to find an onset date. In short, SSR 83–20
does not apply.”). As explained, the fact that Smits has previously been found disabled is
not disputed. In Smits’ mind, the previous finding of disability is sufficient to trigger the
application of SSR 83-20. The Commissioner disagrees, arguing that because there was
no finding of disability in the instant case, SSR 83-20 does not apply. The question
presented herein is whether, as the commissioner argues, the disability finding must be in
the same proceeding or if a prior disability determination (i.e., Smits’ 1985 disabiliity
finding) is sufficient to trigger the application of SSR 83-20. Neither party directly
addresses the above, narrowly-framed issue.
While not cited by the parties, the Court notes that many other courts have
addressed this issue. In Beasich v. Comm'r of Soc. Sec., the Plaintiff appealed a district
court’s decision denying him Child’s Insurance Benefits for the years 1984-1988. 66 F.
App'x 419 (3d Cir. 2003). Plaintiff had applied for both Supplemental Security Income
(“SSI”) benefits and Child’s benefits at the same time. Ultimately, the Plaintiff was
granted SSI benefits but, because there was “insufficient information in the record to
determine his condition between the ages of 18 to 22 years, the SSA denied his claim for
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disabled adult child's benefits.” Id. at 421. The Plaintiff complained that it was error for
the ALJ not to apply SSR 83-20’s analytical framework for determining a disability onset
date. Id. at 432. The Third Circuit agreed:
Here there was no dispute that, in the context of a separate application for SSI
benefits, Beasich was determined to have been “disabled” as of August 1, 1996,
by his psychiatric condition that was the result of his head injury in 1981. In view
of that earlier SSI disability finding, the task of the ALJ in the context here
was to determine onset—i.e., when Beasich's impairments first became
disabling. An earlier onset date assessment is mandated when a claimant already
has been found disabled and alleges an earlier disability onset date.[]
Id. at 432-33 (emphasis added).
A similar situation arose in Plumley v. Astrue, where the claimant was found
disabled and eligible for SSI benefits on July 1, 1998. 2010 WL 520271, at *1 (D. Vt.
Feb. 9, 2010). Eight years later, the claimant filed a second application, this time for
CIB. Id. The ALJ denied the application, finding that the claimant was not disabled
prior to February 15, 1981 (the date the claimant turned 22). Id. The District Court
remanded the case, explaining:
In cases like this, where a claimant with an alleged disability onset date
preceding her 22nd birthday files an application for adult child's benefits,
and has already been found disabled under another title of the Social
Security Act but for the period postdating her 22nd birthday, SSR 83–20
requires the ALJ to determine the onset date of disability.[]
Id., at *5 (emphasis added); see also Falconi v. Astrue, 2012 WL 5381833, at *4 (D. Vt.
Nov. 1, 2012) (“In cases like this, where a claimant has already been found disabled
under another title of the Social Security Act, SSR 83–20 requires the ALJ to determine
the onset date of disability and provides an analytical framework for determining that
date.”) (citations omitted); Fontaine v. Astrue, 2007 WL 3023611, at *4 (D. Me. Oct. 12,
2007) aff'd, 2007 WL 3197285 (D. Me. Oct. 25, 2007) (“SSR 83-20 does not apply

