Duguay v. US Social Security Administration, Acting Commissioner

Filing 17

///MEMORANDUM AND ORDER granting #8 Motion to Reverse Decision of Commissioner; denying #14 Motion to Affirm Decision of Commissioner. Pursuant to sentence four of 42 U.S.C. 405(g), I grant Duguay's motion to reverse the decision of the Acting Commissioner (Doc. No. 8), and I deny the Acting Commissioner's motion to affirm the decision (Doc. No. 14). I remand this case to the Acting Commissioner for further administrative proceedings consistent with this Memorandum and Order. So Ordered by Judge Paul J. Barbadoro.(js) Modified on 3/31/2017 to add: ///(js).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Dale Duguay
v.

Civil No. 15-cv-520-PB
Opinion No. 2017 DNH 064

US Social Security Administration,
Acting Commissioner, Nancy A. Berryhill
MEMORANDUM AND ORDER
Dale Duguay challenges the Social Security Administration’s
decision to deny his claim for disability insurance benefits
(“DIB”).

See 42 U.S.C. § 423.

He argues that the

Administrative Law Judge (“ALJ”) erred by failing to call a
medical advisor to help determine the onset date of his
disability.

The Acting Commissioner moves for an order

affirming the ALJ’s decision.

For the following reasons, I

remand for further administrative proceedings.

I.

BACKGROUND1

Duguay is a fifty-four-year-old man who previously ran a
family contracting business, but stopped working in 2012.

His

date last insured for purposes of DIB was March 31, 2013.

In

In accordance with Local Rule 9.1, the parties have submitted a
joint statement of stipulated facts (Doc. No. 12). Because that
statement is part of the court’s record, I recount the facts
only as relevant to the disposition of this matter. I focus on
the medical record before December 14, 2013, the date that the
ALJ fixed for the onset of Duguay’s disability.
1

the 1980s, Duguay suffered stab wounds that required several
corrective surgeries and resulted in abdominal complications,
including recurrent bowel obstructions, hernias, and chronic
pain.2

Tr. at 54–59.

He became a poor candidate for more

surgeries due to accumulated adhesions and the risks associated
with surgery.

Tr. at 59.

on opiate therapy.

To cope with the pain, he was placed

To cope with the abdominal issues, he

engaged in self-care that he learned from a physician.

That

care included dietary changes, lying down, and techniques such
as manually “manipulat[ing] the intestine back through the
abnormality of the fascia or the abdominal wall.”

Tr. at 56–60.

In addition to the abdominal issues, Duguay also suffered from
diabetes mellitus, anxiety, and depression.
In 2011, Duguay’s physical symptoms began to worsen.
at 48–57, 64, 303.

Tr.

Treatment notes from the medical provider

managing Duguay’s chronic abdominal pain show that he had a
large protruding abdomen with fist-sized hernias.

The January

2012 treatment notes are similar, with Duguay reporting two or
three bowel obstructions a month, and two or three “bad ones a
year in which he is in bed for 10 days.”

Tr. at 261.

The next month, in February 2012, Duguay had an especially
severe episode of bowel obstruction.

Seeking relief, he went a

For ease of discussion, I will refer to these conditions
collectively as the “abdominal issues.”
2

2

hospital emergency department to use a nasogastric tube, which
required the assistance of four nurses and a physician.

The

physician noted that the “extreme difficulty” of passing the
tube forced him to “reach into the back of [Duguay’s] throat and
redirect the tube down into the esophagus, as each time it would
curl up.”

Tr. at 491–92.

other fluid was drained.

Several cups of blood were filled and
Tr. at 60, 492.

Treatment notes state

that Duguay’s “abdomen is essentially one large hernia” and
observe that he was suffering “acute distress” from “[c]omplete
mechanical small bowel obstruction, secondary to adhesions.”
Tr. at 491.

Several diagnostic tests were taken and recorded,

and he was hospitalized overnight.

Tr. at 493–99.

Although

Duguay seemed better the next morning, the treating physician
planned to keep him hospitalized for, among other reasons, pain
control.

Tr. at 491–93.

Duguay, however, concluded that the

worst of his bowel obstruction episode was over, the nasogastric
tube was ineffective, and the hospital could do nothing to
further improve his condition but was costing him thousands of
dollars per day.
advice.

