Carleton v. US Social Security, Acting Commissioner
Filing
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ORDER granting 6 Motion to Reverse Decision of Commissioner; denying 9 Motion to Affirm Decision of Commissioner. So Ordered by Judge Paul J. Barbadoro.(jna)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Bruce T. Carleton
v.
Case No. 15-cv-259-PB
Opinion No. 2016 DNH 087
Carolyn W. Colvin,
Acting Commissioner,
U.S. Social Security
Administration
MEMORANDUM AND ORDER
Bruce Carleton challenges the Social Security
Administration’s denial of his claim for Disability Insurance
Benefits (“DIB”).
The Acting Commissioner, in turn, moves for
an order affirming the decision.
Because the ALJ ignored the
requirements of SSR 83-20 and failed to call a medical advisor
to determine the onset date of Carleton’s disability, I
determine that his decision was not supported by substantial
evidence.
As a result, I grant Carleton’s motion and remand the
case to the Commissioner for further proceedings consistent with
this Memorandum and Order.
I.
BACKGROUND
In accordance with Local Rule 9.1, the parties have
submitted a joint statement of stipulated facts (Doc. No. 11).
See LR 9.1.
Because that joint statement is part of the court’s
record, I need not recount it here.
I discuss facts relevant to
the disposition of this matter as necessary below.
II. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), I have the authority to review
the pleadings submitted by the parties and the administrative
record, and to enter a judgment affirming, modifying, or
reversing the “final decision” of the Commissioner.
That review
is limited, however, “to determining whether the [Administrative
Law Judge] used the proper legal standards and found facts
[based] upon the proper quantum of evidence.”
Ward v. Comm’r of
Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000).
I defer to the
Administrative Law Judge’s (ALJ’s) findings of fact, so long as
those findings are supported by substantial evidence.
Id.
Substantial evidence 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, the ALJ’s
factual findings are conclusive, even where the record “arguably
could support a different conclusion.”
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Id. at 770.
Findings
are not conclusive, however, if the ALJ derived his findings by
“ignoring evidence, misapplying the law, or judging matters
entrusted to experts.”
Cir. 1999) (per curiam).
Nguyen v. Chater, 172 F.3d 31, 35 (1st
The ALJ is responsible for determining
issues of credibility and for drawing inferences from evidence
in the record.
Irlanda Ortiz, 955 F.2d at 769.
It is the role
of the ALJ, not the court, to resolve conflicts in the evidence.
Id.
III. ANALYSIS
Bruce T. Carleton is a former laborer, pipefitter, power
washer, boiler worker, and working foreman.
Doc. No. 11 at 2.
He was 48 years old on December 31, 2005, his date last insured.
Id.
Carleton filed for DIB on August 13, 2012, claiming
disability as of June 15, 2003.
Id. at 1.
The Social Security
Administration denied his application, and in January 2014 a
hearing was held before ALJ Jonathan Baird.
Id.
Following that
hearing, the ALJ issued a written decision denying Carleton’s
application.
Tr. at 68-76 (ALJ’s written decision).
The ALJ based his ruling on a determination that Carleton
was not disabled prior to his date last insured, but made no
finding of present disability.
To arrive at this conclusion,
the ALJ employed the familiar five-step analysis described in 20
C.F.R. § 404.1520.
At step one, he found that Carleton had not
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engaged in substantial gainful activity between June 15, 2003,
his alleged onset date, and December 31, 2005, his date last
insured.
Tr. at 70.
At step two, the ALJ determined that
Carleton suffered from “degenerative disc disease with
associated right leg symptoms,” through his date last insured.
Tr. at 70.
The ALJ further noted that Carleton’s condition was
a “severe impairment,” but at step three determined that the
impairment did not meet or medically equal any of those listed
in the relevant regulations.
Tr. at 70-71.
The ALJ then
decided that Carleton retained the Residual Functional Capacity
(“RFC”) to perform light work with certain restrictions, such as
only occasionally climbing ramps or stairs and avoiding
concentrated exposure to excessive vibration.
Tr. at 71.
