MEE v. COMMISSIONER OF SOCIAL SECURITY et al

Filing 10

OPINION. Signed by Judge Jose L. Linares on 5/5/14. (DD, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOHN MEE,
Plaintiff,
v.

Civil Action No. 1 3-03754(JLL)

OPINION

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

LINARES, District Judge.
Before the Court is Plaintiff John Mee (“Plaintiff’)’s appeal, seeking review of a final
determination by Administrative Law Judge (“AU”) Leonard Olarsch denying his application
for a period of disability and disability insurance benefits (“DIB”). The Court resolves this
matter on the parties’ briefs pursuant to Local Civil Rule 9.1 (f). For the reasons set forth below,
the Court REMANDS the final decision of the Commissioner of Social Security.
I.

BACKGROUND

This case turns on whether substantial evidence supports the AU’s decision that Plaintiff
was not under a disability within the meaning of the Social Security Act from May 30, 2000,
when he alleged he became disabled, through September 30, 2004, the date he was last insured.
Plaintiff maintains that he was disabled within the meaning of the Social Security Act
from May 30, 2000 through July 18, 2011, the date of the AU’s decision. (See Pl.’s Br. 1, ECF
No. 7). Plaintiff was born on September 22, 1947, and applied for benefits in October 2008. (R.

at 132).’ He was previously married but divorced his wife in September of 1983. (Id. at 133).
He remains single and does not have any children. LId.). Since 1995, Plaintiff has generally
lived in an attic “not outfitted with proper heating, air conditioning, plumbing, ventilation,
lighting or bedding.” (Id. at 1106). He moved into a shelter during the summer and winter
months due to weather extremes. (Id.). Plaintiff began receiving services at the East Orange
Veterans Hospital in February 2007, at which time he was homeless. (Id.).
Plaintiff has a master’s degree in business administration. (Id.). From 1970 through
1973, he worked as a Russian linguist in the military and then worked in a government job from
1975 through 1987. (Id.). In 1987, he began to show poor work stability and he ultimately
ceased working in 1994. (Id.).
Plaintiff maintains that he is disabled due to the limitations resulting from his major
depression and anxiety disorder. A discussion of Plaintiffs impairments follows.
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A. Plaintiffs Major Depression and Anxiety Related Disorder
Plaintiff suffers from major depression, which has resulted in his complete social
isolation, suicidal ideation, and poor overall functioning. (Id.at 1106). Despite ongoing
treatment, Plaintiff continues to suffer from symptoms of major depression and anxiety. (id.).
In September 2007, Dr. Andrea Cruz, a clinical psychologist of the East Orange Veterans
Hospital, began treating Plaintiff. (Id.). At that time, he presented with “a significant history of
major depression, anxiety, and alcohol dependence.” (Id.). In particular, Dr. Cruz noted and
further testified at the hearing before the AU that Plaintiffs alcohol dependence had been in
remission for several years and that it has shown itself to be a secondary illness. (Id. at 42, 47,
l

“R.” refers to the pages of the Administrative Record.
Plaintiff initially filed for disability benefits on the basis of ischemic heart disease and major depression.
However, he has since conceded that there was no evidence that ischemic heart disease existed prior to his
date last
insured and that the ischemic heart disease was not diagnosed until 2008. (P1’s Br. 5). As such, this Opinion
discusses only Plaintiff’s major depression and anxiety related disorder.

2

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1106). Dr. Cruz’s notes from September 13, 2010 also state that Plaintiff was disabled well prior
to 2004 and that he continues to be disabled. (Id. at 42-43, 1106).
Dr. Fouad Eljarrah, Plaintiff’s psychiatrist, opined in a November 5, 2010 report that
Plaintiffs alcoholism was not a significant factor contributing to his disability. (Id. at 2362).
On March 13, 2011, Dr. Eljarrah completed a Psychiatric Review Technique (PRT) form,
specifically diagnosing Plaintiff with depressive syndrome (Listing 12.04) and an anxiety related
disorder (Listing 12.06). (Id. at 2365). The PRT additionally provided that Plaintiff suffered
from marked limitations/difficulties in: (1) restrictions of daily living; (2) maintaining social
functioning; and (3) maintaining concentration, persistence or pace. (Id. at 2375). The PRT also
noted that Plaintiff has suffered three episodes of decompensation of extended duration. (Id. at
2375).
In support of his findings as to the depressive syndrome, Dr. Eljarrah provided that
Plaintiff suffered from a pervasive loss of interest in almost all activities, appetite disturbance
with change in weight, sleep disturbances, psychomotor agitation, decreased energy, feelings of
guilt or worthlessness, difficulty concentrating, and thoughts of suicide. (Id. at 2368). In support
of his findings as to the anxiety related disorder, Dr. Eljarrah found that Plaintiff suffered from a
general anxiety disorder accompanied by the following: motor tension, autonomic hyperactivity,
apprehensive expectation, and vigilance/scanning. (Id. at 2370). Dr. Eljarrah further noted that,
Plaintiffs anxiety-related disorder was characterized by the following: a persistent irrational fear
of a specific object, activity or situation which results in a compelling desire to avoid the dreaded
object, activity, or situation; recurrent severe panic attacks manifested by a sudden unpredictable
onset of intense apprehension, fear, terror, and sense of impending doom occurring on the
average of at least once a week; recurrent obsession or compulsions which are a source of

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marked distress; and recurrent and intrusive recollections of a traumatic experience, which are a
source of marked distress. (Id.).
At the hearing before AU Olarsch, Dr. Cruz testified that she agreed with Dr. Eljarrah’s
PRT findings. (Id. at 60). She additionally testified that Plaintiff’s major depression and anxiety
did not begin during the period of September 30, 2004 to February 2007, but rather that Plaintiff
suffered from major depression and anxiety long before September 30, 2004. (Id. at 63).
B.

