Kessler v. US Social Security Administration, Acting Commissioner
///ORDER granting 9 Motion to Reverse Decision of Commissioner; denying 13 Motion to Affirm Decision of Commissioner. The case is remanded for further proceedings pursuant to Sentence Four of § 405(g). Clerk shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Roberta Raye Kessler
Civil No. 16-cv-349-JD
Opinion No. 2017 DNH 082
Nancy A. Berryhill,
Social Security Administration
O R D E R
Roberta Raye Kessler seeks judicial review, pursuant to 42
U.S.C. § 405(g), of the decision of the Acting Commissioner of
Social Security, denying her application for disability
insurance benefits under Title II, 42 U.S.C. § 423.
contends that the Administrative Law Judge (“ALJ”) erred in
failing to find that she had severe medically determinable
mental impairments before her date last insured.
Commissioner moves to affirm.
Standard of Review
In reviewing the final decision of the Acting Commissioner
in a social security case, the court “is limited to determining
whether the ALJ deployed the proper legal standards and found
facts upon the proper quantum of evidence.”
Nguyen v. Chater,
172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart, 276
F.3d 1, 9 (1st Cir. 2001).
The court defers to the ALJ’s
factual findings as long as they are supported by substantial
§ 405(g); see also Fischer v. Colvin, 831 F.3d 31, 34
(1st Cir. 2016).
“Substantial evidence is more than a mere
It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”
Condo. Ass’n v. U.S. Dep’t of Housing & Urban Dev., 821 F.3d 92,
97 (1st Cir. 2016) (internal quotation marks omitted).
“[S]ubstantial evidence does not mean either uncontradicted
evidence or overwhelming evidence” but instead can be satisfied
“even if the record arguably could justify a different
Id. (internal quotation marks omitted).
Kessler applied for social security disability benefits in
November of 2013, claiming an onset of disability in December of
Kessler claimed disability due to depression, anxiety,
and an eating disorder.
Her date last insured was December 31,
Before her administrative hearing, Kessler amended the
onset date of disability to December 1, 2009, when she was
fifty-five years old.
Kessler completed four years of college
and had worked as a general officer helper.
She lost her job in
2004, which exacerbated her mental health symptoms.
Kessler’s medical records show that she demonstrated an
anxious mood or affect in April 2005.
depression in October of 2004.
She was diagnosed with
Her primary care physician
prescribed medication to treat depression.
In July of 2007, Dr. Cambrone did an initial psychiatric
Kessler reported six years of depression,
exacerbated by the loss of her job and the death of friends.
examination, Dr. Cambrone found that Kessler appeared older than
her age, her eye contact was poor, she showed psychomotor
retardation, and her mood was depressed.
Dr. Cambrone also
found that Kessler’s hygiene and grooming were good, her
interaction was good, and her insight and judgment were good.
Dr. Cambrone diagnosed major depressive disorder, recurrent.
In September of 2007, Dr. Cambrone made the same diagnosis,
increased Kessler’s dose of one medication, and added another
The next month Dr. Cambrone decreased some
medications because of too much sedation.
At the following
monthly appointments, Dr. Cambrone changed medications and doses
to address Kessler’s continuing depression and anxiety.
In December of 2007, Dr. Cambrone noted that Kessler’s
depression had worsened, but she refused psychotherapy
Beginning in December of 2007, Kessler’s husband
accompanied her to appointments with Dr. Cambrone.
continued to diagnose major depressive disorder and increased or
changed Kessler’s medications as needed.
In March of 2008,
Kessler reported no improvement and said that she wanted to stop
Dr. Cambrone lowered her dose and told her
she could discontinue medication in two weeks.
Kessler switched to treatment with psychiatrist Dr. Albert
Kaplan in 2009.
When asked, Dr. Kaplan was unable to find
He wrote a letter in January of 2014, in
which he stated that he had a “vivid memory” of Kessler as a
“frightened, anxious depressed woman” and that he had treated
her for about a two year period, from 2009 to 2011, with weekly
psychotherapy and medication.
only slight, if any, progress.
He also said that Kessler made
Dr. Kaplan remembered that
Kessler had severe anorexia, which required hospitalization, and
“situational issues” when her husband was laid off from work,
her mother had health issues, and she had difficulties with her
Dr. Kaplan said that Kessler could not work and
that her husband had to be with her during most, if not all, of
Kessler’s treatment sessions.