Based
on this RFC, the ALJ found at step four that Carleton could not
perform his past relevant work.
Tr. at 74.
Lastly, at step
five, the ALJ consulted a vocational expert and concluded that
Carleton could find work in the national economy as a price
marker, order caller, or ticket seller, despite his limitations.
Tr. at 75.
The ALJ therefore concluded that Carleton was not
disabled as of his date last insured.
Tr. at 76.
Carleton requested review of the ALJ’s decision, but in May
2015 the Appeals Council denied his request.
Tr. at 1-4.
As a
result, the ALJ’s decision constitutes the Commission’s final
decision, and this case is now ripe for review.
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Carleton makes four general arguments challenging the ALJ’s
decision.
First, Carleton argues that the ALJ ignored medical
evidence in his file that supported his claim.
Second, he
claims that the ALJ wrongly concluded that his testimony at the
hearing was not credible.
Third, he criticizes various aspects
of the ALJ’s instructions to the vocational expert, who
testified that Carleton could perform certain jobs in the
national economy despite his limitations.
And fourth, Carleton
argues that the ALJ violated Social Security Ruling 83-20 by
failing to consult a medical advisor to determine the onset date
of Carleton’s disability.
Carleton’s fourth argument is
persuasive, and requires a remand here.
In alleging that the ALJ ignored SSR 83-20, Carleton
fashions what is now a well-worn argument in this court.
As I
ruled previously in Ryan v. Astrue, 2008 DNH 148, Wilson v.
Colvin, 17 F. Supp. 3d 128 (D.N.H. 2014), Fischer v. Colvin,
2014 DNH 227, and Warneka v. Colvin, 2015 DNH 071, SSR 83-20
“ordinarily requires the ALJ to consult a medical advisor before
concluding that a claimant was not disabled as of [his] date
last insured.”1
Fischer, 2014 DNH 227, 17; see SSR 83–20, 1983
As the Commissioner notes, the First Circuit is currently
considering an appeal from Fischer. See Fischer, 2014 DNH 227,
appeal docketed, No. 15-1041 (1st Cir. Jan. 8, 2015). As of the
date of this order, however, the First Circuit has not handed
down its ruling. Accordingly, I continue to apply SSR 83-20 as
1
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WL 31249 (Jan. 1, 1983).
Because the ALJ failed to do so here,
his finding was not supported by substantial evidence, and a
remand is warranted.
I begin with the familiar framework of SSR 83-20.
SSR 83–
20 guides the determination of a disability's onset date.
Warneka, 2015 DNH 071, 7.
To establish when a disability began,
the Ruling breaks disabilities into two general categories:
those of “traumatic origin” and those of “nontraumatic origin.”
See SSR 83–20, 1983 WL 31249, at *1-*2.
For disabilities of
traumatic origin – like, say, emotional shock from a car
accident – the onset date is generally uncomplicated: it occurs
“the day of the injury.”
Id. at *2.
For nontraumatic origin
disabilities – like, say, a slowly-progressing form of anxiety –
the “determination of onset involves consideration of the
applicant’s allegations, work history, if any, and the medical
and other evidence concerning impairment severity.”
Id.
Moreover, with “slowly progressive impairments,” the Ruling
notes that
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,
I and my colleagues have in the past unless and until the First
Circuit instructs otherwise.
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it will be necessary to infer the onset date from the
medical and other evidence. . .
Id.
Where “precise evidence” of onset is unavailable, SSR 83-20
ordinarily requires ALJs to call a medical advisor to infer the
correct date.
Id. at *3.
In other words, if the evidence of
onset is “ambiguous,” the ALJ must generally call a medical
advisor.
May v. Soc. Sec. Admin. Com'r, 125 F.3d 841 (1st Cir.
1997)(per curiam)(unpublished table decision); see also
Grebenick v. Chater, 121 F.3d 1193, 1200–1201 (8th Cir. 1997)
(“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. . . .”); Spellman v. Shalala,
1 F.3d 357, 362-63 (5th Cir. 1993) (same).
Here, the ALJ declined to call a medical advisor to infer
Carleton’s onset date.
