Warneka v. US Social Security Administration, Acting Commissioner

Filing 15

\\\ORDER granting 10 Motion to Reverse Decision of Commissioner; denying 12 Motion to Affirm Decision of Commissioner. So Ordered by Judge Paul J. Barbadoro.(jna) Modified on 3/31/2015 to add: \\\ (js).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Trudy E. Warneka
v.

Case No. 14-cv-00022-PB
Opinion No. 2015 DNH 071

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration
MEMORANDUM AND ORDER
Trudy Warneka seeks judicial review of a ruling by the
Social Security Administration (“SSA”) denying her application
for Disability Insurance Benefits (“DIB”).

Warneka claims that

the Administrative Law Judge (“ALJ”) erred in failing to call a
medical advisor to assist him in determining the onset date of
her claimed disability.

For the reasons set forth below, I

vacate the decision of the Commissioner and remand for further
administrative proceedings.

I.
A.

BACKGROUND

Stipulated Facts
Pursuant to Local Rule 9.1, the parties have submitted a

joint statement of material facts, which is part of the court’s
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record (Doc. No. 14).

The facts relevant to the disposition of

this matter are discussed below.
B.

Procedural History
Warneka, a former medical assistant, was 45 years old when

she filed an application for DIB.

She primarily claimed that

her migraines, depression, anxiety, obesity, degenerative disc
disease, and chronic shoulder pain were disabling conditions as
of her date last insured (“DLI”).

She alleged a disability

onset date of May 15, 2001, which was her last day of work.
DLI was December 31, 2003.

Her

Warneka’s application was initially

denied on July 17, 2009 because of lack of medical evidence
disability before her DLI.

of

After the initial denial, Warneka

submitted extensive medical records dating back to 1999.
On November 2, 2010, ALJ Robert Klingebiel held a hearing
on Warneka’s claim.
2010.

He found her not disabled on December 15,

The Decision Review Board vacated ALJ Klingebiel’s

decision and remanded.

On May 17, 2012, ALJ Paul Martin held a

hearing on Warneka’s claim.

He issued an unfavorable decision

on May 25, 2012, which is the decision being appealed here.
In his decision, ALJ Martin followed the five-step
sequential evaluation process.

See 20 C.F.R. § 404.1520(a)(4).

At Step One, he found that Warneka did not engage in substantial
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gainful activity between her alleged onset date and her DLI.

At

Step Two, he determined that her migraines were a severe
impairment through her DLI but that her mental health
limitations and her other physical impairments were not severe
as of her DLI.

At Step Three, he found that Warneka’s

impairments did not meet or medically equal the severity of a
listed impairment.
ALJ Martin determined that Warneka had the residual
functional capacity (“RFC”) through her date last insured to
perform “medium work1 . . . except she can perform all postural
activities on an occasional basis and can reach overhead only
occasionally.”

Tr. at 22.

In determining her RFC, the ALJ

noted evidence that conflicted with Warneka’s reports of
disabling migraines.

He gave no weight to Warneka’s treating

physicians’ opinions because they “do not indicate that the
claimant’s current limitations date back to 2003.”

Tr. at 25.

The ALJ gave “some weight” to the opinion of state agency
consultant Dr. Charles Meader, who opined that Warneka was

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“Medium work involves lifting no more than 50 pounds at a time
with frequent lifting or carrying of objects weighing up to 25
pounds. If someone can do medium work, [the ALJ] determine[s]
that he or she can also do sedentary and light work.” 20 C.F.R.
§ 404.1567(c).
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capable of “light exertion work”2 and who wrote his opinion
before Warneka submitted her extensive past medical records.
Tr. at 25; Doc. No. 14 at 1, 22.

Finally, at Step Four, the ALJ

found that Warneka was capable of performing her past relevant
work as of her DLI, and therefore was not disabled before her
DLI.

II.

STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), I am authorized to review the
pleadings submitted by the parties and the administrative record
and enter a judgment affirming, modifying, or reversing the
“final decision” of the Commissioner.

My review “is limited to

determining whether the ALJ used the proper legal standards and
found facts [based] upon the proper quantum of evidence.”

2

Ward

“Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be very little, a job
is in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered
capable of performing a full or wide range of light work, [the
claimant] must have the ability to do substantially all of these
activities. If someone can do light work, [the ALJ]
determine[s] that he or she can also do sedentary work, unless
there are additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.” 20
C.F.R. § 404.1567(b).
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v. Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000).
Findings of fact made by the ALJ are accorded deference as
long as they are supported by substantial evidence.

Id.

Substantial evidence to support factual findings exists “‘if a
reasonable mind, reviewing the evidence in the record as a
whole, could accept it as adequate to support his conclusion.’”
Irlanda Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765,
769 (1st Cir. 1991) (per curiam) (quoting Rodriguez v. Sec’y of
Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)).

If

the substantial evidence standard is met, factual findings are
conclusive even if the record “arguably could support a
different conclusion.”

Id. at 770.