Tr. at 61.

He ultimately left against medical

Tr. at 61, 493.

A few days later, Duguay began seeing primary care
physician Brian Sponseller, M.D.

Dr. Sponseller’s initial

physical examination report noted several hernias, but stated
that pain medication was effective.
3

Dr. Sponseller remarked

that the significant abdominal issues ‘are what they are,’ and
that he would have Duguay hospitalized if it became necessary.
Tr. at 62, 277–79.

For the next year and a half, Duguay visited

Dr. Sponseller periodically to treat his hyperlipidemia,
hypertension, and diabetes.

See Tr. at 279, 633.

Although Dr.

Sponseller’s treatment notes from this period refer to Duguay’s
significant abdominal hernias and his continuing reports of
chronic abdominal pain, most of the notes concern Duguay’s
opioid prescriptions and diabetes treatment.

See, e.g. Tr. at

279, 281–82.
During this period, Duguay felt that his “medical needs
were just spiraling out of control.”
50–52.

Tr. at 64; see Tr. at 48,

Finding himself increasingly confined to bed for

significant periods of time, Duguay stopped working and wound up
the family business in June 2012.

The symptoms continued

escalating, and photographs from early 2013 illustrate that the
hernias were “much larger than a fist”:

[Redacted medical records]

Tr. at 97, 218–220.

The frequency of his partial bowel

obstructions was “becoming unbearable,” Tr. at 55–57, 65, and he
experienced complete obstructions that he described as “laying
in bed with a Maxwell House can next to you that you’re vomiting
4

into and having uncontrolled bowel activity and the most
unbelievable pain that you can imagine,” Tr. at 56.

Even with

opiate therapy, Duguay described going “through a lot of hell.”
Tr. at 63.

Despite the worsening symptoms, he believed that

self-care at home was his only option beyond his opiate
prescription.

Tr. at 67.

He did not seek other professional

medical treatment during this period because surgery was not a
viable option, see Tr. at 58–59, 332, 343–45, 503, 762,
palliative relief beyond painkillers was ineffective, Tr. at 63,
69, and he was constrained by limited financial resources, see
Tr. at 50–52, 61–62, 298.
In the summer of 2013, state agency doctors issued medical
opinions.3

In a consultative examination, state physician Peter

Loeser, M.D., noted Duguay’s reports that he suffered from
severe abdominal pain and also recurrent small bowel
obstructions three or four times per month, each lasting from a
day to ten days.

The examination notes state that Duguay’s

abdomen had “mild diffuse tenderness without rebound tenderness”

A number of opinions addressing psychological issues were also
issued. Dr. Sponseller stated in response to a questionnaire
that Duguay’s mental status and functioning were normal. In a
state consultative examination, psychologist Cheryl Bildner,
Ph.D., diagnosed depressive and anxiety disorders, and found
that Duguay had significant limitations in areas such as
concentration. Tr. at 294–98. In a state psychiatric review,
psychologist Stacey Fiore, Psy.D., opined that Duguay had
moderate difficulties in daily activities, social functioning,
and concentration. Tr. at 99.
3

5

and “marked abdominal wall protrusions and irregularity.”
at 303–05.

Tr.

Dr. Loeser opined that the abdominal issues “would

not likely improve with further surgical interventions,” and he
“would expect [Duguay’s] symptoms to have at least a mild to
moderate effect on his overall functional capacity.”
305.

Tr. at

Although Dr. Loeser physically examined Duguay, he did not

treat him or assess specific residual functional capacities.
State physician Jonathan Jaffe, M.D., also issued an
opinion.

He did not treat or examine Duguay, and his opinion

was based on a review of the medical record, including Dr.
Loeser’s physical examination.

But he reviewed an incomplete

medical record that was missing treatment notes.

Tr. at 26.

He

also made incorrect factual statements, including that “there
were ‘[n]o visits/hospitalizations for [small bowel
obstructions],’” which conflicts with medical records reflecting
Duguay’s February 2012 hospitalization.

Dr. Jaffe opined that

his review of the record “does not support more than moderate
impairment.”

Tr. at 102.

