Alton v. US Social Security Administration, Acting Commissioner

Filing 17

///ORDER granting 10 Motion to Reverse Decision of Commissioner to the extent that the case is remanded to the Acting Commissioner for further proceedings; denying 14 Motion to Affirm Decision of Commissioner. Clerk shall enter judgment and close the case. So Ordered by Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Pamela Alton
v.

Civil No. 14-cv-41-LM
Opinion No. 2015 DNH 044

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration

O R D E R
Pursuant to 42 U.S.C. § 405(g), Pamela Alton moves to
reverse the Acting Commissioner’s decision to deny her
application for Social Security disability insurance benefits,
or DIB, under Title II of the Social Security Act, 42 U.S.C. §
423.

The Acting Commissioner, in turn, moves for an order

affirming her decision.

For the reasons that follow, this

matter is remanded to the Acting Commissioner for further
proceedings consistent with this order.
Standard of Review
The applicable standard of review in this case provides, in
pertinent part:
The [district] court shall have power to enter, upon
the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without
remanding the cause for a rehearing. The findings of
the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive
. . . .

42 U.S.C. § 405(g) (setting out the standard of review for DIB
decisions).

However, the court “must uphold a denial of social

security . . . benefits unless ‘the [Commissioner] has committed
a legal or factual error in evaluating a particular claim.’”
Manso-Pizarro v. Sec’y of HHS, 76 F.3d 15, 16 (1st Cir. 1996)
(quoting Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).
Background
The parties have submitted a Joint Statement of Material
Facts (document no. 16).

That statement is part of the court’s

record and will be summarized here, rather than repeated in
full.
Born in 1972, Pamela Alton began suffering from depression
and anxiety as a teenager.

While in college, Alton was admitted

to a hospital for mental illness.
started abusing alcohol.

At the age of 27, Alton

Thereafter she became homeless.

At

her hearing, Alton testified that she abused alcohol “to numb;
to run away; to hide.”

Administrative Transcript (hereinafter

“Tr.”) 88.
In April 2003, at the age of 30, Alton was hospitalized and
diagnosed with severe recurrent major depression.

Upon

admission to the hospital, Alton stated that she had abused
alcohol in the past but had been sober for the last several
months.

Contemporaneous testing showed no alcohol in her blood.

2

In July 2003, Alton was hospitalized because she had
“escalating feelings that she could not maintain safety, [and
was] thinking of many ways to harm herself.”

Tr. 892.

Alton

again reported that she had abused alcohol in the past, but
denied current abuse.

Contemporaneous testing again showed no

alcohol in her blood.

In a discharge note, one of her treating

physicians wrote that
[w]hile the patient was felt to be depressed, this was
felt to be somewhat manipulative on the patient’s
part. Staff worked with the patient trying to get
plans in place, and additional information from the
shelter she was at was obtained, indicating that she
had abused alcohol, broken several rules, and was felt
to be not motivated to be helping herself.
Tr. 894-95.
In January 2004, Alton was again hospitalized for
depression and suicidal thoughts.

Her treating physician wrote

that the “[g]oal of this admission [was] to provide [Alton with]
a safe environment to contain her suicidal [thoughts].”

Tr.

953.
At her hearing, Alton testified that between 2005 and 2008
she was abusing alcohol, but that there were several periods
during that time when she was able to become sober and maintain
sobriety for up to four months.

She testified that during those

periods of sobriety she was “a lot healthier . . . . was able to
do a lot more. . . . could cook and clean more and look after
[herself] and [her] laundry and had a better attitude about life
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and. . . . could dance and things like that.”

Tr. 76-77.

Alton

further testified that during that time she
was functioning, but in a very small manner. [She]
did not go out. [She] did not have a social life.
Basic day-to-day things like just getting laundry done
and dishes done and things [] were [a] big,
insurmountable pain, like they are now. . . . [she]
would just sort of exist day-to-day.
Tr. 79.
In August 2005, David Bulmer, M.D., conducted a
consultative psychiatric evaluation.

He noted that “[i]t [was]

clear that [Alton] has been depressed in relation to her
drinking problem but it does not appear that the depression
meets criteria for psychiatric admission.”

Tr. 983.

While

rejecting the presence of admission-level depression, Dr. Bulmer
did observe that Alton was “certainly a candidate for outpatient
psychiatric followup.”

Id.

Alton’s medical records indicate that in August 2005, she
was admitted to Catholic Medical Center complaining of “extreme
fatigue, tiredness, excessive thirst, urination, recent
diagnosis of diabetes,” generalized weakness, and difficulty
walking, among other things.

Tr. 979.

In December 2006, Alton

sought alcohol detoxification at Southern New Hampshire Medical
Center.

She had high blood sugar, and complained of pain,

tingling, and numbness in her hands and feet.

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Her treating

physician opined that it was possible that the tingling and
numbness were caused by “diabetes and/or alcohol.”

Tr. 849.