Kessler also provided medical records for treatment after
her date last insured.
Her treatment records with her primary
care physician, Dr. Daniel Goldman, confirm that Kessler was
receiving psychiatric treatment with Dr. Kaplan.
also noted Kessler’s depression and the effects of depression.
On September 9, 2011, Kessler was evaluated by Jennifer
Bush and Dr. Layden at the University of Pennsylvania Center for
On examination, they noted that Kessler was
disheveled, her affect was flat, her mood was depressed, she had
suicidal ideation, and her judgment was impaired.
diagnosed major depressive disorder, severe; generalized anxiety
disorder, and avoidant personality disorder.
Her GAF score was
assessed at 33 with a possible high of 38 over the past year.1
Kessler was also evaluated by Dr. Ryan at the Center for
Cognitive Therapy on September 27, 2011, who asked that
Kessler’s husband join them for the session.
severely underweight, disheveled, and wearing more clothing than
necessary for the weather.
On examination, Kessler had retarded
motor activity, depressed mood, dysphoric affect, slow speech,
blocked thought process, somnolent orientation, and slow or
GAF is an abbreviation for global assessment of functioning.
The Social Security Administration considers GAF scores, along
with other opinion evidence, but will only give the scores
significant weight when they are supported by other evidence.
See Lopez v. Colvin, 2017 WL 1217111, at *13 (D. Mass. Mar. 31,
2017). “A GAF score of 31 to 40 reflects ‘[s]ome impairment in
reality testing or communication (e.g. speech is at times
illogical, obscure, or irrelevant) OR major impairment in
several areas, such as work or school, family relations,
judgment, thinking, or mood (e.g. depressed man avoids friends,
neglects family, and is unable to work) . . . ).’” West v.
Colvin, 2016 WL 7048694, at *9, n.4 (D. Me. Dec. 5, 2016)
(quoting American Psychiatric Ass'n, Diagnostic and Statistical
Manual of Mental Disorders 32 (4th ed., text rev. 2000) (“DSMIV-TR”)).
Her insight and judgment were poor.
Dr. Ryan diagnosed major depressive disorder, severe, and a
possible dependent personality disorder.
Dr. Ryan also
discussed Kessler’s condition at length with Dr. Kaplan who was
then Kessler’s treating psychiatrist.
In April of 2012, Kessler was admitted to an eating
disorder facility because of her weight loss, where she was
treated for a month.
Kessler was diagnosed with anorexia
nervosa, secondary to depression and severe depression.
score was assessed to be between 25 and 30.2
When she left the
facility, Kessler’s GAF score was assessed at 45, with extremely
poor insight and judgment.3
Kessler continued treatment for depression and her eating
disorder after her discharge.
In July of 2013, Kessler was
admitted for inpatient psychiatric treatment at DartmouthHitchcock Medical Center for a week.
“A GAF score of 21 and 30 indicates behavior that is
considerably influenced by delusions or hallucinations or
serious impairment in communication or judgment (e.g., sometimes
incoherent, acts grossly inappropriately, suicide preoccupation)
or inability to function in almost all areas (e.g., stays in bed
all day, no job, home, or friends).” Joint Statement of
Material Facts, doc. no. 11, at 12, n.4, (citing DSM-IV-TR at
“GAF score of 41 to 50 indicates “[s]erious symptoms (e.g.,
suicidal ideation, several obsessional rituals, frequent
shoplifting) [or] any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to
keep a job).” Id.
symptoms of depression that showed a worsening ability to
Her GAF score was assessed at 25.
Kessler was given
electroconvulsive therapy (ECT) and was discharged in
Kessler continued to receive treatment
On February 3, 2014, Dr. Michael Schneider, a state agency
psychologist consultant, reviewed some of Kessler’s records.
Because Dr. Schneider was not given Kessler’s records before her
date last insured, December 31, 2009, he concluded that she had
no medically determinable impairments during the relevant time.
Dr. Kaplan submitted a second letter in August of 2014
because he could not find Kessler’s records.
He completed a
form to show Kessler’s symptoms, but he did not complete the
part related to her functional limitations.
Dr. Roston, a psychiatrist at West Central Behavioral
Health, began treating Kessler in July of 2013.