In December 2013, Duguay was again hospitalized for
abdominal issues.

The hospitalization was precipitated when,

after a long drive in which the steering wheel rubbed against
his abdomen, a fluid blister popped and drained fluid.
331–32, 635.

Tr. at

He initially attempted self-care at home, but when

the wound became “green with an extremely foul odor” and
6

“expel[led] brown fluid,” he “decided to come in and have it
looked at” by Dr. Sponseller.

Tr. 338, 635.

An operation was

planned, but when the surgeon recommended a “complete abdominal
revision,” Duguay self-transferred to a different hospital.
at 332, 338, 635.

Tr.

Treatment notes recount that Duguay arrived

“on [a] high dose of narcotics for chronic pain related to [the]
previous abdominal” issues, which have a “very complicated
history.”

Tr. at 332, 762.

Duguay was hospitalized for a week,

and a variety of diagnostic tests were taken and recorded.
E.g., Tr. at 354.

Treating physician Frederick Radke, M.D.,

diagnosed Duguay with an enterocutaneous fistula.
332.

See Tr. at

Most enterocutaneous fistulas develop following abdominal

surgery or conditions such as bowel obstruction.4

Following the

December 2013 hospitalization, Duguay’s condition continued to
worsen, and in 2014 he underwent two hernia surgeries and was
diagnosed with acute renal failure, diabetic ketoacidosis, and
hyperkalemia.

See Tr. at 27, 501–507, 637, 644, 646, 702, 763,

778.

“Enterocutaneous fistulas (ECFs) are abnormal connections
between the gastrointestinal tract and the skin. The majority
(∼85%) of ECFs develop following abdominal surgery for
intestinal malignancy, inflammatory bowel disease (IBD),
recurrent explorations, or after extensive adhesiolysis for
conditions such as small bowel obstruction.” Guy R. Orangio,
M.D., Enterocutaneous Fistula: Medical and Surgical Management
Including Patients with Crohn’s Disease, Clinics in Colon and
Rectal Surgery, 2010 Sep; 23(3), 169–175, available at
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2967316.
4

7

Medical opinions from early 2014 reflect Duguay’s worsening
condition.

In March 2014, treating primary care physician Dr.

Sponseller opined in a physical impairment questionnaire that
Duguay had severe, disabling limitations.

Tr. at 441–44.

He

opined that Duguay expressed constant attention difficulties,
could not perform even low-stress jobs, would need unscheduled
breaks during the day, could never lift 10 pounds, would miss
about four days of work per month, and could not stand, sit, or
walk for the full eight-hour workday.

Tr. at 441–44.

The

opinion was retroactive, with Dr. Sponseller opining that
Duguay’s impairments and limitations “existed since the . . .
alleged onset date of [June] 2012.”

Tr. at 440–441, 24.

The

next month, Dr. Sponseller opined that Duguay should be excused
from any absences because he was immobile.

Tr. at 792.

That

same month, State physician Dr. Peter Bradley opined in a
Medicaid disability determination that Duguay was restricted to
less than sedentary work, Tr. at 647–53, and Duguay returned to
the hospital twice for abdominal pain and complications from his
fistula.

See Tr. at 27, 461–79.

Later in 2014, Dr. Radke, a

treating surgeon, opined in a physical impairment questionnaire
that Duguay had several severe limitations and an inability to
perform any work generally requiring an upright position, which
“seems to exacerbate his recurrent small bowel obstructions and
subsequent fistulas.”

Tr. at 758–59.
8

Duguay filed for SSI and DIB in March 2013 alleging a
disability onset date of June 2012.

Tr. at 17, 194–95.

His

initial application for benefits was subsequently denied in
August 2013, and he requested a hearing before an ALJ.

In

September 2014, an ALJ finally held a hearing on Duguay’s
disability benefits claim.

Tr. at 35.

Soon thereafter, the ALJ

issued an opinion determining that Duguay first became disabled
on December 14, 2013, when he was hospitalized for the fistula.
Tr. at 17–29.

This onset date determination meant that Duguay

was eligible for SSI benefits, but ineligible for any DIB
benefits because his “date last insured” (“DLI”)5 for DIB
purposes was nine months before the onset date found by the ALJ.
The Appeals Council declined to review the ALJ’s decision, and
the present action followed in this court.