In May 2007, Alton was again hospitalized, this time for
uncontrolled diabetes and alcohol withdrawal.

During this

hospitalization, Alton’s treating psychiatrist noted that she
had suffered from clinical depression for years and, during the
previous year, had not been sober for any significant period of
time.
In August 2007, Alton reported “feeling sad, [having] a
depressed mood, feeling low, [] not want[ing] to get out of bed,
lack[ing] motivation, isolation, and [a] history of suicidal
[thoughts].”

Tr. 674.

Alton reported that these symptoms had

become “significantly less severe” since she became sober.

Id.

In April 2008, Alton was admitted to the hospital for
alcohol detoxification.

Her treating physician noted diagnoses

of alcohol abuse and dependence, post-traumatic stress disorder,
major depressive disorder recurrence, type 2 diabetes, and
abnormal liver-function tests.
In May 2008, Alton sought care for her diabetes at the
Nashua Area Health Center from Dr. Heidi Crusberg.

Alton

reported that she had been sober for 21 days and that, before
becoming sober, she had been off insulin treatment for months at
a time.

Dr. Crusberg conducted a mental-status examination and

assessed that Alton had no depression, anxiety, or agitation.
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Alton first applied for DIB in August 2009.

Her date last

insured, which is relevant to determining her eligibility for
DIB benefits,1 was December 31, 2007.

In her application, she

claimed December 31, 2007, as her disability onset date.

Her

application was denied, and Alton requested a hearing before an
Administrative Law Judge (“ALJ”).

On November 15, 2010, ALJ

Tanya Garrian held a hearing at which Alton testified.

At that

hearing, Alton asked the ALJ to consult with a medical advisor
to help him establish her disability onset date.

The ALJ denied

Alton’s request.
After conducting a hearing, the ALJ issued a decision in
which she found Alton’s disability onset date to be January 1,
2010.

See Tr. 23.

Regarding the period before that date, the

ALJ found that while Alton’s impairments were disabling when she
was abusing alcohol, see Tr. 16, they were not disabling when
she was sober, see Tr. 17.

Based on that finding, the ALJ

determined that Alton was not disabled on or before her date
last insured and denied her DIB claim.

After Alton’s request

for review by the Appeals Council was denied, she filed this
complaint.

A claimant for DIB benefits must establish that she was
disabled on or before her date last insured. See 42 U.S.C. §
423(c); 20 C.F.R. §§ 404.101, 404.131.
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Discussion
Alton argues that the ALJ: (1) improperly calculated her
disability onset date by failing to consult with a medical
advisor; (2) improperly evaluated and insufficiently explained
the materiality of her substance abuse; and (3) incorrectly
evaluated her diabetes when deciding whether that impairment met
or medically equaled the severity of one of the impairments
listed in the Social Security regulations.

Alton’s first

argument is persuasive and dispositive.
To be eligible for DIB, a person must: (1) be insured for
such benefits; (2) not have reached retirement age; (3) have
filed an application; and (4) be under a disability.2
§§ 423(a)(1)(A)-(D).

42 U.S.C.

More specifically, under the circumstances

of this case, a claimant who is no longer insured for DIB
benefits must have been under a disability on or before her date
last insured to be eligible for DIB.

See 42 U.S.C. § 423(c); 20

“The term ‘disability’ means . . . inability to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment . . . 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). Additionally,
when a claimant suffers from alcoholism, the claimant is
eligible for DIB only if her limitations would persist at a
disabling level were she to stop abusing alcohol. 20 C.F.R. §
404.1535(b); see Alker v. Colvin, No. 13-cv-221-JD, 2014 WL
677866, at *7 (D.N.H. Feb. 20, 2014).
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C.F.R. §§ 404.101, 404.131.

The question in this case is

whether Alton was disabled on or before December 31, 2007.
The claimant bears the burden of proving that she is
disabled.

See Bowen v. Yuckert, 482 U.S. 137, 146 (1987).

must do so by a preponderance of the evidence.

She

See Mandziej v.

Chater, 944 F. Supp. 121, 129 (D.N.H. 1996) (citing Paone v.
Schweiker, 530 F. Supp. 808, 810-11) (D. Mass. 1982)).
However, when a claimant’s entitlement to benefits does not
depend upon proof of a present disability, but upon proof of a
disability that began prior to a date that is distant in time,
as is the case here, Social Security Ruling (“SSR”) 83-20
imposes an evidentiary requirement upon the ALJ.

That ruling,

which is titled “Onset of Disability,” states in relevant part:
[I]n some cases, it may be possible, based on the
medical evidence to reasonably infer that the onset of
a disabling impairment(s) occurred sometime 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 the onset date must be inferred.
SSR 83-20, 1983 WL 31249, at *3 (Jan. 1, 1983).
“As the court of appeals has observed, SSR 83-20 thus
‘require[s] the ALJ to consult a medical advisor’ when ‘the
evidence regarding the date on which [a] claimant’s impairment

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became severe is ambiguous.’”