In November of
2014, Dr. Roston provided a written opinion in which she
described Kessler’s symptoms and noted that Kessler was not able
to function in a work role, at home, or for her own self care.
Dr. Roston also wrote, based on Kessler’s medical history, that
Kessler had been chronically fatigued and unable to work since
She also found that Kessler had been limited on a
sustained basis in nearly all of the functional categories on
the Mental Impairment Questionnaire.
Dr. Duncan, who had
treated Kessler since 2013, stated that she suffered from
severe, treatment-resistant depression with psychosis which
severely limited her daily functioning.
A hearing was held on Kessler’s application on May 14,
Kessler had an appointed representative at the hearing
Her husband also testified.
The ALJ issued a decision on June 9, 2015, finding, at Step
Two, that Kessler had medically impairments of depression and
anxiety before her date last insured but that neither impairment
nor the combination of the impairments was severe at that time.4
As a result, the ALJ completed the sequential analysis at Step
Two and found that Kessler was not disabled.
Council denied review.
Kessler contends that the ALJ erred in finding at Step Two
that she did not have severe medically determinable impairments
and erred in failing to use a medical expert to review Kessler’s
In determining whether a claimant is disabled, the ALJ
follows a five-step sequential analysis. 20 C.F.R. § 404.1520.
The steps are (1) determining whether the claimant is engaged in
substantial gainful activity; (2) determining whether she has a
severe impairment; (3) determining whether the impairment meets
or equals a listed impairment; (4) assessing the claimant’s
residual functional capacity and her ability to do past relevant
work; and (5) determining whether the claimant can make an
adjustment to other work. 20 C.F.R. § 404.1520(a).
medical evidence before her date last insured.
Commissioner moves to affirm, arguing that although the evidence
could support different conclusions, there is adequate evidence
to support the decision.
The Acting Commissioner also argues
that expert medical testimony was not needed because the record
unambiguously shows that Kessler was not disabled before her
date last insured.
To be eligible for disability insurance benefits, the
claimant must show that she was disabled before the expiration
of her insured status, known as the date last insured.
Rivera v. Sec’y of Health & Human Servs., 818 F.2d 96, 97 (1st
Cir. 1986); Titles II and XVI: Onset of Disability, (“SSR 8320”), 1983 WL 31249, at *1 (Jan. 1, 1983) (“A title II worker
cannot be found disabled under the Act unless insured status is
also met at a time when the evidence establishes the presence of
a disabling condition(s).”).
Therefore, an ALJ is required to
determine, based on the record evidence, at least whether the
claimant was disabled before her date last insured.
at *1; Fisher v. Colvin, 831 F.3d 31, 34-35 (1st Cir. 2016).
When the alleged disability is of a nontraumatic origin,
the ALJ considers the “applicant’s allegations, work history, if
any, and the medical and other evidence concerning impairment
SSR 83-20, at *2.
The medical evidence may allow
the ALJ to infer whether the claimant had disabling impairments
before her date last insured, the onset date, or may be
insufficient so that additional information is needed.
“At the hearing, the administrative law judge (ALJ) should
call on the services of a medical advisor when onset must be
In this case, the ALJ concluded his analysis at Step Two.
Step Two operates as a screening mechanism to identify those
medically determinable impairments that could affect the
claimant’s ability to work.
McDonald v. Sec’y of Health & Human
Servs., 795 F.2d 1118, 1122-26 (1st Cir. 1986).
mechanism is “no more than a de minimis policy” so that “‘[i]f
an adjudicator is unable to determine clearly the effect of an
impairment or combination of impairments on the individual’s
ability to do basic work activities, the sequential evaluation
process should not end with the not severe evaluation step.’”
Id. at 1125 (quoting Titles II and XVI:
That Are Not Severe, (“SSR 85-28”), 1985 WL 56856).
The ALJ here candidly acknowledged the lack of opinion
evidence about the severity of Kessler’s mental impairments
before her date last insured and discounted the retrospective
opinions that were provided.
The ALJ also acknowledged that
there were no mental functional capacity assessments for him to
consider and that he was not permitted to interpret raw medical
data to assess functional capacity.
Nevertheless, the ALJ decided that a medical advisor was
not necessary because SSR 83-20 did not apply when the claimant
had not been found to be disabled after her date last insured.
Then, based on his own evaluation of the record, the ALJ found
at Step Two that Kessler did not have a severe medically
determinable impairment or combination of impairments before her
date last insured.