II.

STANDARD OF REVIEW

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.

See 42 U.S.C. §§ 405(g); 1383(c)(3).

That review

is limited, however, “to determining whether the ALJ used the
proper legal standards and found facts [based] upon the proper

See 20 C.F.R. §§ 404.130, 404.131(a), 404.132; Doc. No. 8-1 at
4 n.1.
5

9

quantum of evidence.”

Ward v. Comm’r of Soc. Sec., 211 F.3d

652, 655 (1st Cir. 2000).

I defer to the 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.”

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

On appeal, Duguay challenges the ALJ’s determination that
he did not become disabled until December 14, 2013, which
10

postdated his DLI and rendered him ineligible for DIB.

Duguay

argues that the ALJ violated SSR 83-20 by inferring the onset
date of his disability based on a sparse medical record, without
consulting a medical advisor.

In response, the Acting

Commissioner argues that the ALJ did not violate SSR 83-20
because “precise medical evidence” “unambiguously supports” the
December 14, 2013 onset date, thereby freeing the ALJ from the
need to consult a medical advisor before determining the onset
of Duguay’s disability.
A.

See Doc. No. 14-1 at 5–6, 10–11.

SSR 83-20
“[T]he onset date is critical” in cases like this one

because it is “determinative of whether [Duguay] is entitled to
or eligible for any [DIB] benefits.”

See SSR 83-20, 1983 WL

31249, at *1 (Jan. 1, 1983) (“SSR 83-20”).

The purpose of SSR

83-20 is to “describe the relevant evidence to be considered
when establishing the onset date of disability.”

Id.

SSR 83-20

is binding, Blea v. Barnhart, 466 F.3d 903, 909 (10th Cir.
2006), and it requires ALJs to consider “factors that include
‘the individual’s allegation, the work history, and the medical
evidence.’”

Fischer v. Colvin, 831 F.3d 31, 35 (1st Cir. 2016)

(quoting SSR 83-20 at *1).

“The starting point . . . is the

individual’s statement as to when disability began,” which
“should be used if it is consistent with all the evidence
available.”

SSR 83-20 at *2–3.

The date that the individual
11

stopped working is also “frequently of great significance in
selecting the proper onset date.”

See id. at *2.

“These two

factors are significant, however, only to the extent that they
are ‘consistent with the severity of the condition(s) shown by
the medical evidence,’ which ‘serves as the primary element in
the onset determination.’”

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

128, 138 (D.N.H. 2014) (quoting SSR 83-20 at *1–2).
“[SSR 83-20] recognizes that [the onset date] determination
may be especially difficult when ‘the alleged onset and the date
last worked are far in the past and adequate medical records are
not available.’”
*2).

Fischer, 831 F.3d at 35 (quoting SSR 83-20 at

“In such cases, if the alleged disability involved a

slowly progressing impairment, the ALJ may need ‘to infer the
onset date’ based on ‘medical and other evidence that describe
the history and symptomatology of the disease process.’”
(quoting SSR 83-20 at *2).

“Where an inference must be made, it

‘must have a legitimate medical basis.’”
at *3).

Id.

Id. (quoting SSR 83-20

“To this end, SSR 83-20 requires that ‘[a]t the

hearing, the [ALJ] should call on the services of a medical
advisor when onset must be inferred.’”
original) (quoting SSR 83-20 at *3).6

Id. (alterations in
Conversely, an ALJ need

The Acting Commissioner does not dispute that SSR 83-20’s
medical advisor provision is mandatory. See SSR 83-20 at *3
(“[T]he [ALJ] should call on the services of a medical advisor
when onset must be inferred.”); Fischer, 831 F.3d at 39
6

12

not call a medical advisor where no inference is required
because “precise medical evidence” unambiguously establishes the
onset date.
B.

See id. at 35-36.

Application
The question presented here is not whether Duguay is

disabled, which is a matter that is not in dispute.

Rather, the

issue is whether the ALJ violated SSR 83-20 when determining the
onset date of Duguay’s disability.

See Blea, 466 F.3d at 908.