Findings are not

conclusive, however, if they are derived by “ignoring evidence,
misapplying the law, or judging matters entrusted to experts.”
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam).
The ALJ is responsible for determining issues of credibility and
for drawing inferences from evidence in the record.
Ortiz, 955 F.2d at 769.

Irlanda

It is the role of the ALJ, not the

court, to resolve conflicts in the evidence.

III.

Id.

ANALYSIS

Warneka argues that the ALJ erred by failing to call a
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medical advisor in accordance with Social Security Ruling
(“SSR”) 83-20.3

SSR 83-20 requires an ALJ to call a medical

advisor in some circumstances in order to determine the onset
date of a claimant’s impairments.
(Jan. 1, 1983).

See SSR 83-20, 1983 WL 31249

She also relies on Wilson v. Colvin, which

interpreted SSR 83-20.

See Wilson v. Colvin, 17 F. Supp. 3d

128, 138-43 (D.N.H. 2014).

In response, the Commissioner argues

that even if SSR 83-20 applies to this case, the ALJ was not
required to call a medical advisor because contemporaneous
medical evidence demonstrates that Warneka was not disabled
before her DLI.4

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Warneka also argues that the ALJ erred by failing to find her
depression, anxiety, obesity, degenerative disc disease, and
chronic shoulder pain to be severe; by finding her capable of
performing “medium” work; and by finding her capable of
performing her past relevant work as a medical assistant.
Because I agree with her argument about SSR 83-20 and vacate the
Commissioner’s decision on that basis, I do not address her
other arguments.
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The Commissioner also contends that the SSA need not follow
district court opinions when such opinions conflict with the
SSA’s interpretation of a SSR and there has been no contrary
holding by the First Circuit. See Doc. No. 12-1 at 3 (citing 20
C.F.R. § 404.985; SSR 96-1p, 1996 WL 374182, at *2). Here, she
argues that this court’s holding in Wilson was contrary to the
SSA’s interpretation of SSR 83-20, and therefore the SSA will
not follow Wilson. See id. The Commissioner does not, however,
argue that I must give deference to the SSA’s interpretation.
Specifically, she makes no argument that Auer deference is
applicable to the SSA’s interpretation of a SSR. See Auer v.
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A.

SSR 83-20
SSR 83-20 relates to the determination of a disability’s

onset date.

See SSR 83-20, 1983 WL 31249.

For “disabilities of

nontraumatic origin,” SSR 83-20 states that the ALJ’s
determination of a disability onset date “involves consideration
of the applicant’s allegations, work history, if any, and the
medical and other evidence concerning impairment severity.”
at *2.

Id.

The applicant’s allegations are the “starting point,”

the day the impairment caused the claimant to stop working is
“frequently of great significance,” and medical evidence “serves
as the primary element in the onset determination.”

Id.

In some cases, when precise evidence is not available and
an onset date must be inferred, an ALJ must call on a medical
advisor to assist in determining the onset date.

Id. at *3.

SSR 83-20 provides in part:
In some cases, it may be possible, based on the
medical evidence to reasonably infer that the onset of
Robbins, 519 U.S. 452, 461 (1997) (holding that an agency’s
interpretation of its own regulation is entitled to deference as
long as it is not “plainly erroneous or inconsistent with the
regulation”). While I agree that Wilson is not precedent that
binds the SSA in other cases, I must decide this case in
accordance with the law as I understand it. The SSA has not
given me reason to reconsider Wilson. Accordingly, I do not
address the SSA’s contention that Wilson was incorrectly
decided.
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a disabling impairment(s) occurred some time prior to
the date of the first recorded medical examination,
e.g., the date the claimant stopped working. How long
the disease may be determined to have existed at a
disabling level of severity depends on an informed
judgment of the facts in the particular case.
This
judgment, however, must have a legitimate medical
basis.
At the hearing, the administrative law judge
(ALJ) should call on the services of a medical advisor
when onset must be inferred.
. . . 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] (or gainful activity)
for a continuous period of at least 12 months or
result in death.
Convincing rationale must be given
for the date selected.
Id. (emphasis added).
When an ALJ determines that a claimant suffers from a
present disability but the onset of the disability must be
inferred from ambiguous evidence, courts agree that the ALJ must
consult with a medical advisor before denying a claim for
benefits.

Ryan v. Astrue, 2008 DNH 148, 17-18 (citing Walton v.

Halter, 243 F.3d 703, 709 (3d Cir. 2001); Grebenick v. Chater,
121 F.3d 1193, 1201 (8th Cir. 1997); Bailey v. Chater, 68 F.3d
75, 79 (4th Cir. 1995).

Courts disagree, however, as to whether

an ALJ must consult with a medical advisor when the ALJ skips
over the question of present disability and denies a disability
claim by determining that a claimant was not disabled as of her
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date last insured.

Id. at 18.

In such cases, this court has

repeatedly held that an ALJ must consult a medical advisor when
the onset date of a disability is ambiguous.

See Fischer v.