Since the ALJ issued his decision, the First Circuit has
examined SSR 83-20 and expressed doubt about the Acting
Commissioner’s “gaps and inconsistencies as to the general
applicability of SSR 83-20.”
(1st Cir. 2016).
Fischer v. Colvin, 831 F.3d 31, 38
The court assumed that SSR 83-20 applied in
that case but concluded that the district court erred in finding
that the medical evidence was ambiguous.
As a result, the
court did not decide whether a medical advisor is necessary only
when a claimant has been found to be disabled or also when
disability and onset date must be inferred from ambiguous
evidence without a present finding of disability.
As the First Circuit noted, courts have interpreted SSR 8320 differently with respect to whether a finding of disability
is necessary to trigger the requirement that an ALJ call on the
services of a medical advisor when onset date must be inferred
from ambiguous records.
Fischer, 831 F.3d at 37.
See, e.g., Mazonson v. Colvin, 2016 WL 6776280, at
*8-*9 (D. Mass. Nov. 15, 2016); Duncan v. Colvin, 2016 WL
5477567, at *4-*5 (D. Me. Sept. 28, 2016).
In this case, Kessler apparently did not apply for
Supplemental Security Income benefits, and she has not shown
that a disability determination was made after her date last
Therefore, even if SSR 83-20 did provide a requirement
to use a medical advisor when a claimant was found to be
disabled after her date last insured, here there was no finding
As the ALJ acknowledged, the record lacks any mental
residual functional capacity assessments done during the
He also acknowledged that he is not authorized
On October 17, 2016, the Social Security Administration
issued an “Emergency Message” to clarify that SSR 83-20 does not
impose a mandatory requirement for a medical advisor under any
circumstances. Harlan v. Berryhill, 2017 WL 1398535, at *3
(E.D. Cal. Apr. 19, 2017). The Emergency Message was issued
after the ALJ’s decision and was not raised in this case.
to interpret raw medical data in functional terms.
v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).
ALJ apparently thought that he could not call on the services of
a medical advisor because that was not required under SSR 83-20.
Despite the recognized evidentiary issues and the lack of a
finding of a severe impairment at Step Two, the ALJ effectively
proceeded to Step Three to consider whether Kessler’s medically
determinable medical impairments, although not severe, would
meet or equal the mental disorders described in Section 12.00C
of the Listing of Impairments, 20 C.F.R. Part 404, Subpart P,
The ALJ found that Kessler had only “mild
limitation” in the first three functional areas and had no
episodes of decompensation.6
It is unclear what evidence the ALJ
used to support those findings.
Whether or not the ALJ was required under SSR 83-20 to call
on the services of a medical advisor, the ALJ recognized that a
gap existed in the records due to the absence of functional
See Heggarty v. Sullivan, 947 F.2d 990, 997 (1st
In addition, the ALJ rejected the opinions of
Kessler’s medical providers and relied solely on his own
This appears to have been a tautological exercise given the
ALJ’s determination at Step Two that Kessler did not have a
severe impairment or combination of impairments.
interpretation of the record.7
As a result, the ALJ “effectively
substituted his own judgment for medical opinion” which he
Alcantara v. Astrue, 257 F. App’x 333, 334 (1st Cir.
2007); Hall v. Colvin, 18 F. Supp. 3d 144, 152 (D.R.I. 2014).
As a result, substantial evidence does not support the
ALJ’s finding at Step Two that Kessler was not disabled.
For the foregoing reasons, the claimant’s motion to reverse
(document no. 9) is granted.
The Acting Commissioner’s motion
to affirm (document no. 13) is denied.
The case is remanded for further proceedings pursuant to
Sentence Four of § 405(g).
The clerk of court shall enter judgment accordingly and
close the case.
Joseph DiClerico, Jr.
United States District Judge
April 25, 2017
cc: Janine Gawryl, Esq.
Robert J. Rabuck, Esq.
The ALJ said that he concurred with Dr. Schneider’s opinion,
which the ALJ misunderstood as concluding that there was
insufficient evidence to show a severe medically determinable
impairment before the date last insured. Instead, Dr. Schneider
was not given Kessler’s records prior to December of 2013 and,
therefore, could provide no opinion about a medically
determinable impairment prior to Kessler’s date last insured.
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