Duguay argues that “[t]he ALJ was obligated to call a medical
advisor to the hearing under SSR 83-20 because the onset date of
disabling symptoms is ambiguous due to a gap in medical
treatment and evidence.”

Doc. No. 8-1 at 4.

The Acting

Commissioner responds by claiming that the ALJ did not need to
infer the onset date here because “the record,” including
“precise medical evidence,” “unambiguously supports” the
disability onset date fixed by the ALJ.

See Doc. No. 14-1 at 5–

(“[C]ounsel for the Commissioner conceded that ‘should’ is
mandatory.”); Wilson, 17 F. Supp. 3d at 141 (“The First
Circuit’s decision in May makes clear that an ALJ is required to
employ the services of a medical advisor when the available
evidence regarding disability onset is ambiguous.”) (citing May
v. Soc. Sec. Admin. Comm’r, 125 F.3d 841 (1st Cir. 1997) (per
curiam) (unpublished) (collecting cases)); Warneka v. Colvin,
2015 DNH 071, 8 (noting that “courts agree” and collecting
cases). But see Eichstadt v. Astrue, 534 F.3d 663, 667 (7th
Cir. 2008) (construing SSR 83-20 as non-mandatory).
13

6, 10–11.7

For the following reasons, I conclude that the ALJ

erred by failing to consult a medical advisor before determining
the onset date of Duguay’s disability.8
As a preliminary matter, I note that the record contains
considerable evidence supporting an earlier onset date than the
December 14, 2013, date fixed by the ALJ.

As the ALJ

acknowledges, treating primary care physician Dr. Sponseller
opined in 2014 that Duguay “has been significantly limited since
June 2012.”

Tr. at 24.9

Dr. Sponseller’s opinion was based on

his lengthy treatment relationship with Duguay that began
immediately after Duguay’s 2012 hospitalization and continued
through the December 2013 episode and into 2014.

See Tr. at

Neither party argues that Duguay has a disability of “traumatic
origin,” which SSR 83-20 analyzes under a separate framework.
7

The Acting Commissioner also challenged Duguay’s argument by
claiming that, under SSR 83-20, “inferences as to onset are only
needed when an impairment potentially becomes disabling prior to
the first recorded medical examination.” See Doc. No. 14-1 at
6. I decline to address this argument because the Acting
Commissioner failed to develop it in his brief.
8

The Acting Commissioner argues that the ALJ construed Dr.
Sponseller’s 2014 medical opinion as “prospective,” “not
retrospective.” Doc. No. 14-1 at 9 & n.4. But that position is
hard to square with the opinion itself, see Tr. at 440–41, and
with the ALJ’s own characterization of the opinion. Compare Tr.
at 24 (stating that Dr. Sponseller “opined [that Duguay] has
been significantly limited since June 2012”), with Pierce v.
Astrue, No. 1:10-cv-242-JAW, 2011 WL 2678919, at *5 (D. Me. July
7, 2011) (“[The ALJ] supportably determined that [the medical]
opinion” was prospective, not retrospective.), report and
recommendation adopted, No. 1:10-CV-00242-JAW, 2011 WL 3270251
(D. Me. July 29, 2011).
9

14

440–44.

The ALJ was required to give “‘controlling weight’ to

[this] opinion [if it] ‘is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the]
case record.’”

Widlund v. Astrue, No. 11-cv-371-JL, 2012 WL

1676990, at *8 (D.N.H. Apr. 16, 2012) (last alteration in
original) (quoting 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)),
report and recommendation adopted sub nom., Widlund v. U.S. Soc.
Sec. Admin., Comm’r, No. 11-cv-371-JL, 2012 WL 1676984 (D.N.H.
May 14, 2012).

Instead, without substantial justification, the

ALJ gave this opinion “little weight.”

Tr. at 24.

The June

2012 onset date identified by Dr. Sponseller also coincides with
the date Duguay stopped working, which is “frequently of great
significance in selecting the proper onset date.”
at *2.

See SSR 83-20

June 2012 is likewise the onset date alleged by Duguay

himself, and is thus the “starting point,” which “should be used
if it is consistent with all the evidence available.”

See id.

at *2–3.
Despite this evidence supporting an earlier onset date,
“[t]he ALJ did not reference SSR 83–20 in [his] decision.”
Wilson, 17 F. Supp. 3d at 139; Blea, 466 F.3d at 905.

