Kessler v. US Social Security Administration, Acting Commissioner

Filing 14

///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
v.

Civil No. 16-cv-349-JD
Opinion No. 2017 DNH 082

Nancy A. Berryhill,
Acting Commissioner,
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.

Kessler

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.

The Acting

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
evidence.

§ 405(g); see also Fischer v. Colvin, 831 F.3d 31, 34

(1st Cir. 2016).
scintilla.

“Substantial evidence is more than a mere

It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.”

Castillo

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
conclusion.”

Id. (internal quotation marks omitted).
Background

Kessler applied for social security disability benefits in
November of 2013, claiming an onset of disability in December of
2004.

Kessler claimed disability due to depression, anxiety,

and an eating disorder.

Her date last insured was December 31,

2009.
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.

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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
examination.

Kessler reported six years of depression,

exacerbated by the loss of her job and the death of friends.

On

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
medication.

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
treatment.

Beginning in December of 2007, Kessler’s husband

accompanied her to appointments with Dr. Cambrone.

Dr. Cambrone

continued to diagnose major depressive disorder and increased or
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changed Kessler’s medications as needed.

In March of 2008,

Kessler reported no improvement and said that she wanted to stop
taking medications.

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

Kessler’s records.

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
adult children.

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.

Dr. Goldman

also noted Kessler’s depression and the effects of depression.

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On September 9, 2011, Kessler was evaluated by Jennifer
Bush and Dr. Layden at the University of Pennsylvania Center for
Cognitive Therapy.

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.

They

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.

Kessler was

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”)).
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sluggish concentration.

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

Her GAF

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.

Kessler demonstrated

“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
34).
2

“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.
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symptoms of depression that showed a worsening ability to
function.

Her GAF score was assessed at 25.

Kessler was given

electroconvulsive therapy (ECT) and was discharged in
satisfactory condition.

Kessler continued to receive treatment

for depression.
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
1990.

She also found that Kessler had been limited on a

sustained basis in nearly all of the functional categories on
the Mental Impairment Questionnaire.
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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,
2015.

Kessler had an appointed representative at the hearing

and testified.

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.

The Appeals

Council denied review.
Discussion
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).
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medical evidence before her date last insured.

The Acting

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.
A.

Insured Status
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.

Cruz

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.

SSR 83-20,

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

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severity.”

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.
*3.

Id. at

“At the hearing, the administrative law judge (ALJ) should

call on the services of a medical advisor when onset must be
inferred.”
B.

Id.

Step Two
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).

The screening

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:

Medical Impairments

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

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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.
C.

Medical Advisor
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.

Id.

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.

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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.
continues.5

Fischer, 831 F.3d at 37.

The debate

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
insured.

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
of disability.
D.

Substantial Evidence
As the ALJ acknowledged, the record lacks any mental

residual functional capacity assessments done during the
relevant period.

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.
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to interpret raw medical data in functional terms.
v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).

See Nguyen

Nevertheless, the

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,
Appendix 1.

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
assessments.
Cir. 1991).

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.
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interpretation of the record.7

As a result, the ALJ “effectively

substituted his own judgment for medical opinion” which he
cannot do.

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.
Conclusion
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.
SO ORDERED.
__________________________
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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