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unless and until a plaintiff has been determined to be disabled (for example, as the result
of a grant of Supplemental Security Income (“SSI”) benefits, eligibility for which is not
dependent on acquisition of insured status.”) (citations omitted).
District Courts in this Circuit have applied similar reasoning when confronted
with the issue. For example, In Houston v. Comm'r of Soc. Sec., an ALJ considered the
plaintiff’s applications for both SSI and CIB, and concluded that the claimant was
disabled as of March, 2007 for purposes of SSI but that there was insufficient evidence to
prove a disability prior to the claimant’s twenty-second birthday. 2011 WL 6152992, at
*1 (E.D. Mich. Sept. 30, 2011) report and recommendation adopted, 2011 WL 6152982
(E.D. Mich. Dec. 9, 2011). The commissioner argued that, because medical evidence is a
prerequisite to a finding of disability under the Act, and because the ALJ found no
medical evidence to support a finding of disability before the claimant turned 22, that the
ALJ correctly denied the CIB claim under SSR 96-4p. Id. at *11. The district court
disagreed, explaining that the ALJ had made a finding of disability (with regard to the
SSI claim) and, therefore, erred by not operating within the framework laid out in SSR
83-20 in evaluating the CIB claim. Id. at *11-12.
A similar scenario played out again in Williams v. Comm'r of Soc. Sec., where the
claimant was found disabled for purposes of receiving SSI benefits in January of 2007,
but did not apply for disabled adult child’s benefits until June 2009. 2014 WL 822191, at
*1 (E.D. Mich. Feb. 10, 2014) report and recommendation adopted, 2014 WL 822489
(E.D. Mich. Mar. 3, 2014). Again, because there was a previous finding of disability, the
Court found that the ALJ should have applied the framework in SSR 83-20. Id. at *9-10.
In Martin v. Comm'r of Soc. Sec., the Court again considered whether a claimant, who
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had been “previously found disabled for the purpose of receiving SSI benefits” in 1986,
was eligible to receive adult child’s benefits for a period before November 25, 1979.
2014 WL 1048150, at *15 (E.D. Mich. Mar. 18, 2014). Recognizing that a finding of
disability in 1986 was not determinative of whether the claimant was disabled in 1979,
the Court determined that the ALJ should have applied SSR 83-20 to determine the
appropriate onset date:
contrary to the assertion of the Commissioner, the ALJ is required to follow the
framework set forth in SSR 83–20, even when the ALJ has found at step two of
the DAC proceeding that the claimant did not have a medically determinable
impairment during the alleged disability period because of a lack of objective
medical evidence establishing the existence of an impairment during that period,
if the claimant has already been found disabled under another title of the Social
Security Act.
Id., at *15.
The aforementioned cases are on-point and collectively hold that ALJs who are
reviewing applications for CIB, subsequent to an earlier case in which the SSA has made
a finding of disability, are bound to the agency’s prior disability determination. Based on
these cases, the ALJ need not make a separate disability determination at the time the
claimant files for CIB, but instead should only consider the appropriate onset date.
3
Social Security Rule 83-20 fails to explicitly address whether the prerequisite
finding of disability must be in the case instantly before the ALJ, or if a previous finding
of disability is sufficient to trigger its application. For a number of reasons, the
Commissioner’s position has some merit. First, the ALJ is only to consider evidence
presented in the claimant’s claim file. See 20 C.F.R. § 404.1520 (3) (“We will consider
all evidence in your case record when we make a determination or decision whether you
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are disabled.”). Because Smits’ present claim for CIB is separate and apart from her
1985 disability claim, it is not clear why the ALJ should be bound by this earlier finding,
although there is no readily discernible reason why a file should be limited to one claim.
Second, the approach lauded by Smits seems to take ALJs out of the five-step sequential
process, which ALJ’s are bound to follow, without any clear indication that such a detour
is intended. See 20 C.F.R. § 404.1520. If ALJs are, in fact, supposed to defer to past
findings of disability for purposes of applying SSR 83-20 then this could easily be made
clear. For example, the following one line could be incorporated into the Act: “When
evaluating a claim for Child Insurance Benefits, if the claimant has already been found
disabled by another title of the Social Security Act, then the ALJ is required to follow the
SSR 83-20 framework even where the ALJ finds that the claimant did not have a
medically determinable impairment during the alleged disability period.” The regulations
have no such rule. Instead, the language of SSR 83-20 provides that ALJs are
responsible for both making a disability determination and establishing an onset date.
See SSR 83-20 at *1 (“In addition to determining that an individual is disabled, the
decisionmaker must also establish the onset date of disability.”) Third, the Court notes
that a distinct process exists to amend an onset date.2
Smits’ position resonates for a different reason. Since she has already been found
disabled, going through the entire process again seems to put form over substance. Is it

“A change in the alleged onset date may be provided in a Form SSA-5002 (Report of Contact), a
letter, another document, or the claimant's testimony at a hearing.” Titles II & Xvi: Onset of
Disability, SSR 83-20 (S.S.A. 1983). The Court makes no representations about whether this process
would have been available to Smits at the time of her application for CIB benefits or whether it
applies to Smits in this situation, but only notes the alternative method of amending an onset date
exists.
2

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not more efficient to answer the question of when her disability began, rather than to go
back and reconsider whether there is a disability at all?
While the Court finds the Commissioner’s position understandable, other Courts
have uniformly and unambiguously disagreed with it. The Government, having failed to
even recognize the aforesaid cases, has certainly not either rebutted or distinguished
them. In light of the record before this Court, and the significant case law support Smits’
view, the case will be remanded to the ALJ to apply the SR 83-20 framework.
While “medical evidence serves as the primary element in the onset
determination” under SSR 83-20, the “absence of contemporaneous medical records does
not preclude a finding of disability.” Houston, 2011 WL 6152992, at *12. In the case at
hand, the ALJ based his opinion on the fact that “there [were] no medical signs or
laboratory findings, including objective contemporaneous medical records or vision
acuity tests, to substantiate the existence of a medically determinable impairment.” [Tr.
21.] Quite understandably, because the ALJ did not attempt to apply SSR 83-20, his
process does not comport with SSR 83-20’s directive. On remand, the ALJ is to apply
SR 83-20 and, if necessary, a medical adviser shall be called upon to advise the ALJ on
Smits’ onset date. See SSR 83-20 at *3.
Finally, the Court notes that some clarification on the above presented issue
would be very helpful. While the case law has uniformly developed in the direction
described herein, this Court has serious doubts as to whether that evolution is consistent
with the intent of the Act’s authors. Congress and the Commissioner should consider
clarifying the issue for the sake of claimants, administrative law judges and the courts.

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III
The Court finds that the ALJ erred by not applying the correct legal standard
while considering Smits CIB claim. In light of this finding, it is unnecessary to consider
Smits’ remaining arguments at this time. The case will be remanded pursuant to 42
U.S.C. § 405(g) and, on remand, the ALJ is to comply with those procedures set out in
SSR 83-20, and review the relevant evidence of record to determine whether the onset
date of Smits’ disability was prior to her twenty-second birthday.
ACCORDINGLY, and the Court being sufficiently advised, it is hereby ordered
as follows:
(1) Plaintiff’s motion for Summary Judgment [R. 15] is GRANTED.
(2) Defendant’s Motion for Summary Judgment [R. 18] is DENIED.
(3) The case is REMANDED for further proceedings.
(4) A judgment will be entered contemporaneously herewith.

This 6th day of February, 2015

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