See

It thus

fell to the Acting Commissioner to develop an after-the-fact
explanation in this court as to why the ALJ did not feel the
need to consult a medical advisor before inferring the onset
15

date of Duguay’s disability.

Assuming that mantle, the Acting

Commissioner cites three pieces of evidence in support of his
argument that the ALJ did not need to infer an onset date
because precise medical evidence unambiguously supports the
ALJ’s determination that Duguay was not disabled until December
2013.
1.

Dr. Sponseller’s Contemporaneous Treatment Notes

The Acting Commissioner first cites the treatment notes of
primary care physician Dr. Sponseller.

The Acting Commissioner

argues that these notes provide precise medical evidence that
Duguay was not disabled before December 2013 because they do not
reflect reports of small bowel obstruction or treatment for the
abdominal issues between Duguay’s hospitalizations in February
2012 and December 2013.

I disagree.

The principal flaw in the Acting Commissioner’s argument is
that the Acting Commissioner attempts to characterize the
absence of evidence of treatment as precise medical evidence
that Duguay was not disabled.

In pressing this argument, the

Acting Commissioner runs headlong into the problems at issue in
Blea, where an “ALJ improperly made inferences based on a ‘gap
in the [claimant's] medical record.’”
(quoting Blea, 466 F.3d at 912–13

Fischer, 831 F.3d at 36

Here, although Duguay and his

wife testified at the hearing to continuing debilitating
conditions in 2012 and 2013, the ALJ based his onset date
16

determination in part on the fact that the medical record is
sparse during this period.

See Tr. 83.

In analyzing Dr.

Sponseller’s treatment notes from the period between Duguay’s
hospitalizations, the ALJ wrote the following:
[T]he claimant did not seek regular treatment for [his
obstructive bowel] condition, nor have any emergency
treatment for exacerbations. The claimant was
regularly treating with Dr. Sponseller, where he
complained of abdominal pain and received a
prescription for Oxycodone, but these treatment
note[s] do not reflect any reports of recent
obstruction or complaints of being restricted to his
bed for pain management. The claimant testified that
his lack of insurance prevented him from receiving
care for this condition, but he was able to receive
treatment for his diabetes mellitus with Dr.
Sponseller and did not, at those visits, complain of
anything beyond abdominal pain. . . . [T]reatment
notes from Dr. Sponseller do not regularly describe
the claimant as presenting in pain or with any
abnormalities related to his abdomen. . . . He
previously had been able to work with use of an
abdominal binder and long-acting oxycodone therapy,
but treatment notes do not reflect any significant
change in his condition on or around the alleged onset
date [that] rendered these therapies ineffective. . .
. Treatment notes do not reflect reports of any small
bowel obstruction or other acute condition.
Tr. at 23 (emphasis added).

Putting aside any inaccuracies in

the ALJ’s account, these treatment notes still do not offer
medical evidence unambiguously establishing a disability onset
date.

See Blea, 466 F.3d at 912–13.

The Acting Commissioner is correct that “[a] lack of
evidence of treatment is relevant to the severity of a
claimant’s impairments and can support an inference that the

17

claimant was not disabled.”

See Doc. No. 14-1 at 11 (quoting

Tardiff v. Astrue, No. 11-cv-17-JD, 2012 WL 777484, at *10
(D.N.H. Mar. 7, 2012)).

Nevertheless, an inference is still

required in such circumstances, and the absence of treatment for
a specific condition will rarely, if ever, qualify as precise
medical evidence that a serious medical condition had not yet
become disabling.

It is also true that, “[a]rguably, every

onset determination reached by an ALJ — a lay individual with no
required medical training — will involve some degree of
ambiguity and inference.”

Fischer, 831 F.3d at 35.

But

evidence that is merely “relevant” and “support[ive]” of the
ALJ’s onset date determination is a far cry from “precise
medical evidence.”

Compare Fischer, 831 F.3d at 36 and Doc. No.

14-1 at 5-6 with id. at 11.
In this way, the Acting Commissioner’s heavy reliance on
the First Circuit’s recent decision in Fischer is also
inapposite.