The Commissioner defends this decision
by making two primary arguments.
First, she disagrees with my
reading of SSR 83-20 and argues that a medical advisor must only
be called if “a claimant has been found presently disabled, and
the onset date of the disability cannot be determined without
drawing inferences from medical evidence.”
Doc. No. 9-1 at 8.
And second, she contends that even if SSR 83-20 applies, the
record here contains unambiguous evidence showing that Carleton
was not disabled prior to his date last insured.
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I reject the Commissioner’s first argument for the same
reasons that I explained in Ryan.
As I held there, the ALJ must
still call a medical advisor to infer onset when, as in this
case, he does not determine whether the claimant is presently
disabled.
See Ryan, 2008 DNH 148, 17-20.
To hold otherwise
would allow ALJs to avoid calling a medical advisor by
sidestepping the question of present disability – which, in my
view, violates the policy behind SSR 83-20.
See id. (discussing
the policy underpinning SSR 83-20).
The Commissioner’s second argument fails because the
medical evidence of Carleton’s disability was ambiguous.
In
Fischer, I noted that “even a record that furnishes only weak
support for a claim remains ambiguous.”
19.
Fischer, 2014 DNH 227,
Thus, if a record supports “any legitimate inference of
disability prior to the date last insured,” it “requires
consultation with a medical advisor.”
Id.
The evidence here was sufficient to meet this low bar.
Carleton alleges that onset occurred on June 16, 2003, over a
decade ago.
As the ALJ notes, however, “there is remarkably
little evidence available prior to the claimant’s date last
insured of December 31, 2005.”
Tr. at 72.
“In fact,” he wrote,
“there only appears to be two pieces of evidence total from
prior to the date last insured.”
Tr. at 72.
Nonetheless,
although these treatment notes do not explicitly record a date
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of onset, they do establish that Carleton had serious disc and
back problems.
A June 2003 treatment note, for instance,
indicates that Carleton suffered from an “annular tear with
moderate disc bulge” that produced “persistent radicular leg
pain [in] both legs.”
Tr. at 696.
Carleton’s March 2005
“progress note” indicated that he had suffered a “back injury”
two years ago.
Tr. at 824.
These findings, at minimum, support
a “legitimate inference of disability prior to the date last
insured.”
Fischer, 14 DNH 227, 19.
Moreover, the ALJ’s own decision reveals that the evidence
prior to December 31, 2005 was ambiguous.
The ALJ notes that
only two pieces of evidence existed from 2003 to 2005, but
nonetheless concludes that “the limitations described in
[Carleton’s] residual functional capacity were reasonably
present prior to the date last insured.”
added).
Tr. at 72 (emphasis
Later, the ALJ states that “[t]here is little evidence
from prior to the claimant’s date last insured to support a
finding of disability,” Tr. at 73, but “there is nonetheless
sufficient evidence to warrant a finding of medically
determinable severe impairments.”
Tr. at 74.
While these
findings do not, of course, conclusively establish that Carleton
was disabled prior to his date last insured, they do show that
there was sufficient evidence of his disability that the ALJ
should have called a medical advisor to infer a date of onset.
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SSR 83-20 explicitly addresses cases like these.
“Determining the proper onset date is particularly difficult,”
the Ruling notes, “when . . . the alleged onset and the date
last worked are far in the past and adequate medical records are
not available.”
such a case.
See SSR 83–20, 1983 WL 31249, at *2.
This is
The alleged onset date and the date last worked
were both more than a decade before the ALJ’s hearing.
As a
result, the ALJ should have followed the dictates of 83-20 and
called a medical advisor to infer the date of onset.
The ALJ’s
failure to do so was erroneous and necessitates a remand.
IV.
CONCLUSION
Carleton’s motion to reverse the decision of the
Commissioner (Doc. No. 6) is granted.
to affirm (Doc. No. 9) is denied.
The Commissioner’s motion
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
April 29, 2016
cc:
Christine Woodman Casa, Esq.
Michael T. McCormack, Esq.
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