Rossiter v. Astrue, No. 10-cv-

349-JL, 2011 WL 2783997, at *3 (D.N.H. July 15, 2011) (citing
May v. SSA Comm’r, 125 F.3d 841 (table), 1997 WL 616196, at *1
(1st Cir. Oct. 7, 1997)).

That is, consultation with a medical

advisor is required “in all but the most plain cases,” Fischer
v. Colvin, No. 13-cv-463-PB, 2014 WL 5502922, at *6 (D.N.H. Oct.
30, 2014) (quoting Bailey v. Chater, 68 F.3d 75, 80 (4th Cir.
1995)), and may be dispensed with only “if the record provides
unambiguous evidence that the claimant did not become disabled
as of the date last insured,” Fischer, 2014 WL 5502922, at *6
(citing May v. Soc. Sec. Admin. Comm’r, No. 97-1367, 1999 WL
616196, at *1-2 (1st Cir. Oct. 7, 1997)).
A claimant’s date of disability onset is free from
ambiguity only if
no legitimate basis in the record can support an
inference of disability as of the date last insured.
. . . Thus, even a record that furnishes only weak
support for a claim remains ambiguous, and therefore
requires consultation with a medical advisor, if it
could support any reasonable inference of disability
prior to the date last insured.
Fischer, 2014 WL 5502922, at *6 (quoting Mason v. Apfel, 2 F.
Supp. 2d 142, 149 (D. Mass. 1998)).
As an example of a situation in which the onset date was
not ambiguous, the court turns to Judge Laplante’s decision in
Mills v. Astrue, No. 10-cv-279-JL, 2011 WL 2413169 (D.N.H. June
15, 2011).

In that case, the claimant alleged that she was
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disabled by knee pain.

However, a review of her medical records

revealed no complaints of any knee pain at all during the fiveyear period subsequent to her alleged disability onset date.
Judge Laplante found that the claimant’s “medical records [were]
simply not ambiguous as to whether she was disabled from knee
pain,” id. at *8, and accordingly, ruled that the ALJ was not
required to consult with a medical advisor when determining the
claimant’s date of disability onset.
In contrast, Judge Laplante found that the claimant’s date
of disability onset was ambiguous in Rossiter.

The record in

that case revealed that, for several years, both before and
after the claimant’s alleged date of disability onset, the
claimant received intermittent treatment for her allegedly
disabling condition.

See Rossiter, 2011 WL 2783997, at *5-6.

In his decision remanding the case to the ALJ, Judge Laplante
explained that
SSR 83-20 requires the ALJ to consult with a medical
advisor in setting the onset date in all but the most
plain cases. . . . The issue of whether a medical
advisor is required under SSR 83-20 does not turn on
whether the ALJ could reasonably have determined that
the claimant was not disabled as of the claimed onset
date, but on whether the evidence is ambiguous on that
point.
Id. at *8 (citations, quotation marks, and brackets omitted).
Finding that the record was ambiguous, Judge Laplante ruled that

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the ALJ was required to consult with a medical advisor when
determining the claimant’s date of disability onset.

Id. at *8.

Here, as in Rossiter, the record does not unambiguously
establish that Alton was not disabled as of her last date
insured.

Alton was first hospitalized for mental-health issues

while she was still in college.

In 2003, she was diagnosed with

severe recurrent depression and hospitalized twice.

Laboratory

testing for alcohol was negative both times Alton was admitted
to the hospital in 2003.

In 2005, a physician noted that it was

clear that Alton was depressed “in relation to” her alcohol
abuse.

Tr. 983.

In 2007, Alton’s treating psychiatrist wrote

that she had suffered from clinical depression for years.

In

2008, while Alton was hospitalized, her treating physician noted
diagnoses that included: alcohol abuse and dependence, posttraumatic stress disorder, major depressive disorder, and type 2
diabetes, among other things.

All told, Alton was hospitalized

for a significant amount of time between 2003 and 2008: she was
hospitalized seven times, and her average hospital stay was more
than eight days.

Moreover, the court notes that Alton’s first

hospital admission for mental-health issues predates her alcohol
abuse by approximately five years.

Alton’s multiple

hospitalizations are at least as strong a basis for inferring
disability as the “intermittent treatment” in Rossiter.

In sum,

there a legitimate basis in the record to support a reasonable
11

inference that Alton was disabled on or before December 31,
2007.
For this reason, the ALJ committed an error of law by
failing to consult with a medical advisor.

Accordingly, this

case must be remanded.
Conclusion
For the reasons given, the Acting Commissioner’s motion for
an order affirming her decision, document no. 14, is denied, and
Alton’s motion to reverse the decision of the Acting
Commissioner, document no. 10, is granted to the extent that the
case is remanded to the Acting Commissioner for further
proceedings, pursuant to sentence four of 42 U.S.C. § 405(g).
The clerk of the court shall enter judgment in accordance with
this order and close the case.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
March 6, 2015
cc:

T. David Plourde
Janine Gawryl

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