See id. at 36.

There, “[t]he ALJ did not rely upon

the absence of medical evidence but rather the existence of
‘precise’ medical evidence — the normal results of the
diagnostic imaging — when concluding that [the claimant’s]
impairments had not reached disabling severity prior to her
DLI.”

Id.

Here, in contrast, the ALJ did not rely on any such

“contemporaneous evidence [that] was specific and unequivocal”
as to the onset date of Duguay’s disability.
18

See id.; cf. Blea,

466 F.3d at 912–13; Grebenick v. Chater, 121 F.3d 1193, 1201
(8th Cir. 1997) (holding that ALJ did not err where diagnostic
and clinical data affirmatively established that progressive
disease had not become disabling at later date, thereby leaving
no ambiguity over whether it was disabling at earlier date).
The Acting Commissioner’s contention that an absence of
medical evidence of disability before a specified date can
qualify as precise evidence of disability is especially
troubling in this case because the record includes evidence
explaining why Duguay may not have sought treatment for a
disabling medical condition from Dr. Sponseller during this
period.

The record reveals that Duguay was a poor candidate for

additional surgeries, his doctors offered few treatments beyond
opiates, Duguay was pursuing self-care strategies recommended by
prior doctors, and professional treatment was ineffective and
unaffordable without health insurance.

Duguay further testified

that Dr. Sponseller saw Duguay’s complicated abdominal problems
as a hospital issue, with the primary care role essentially
limited to prescribing painkillers and facilitating
hospitalization when necessary.

See Tr. at 62, 277–78.

Lastly,

Duguay’s prior hospitalization, in February 2012, was expensive,
difficult to endure, and had limited utility.

See Blea, 466

F.3d at 912–13 (finding that ALJ erred in inferring that
claimant was not disabled based in part on treatment gap and
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decision to not pursue surgery).

This evidence, which went

largely unexamined by the ALJ, provides an explanation for
Duguay’s failure to seek additional treatment from Dr.
Sponseller and prevents the absence of medical evidence from
qualifying as precise evidence that Duguay was not disabled
during this period.
2.

Dr. Loeser’s Opinion

The Acting Commissioner next argues that precise evidence
of the onset date of Duguay’s disability can be derived from the
August 2013 opinion of Dr. Loeser.
several reasons.

This argument fails for

First, Dr. Loeser’s opinion was issued months

before the onset date fixed by the ALJ.

Second, Dr. Loeser

never treated Duguay and examined him only once.

Tr. at 303.

Third, the ALJ did not state how much weight he accorded Dr.
Loeser’s opinion, which was based on a “physical exam” that
apparently did not involve x-rays or similar diagnostics.
Doc. No. 12 at 6; Tr. at 303–05.

See

Fourth, and most

significantly, Dr. Loeser found “marked wall protrusions with
irregularity.”

Tr. at 304.

Based on his physical examination

of Duguay, Dr. Loeser opined that he “would expect [Duguay’s]
symptoms to have at least a mild to moderate effect on his
overall functional capacity.”

Tr. at 305 (emphasis added).

In

short, Dr. Loeser did not opine on specific residual functional
capacities, and he described a floor for Duguay’s limitations,
20

not a ceiling.

For these reasons, Dr. Loeser’s opinion does not

provide precise medical evidence unambiguously establishing that
Duguay was not disabled before December 14, 2013.
3.

Dr. Jaffe’s Opinion

Lastly, the Acting Commissioner argues that Dr. Jaffe’s
opinion provides precise medical evidence unambiguously fixing
December 14, 2013 as the onset date for Duguay’s disability.
This argument is flawed in several ways.

First, Dr. Jaffe’s

opinion was issued months before the onset date fixed by the
ALJ.

Second, Dr. Jaffe neither treated nor examined Duguay, and

his opinion was based only on a medical record review.

Third,

and importantly, the record that Dr. Jaffe reviewed was
incomplete.

Dr. Jaffe’s assessment of Duguay’s residual

functional capacity, which the ALJ adopted in determining that
Duguay was not disabled before December 2013, was predicated on
a medical record that was missing treatment notes.