Colvin, 2014 DNH 227, 17; Wilson, 17 F. Supp. 3d at 140; Ryan,
2008 DNH 148, 17-20.
Requiring an ALJ to consult with a medical advisor when the
ALJ makes no finding regarding present disability supports the
policy that SSR 83-20 advances.

Specifically, a disability

onset date can be an extremely difficult determination to make
when a claimant suffers from a progressive impairment.
2008 DNH 148, 19.

Ryan,

That difficulty does not disappear, however,

when an ALJ bypasses a determination of present disability and
instead denies a disability claim based on a finding that the
claimant was not disabled as of her DLI.

Id.

Accordingly, SSR

83-20 should not be limited to cases in which the ALJ makes a
determination of present disability before addressing the onset
date of the disability.
B.

Id.

Application of SSR 83-20
Here, although far from conclusive, Warneka has produced

evidence to trigger the requirement that the ALJ call on the
assistance of a medical advisor.

Rather than address the issue

of present disability, the ALJ simply determined that Warneka
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was not disabled as of her DLI.

Where, as here, there is enough

evidence that a medical advisor could plausibly find that the
claimant was disabled before the DLI, the ALJ cannot bypass the
determination of current disability without calling on a medical
advisor.
There is evidence in the record showing that Warneka is
presently disabled.

In June 2010, Dr. Birgit Houston completed

a physical RFC assessment, noting limitations in almost all
categories, and concluding that Warneka was not capable of
gainful employment on a sustained basis.

Tr. at 1193-96.

Similarly, Dr. Mimi Thein completed a mental RFC assessment in
June 2010, noting clinical findings of “psychotic symptoms,”
“persistent depression,” and “suicidal ideation (no intent or
plan),” and noting limitations in almost all work-related
activities.

Tr. at 1197-1201.

Warneka has also produced evidence that she suffered from
disabling conditions before her DLI.

The record shows that she

met with Dr. Elizabeth Blencowe, a psychiatrist, starting in
February 1999 and thereafter on an approximately quarterly basis
for the duration of the insured period.

Tr. at 1209-17.

During

that time, Dr. Blencowe prescribed various medications for
Warneka’s depression and anxiety.
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Tr. at 1209-17.

At the

hearing, Warneka testified that in the time before her last day
of work, she “was calling in sick because . . . [she] was so
depressed [she] couldn’t get out of bed.”

Tr. at 45.

Warneka has also produced medical evidence that supports
her contention that her migraines were disabling before her DLI.
Specifically, on April 13, 2001, Dr. Chandra Tokala wrote that
Warneka was experiencing almost daily migraines.

Tr. at 805.

At that time, Warneka reported to Dr. Tokala that “any kind of
activity” exacerbated the pain of her migraines.

Tr. at 805.

Furthermore, in 2011, Dr. Birgit Houston wrote, “I have taken
care of Trudy Warneka for many years.

During the years 2000 and

2001, she suffered from frequent migraine headaches, which led
to frequent absenteeism from work for periods of time up to
several days.

She has continued to have migraine headaches

since leaving her employment.”

Tr. at 1273.

In fact, in

finding her migraines to be severe, the ALJ noted that they
“caused more than mild work related limitations during the
period at issue.”

Tr. at 20.

The Commissioner argues that regardless of any pre-DLI
evidence of Warneka’s migraines, there is limited evidence that
migraines continued to affect her ability to work through the
date of the hearing.

The ALJ, however, made no finding with
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respect to Warneka’s current conditions.

Had the ALJ determined

that Warneka’s conditions (including her migraines) were not
disabling as of the hearing, he could have denied her claim on
that basis.

See Rossiter v. Astrue, 2011 DNH 115, 10 (“When a

claimant suffering from a progressive impairment is not even
disabled by the time of the hearing, there is no reason for the
ALJ to consult a medical expert to decide whether the claimant
was disabled at some earlier point.”).

Although there is

limited evidence of migraines affecting her current functioning,
there is ample evidence of other conditions that, in combination
with her migraines, significantly affect her current
functioning.

Because the ALJ opted to bypass the issue of

present disability, however, SSR 83-20 required him to call on a
medical advisor.
To be sure, the record also contains evidence that
conflicts with Warneka’s contentions.
at 803, 908).

See Tr. at 24 (citing Tr.

It is precisely in this kind of situation,

however, where it is necessary for an ALJ to call on a medical
advisor to assist in reviewing ambiguous evidence.

On remand,

the ALJ is free to conclude that Warneka is not entitled to
benefits, but only if he first (1) finds on the basis of
substantial evidence that she is not presently disabled, or (2)
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relies on the opinion of a medical advisor to find that Wilson
was not disabled prior to her DLI.

IV.

CONCLUSION

For the foregoing reasons, I deny the Commissioner’s motion
to affirm (Doc. No. 12) and grant Warneka’s motion to reverse
(Doc. No. 10).

Pursuant to sentence four of 42 U.S.C. § 405(g),

I remand the case to the Social Security Administration for
further proceedings consistent with this decision.
SO ORDERED.

/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
March 31, 2015
cc:

Janine Gawryl, Esq.
Robert J. Rabuck, Esq.

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