Although the

ALJ acknowledged that “[a]dditional treatment notes were
admitted to the record after [Dr. Jaffe] performed his review,”
the ALJ nevertheless gave Dr. Jaffe’s opinion “great weight.”
Tr. at 26.

The ALJ fails to say what the missing treatment

records are, and this glaring omission invites only speculation.
Instead, he gives only a terse explanation that “these treatment
notes,” whatever they are, “do not reflect significant change or
deterioration in the claimant’s condition through December 13,
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2013.”

Tr. at 26.

There is no indication that this conclusion

was based on anything other than the ALJ’s lay interpretation of
the treatment notes.

See Nguyen, 172 F.3d at 35 (stating that

ALJ’s findings are not conclusive if ALJ derived findings by
“judging matters entrusted to experts”).
Medical evidence from both before and after a particular
date can be highly relevant in determining whether a claimant’s
symptoms were disabling as of that date.

For example, Dr. Jaffe

incorrectly states that there were “[n]o visits/hospitalizations
for [small bowel obstructions].”

Tr. at 101.10

In reality,

Duguay was hospitalized for an obstruction in February 2012.
Similarly, Dr. Jaffe could not have been aware of Duguay’s
subsequent hospitalization for abdominal issues in December
2013.

Cf. Fischer, 831 F.3d at 36 (“[W]here contemporaneous

medical evidence is lacking, post-DLI medical records may
support a finding that the claimant’s impairments were severe
prior to her DLI . . . .”).

Duguay also observes that “Dr.

Jaffe did not have access to any objective medical imagery . . .

Duguay contends, and the Commissioner does not dispute, that
Dr. Jaffe was missing the February 2012 hospitalization records.
That contention is based on 1) Dr. Jaffe’s false statement about
the lack of visits or hospitalizations for small bowel
obstruction, 2) the list of evidence that appears in the August
2013 “Disability Determination Explanation” containing Dr.
Jaffe’s review, and 3) the chronological numbering of exhibits
submitted to the Social Security Administration. See Doc. No.
8-1 at 8 & n.2; Doc. No. 14-1 at 7; see also Tr. at 95–96, 101.
10

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such as x-ray, CT, or MRI showing the internal complications of
[his] condition.”

Doc. No. 8-1 at 8.

The medical evidence that Dr. Jaffe was missing could have
shed light on Duguay’s symptomatology and limitations.

Without

the 2012 and 2013 hospitalization records bookending the alleged
treatment gap, Dr. Jaffe was left to opine on a limited medical
record.

For these reasons, Dr. Jaffe’s opinion does not

constitute precise medical evidence that Duguay was not disabled
before December 14, 2013.

IV.

CONCLUSION

In the present case, the ALJ determined the onset date of
Duguay’s disability without consulting a medical advisor even
though the medical evidence that supports his determination was
ambiguous.

Duguay’s testimony as to his condition, the date he

stopped working, the opinion of his treating physician, and
other medical evidence in the record all support an onset date
before Duguay’s DLI, yet the ALJ instead based his finding of a
later onset date on an improperly-analyzed absence of treatment,
the opinion of an examining source who claimed a floor for
Duguay’s limitations rather than a ceiling, and a non-examining
source who based his opinion on incomplete medical records.
This evidence, individually and collectively, lacks precision
and does not obviate the need for the ALJ to infer an onset date
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for Duguay’s disability.

Not only is the evidence ambiguous, it

does not even qualify as substantial evidence for the ALJ’s
onset date determination.

Accordingly, the ALJ’s decision to

determine an onset date for Duguay’s disability without the
assistance of a medical advisor must be reversed and the case
must be remanded for further proceedings consistent with this
Memorandum and Order.
Pursuant to sentence four of 42 U.S.C. § 405(g), I grant
Duguay’s motion to reverse the decision of the Acting
Commissioner (Doc. No. 8), and I deny the Acting Commissioner’s
motion to affirm the decision (Doc. No. 14).

I remand this case

to the Acting Commissioner for further administrative
proceedings consistent with this Memorandum and Order.
SO ORDERED.
/s/Paul Barbadoro
__
Paul Barbadoro
United States District Judge
March 31, 2017
cc:

Laurie Smith Young, Esq.
Michael T. McCormack, Esq.
T. David Plourde, Esq.

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