Procedural History

Plaintiff initially filed an application with the Social Security Administration for benefits
on October 21, 2008. (Id. at 132). On January 15, 2009, the Administration denied Plaintiff’s
request for disability benefits. (Id. at 77). Plaintiff submitted a request for reconsideration on
May 3, 2010. (Id. at 87). Thereafter, the Administration had Plaintiff’s claim independently
reviewed by a physician and disability examiner upon his request for reconsideration. (Id. at 89).
Subsequently, on July 7, 2011, Plaintiff requested a hearing before an AU. (Id. at 95). The
hearing was held before AU Olarsch on June 16, 2011 in Newark, New Jersey. (Id. at 27, 31).
On July 18, 2011, AU Olarsch issued a decision finding that Plaintiff was not disabled
from September 30, 2004 through the date of decision. (Id. at 18-22). Thereafter, on September
12, 2011, Plaintiff sought Appeals Council review of AU Olarsch’s decision. (Id. at 5). The
Appeals Council denied Plaintiff’s request on April 15, 2013, rendering the AU’s decision the
final decision of the Commissioner. (Id. at 1). As a result, Plaintiff appealed to this Court on
June 18, 2013. (Compl., ECF No. 1). This Court has jurisdiction to review this matter pursuant
to 42 U.S.C.

§ 405(g).

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II.

LEGAL STANDARD

A.

The Five-Step Process for Evaluating Whether a Claimant Has a Disability

Under the Social Security Act, the Administration is authorized to pay DIB to “disabled”
persons. 42 U.S.C.

§ 423(a). A person is “disabled” if he is unable “to engage in any substantial

gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or 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)(l)(A). A person is unable to engage

in substantial gainful activity when his physical or mental impairments are “of such severity that
he is not only unable to do his previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful work which exists in the
national economy.

.

.

.“

42 U.S.C.

§ 423(d)(2)(A).

Regulations promulgated under the Social Security Act establish a five-step process for
determining whether a claimant is disabled. 20 C.F.R.

§ 404.1520(a)(l). At step one, the AU

assesses whether the claimant is currently performing substantial gainful activity. 20 C.F.R.

§

404.1 520(a)(4)(i). If so, the claimant is not disabled and, thus, the process ends. Id. If not, the

AU proceeds to step two and determines whether the claimant has a “severe” physical or mental
impairment or combination of impairments. 20 C.F.R.

§ 404.l520(a)(4)(ii). Absent such

impairment, the claimant is not disabled. Id. Conversely, if the claimant has such impairment,
the AU proceeds to step three. Id. At step three, the AU evaluates whether the claimant’s
severe impairment either meets or equals a listed impairment. 20 C.F.R.

§ 404.1 520(a)(4)(iii). If

so, the claimant is disabled. Id. Otherwise, the AU moves on to step four, which involves three
sub-steps:
(1) the AU must make specific findings of fact as to the claimant’s
[RFC}; (2) the AU must make findings of the physical and mental
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demands of the claimant’s past relevant work; and (3) the AU
must compare the [RFC] to the past relevant work to determine
whether claimant has the level of capability needed to perform the
past relevant work.
Burnett v. Comm ‘r of Soc. Sec. Admin., 220 F.3d 112, 120 (3d Cir. 2000) (citations omitted).
The claimant is not disabled if his RFC allows him to perform his past relevant work. 20 C.F.R.

§ 404.1 520(a)(4)(iv). However, if the claimant’s RFC prevents him from doing so, the AU
proceeds to the fifth and final step of the process. Id.
The claimant bears the burden of proof for steps one through four. Poulos v. Comm ‘r of
Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007) (citing Ramirez v. Barnhart, 372 F.3d 546, 550 (3d Cir.
2004)). “At step five, the burden of proof shifts to the Social Security Administration to show
that the claimant is capable of performing other jobs existing in significant numbers in the
national economy, considering the claimant’s age, education, work experience, and [RFC).” Id.
(citing Ramirez, 372 F.3d at 551).
B.

The Standard of Review: “Substantial Evidence”
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This Court must affirm an AU’s decision if it is supported by substantial evidence. See
42 U.S.C.

§ 405(g), 1383(c)(3). Substantial evidence is “more than a mere scintilla. It means

such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). To determine whether an AU’s decision is supported by substantial evidence,
this Court must review the evidence in its totality. Daring v. Heckler, 727 F.2d 64, 70 (3d Cir.
1984). However, this Court may not “weigh the evidence or substitute its conclusions for those
of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992) (citation omitted).

Because the regulations governing supplemental security income—20 C.F.R. § 416.920—are identical to those
covering disability insurance benefits—20 C.F.R. § 404.1520—this Court will consider case law developed under
both regimes. Rutherford v. Barnhart, 399 F.3d 546, 551 n. I (3d Cir. 2005) (citation omitted).

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Consequently, this Court may not set an AU’s decision aside, “even if [it] would have decided
the factual inquiry differently.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citations
omitted).
III.

DISCUSSION

At step one, the AU found that Plaintiff had not engaged in substantial gainful activity
during the period at issue. (R. at 20). At step two, the AU determined that throughout the date
last insured there were no medical signs or laboratory findings to substantiate the existence of a
medically determinable impairment. (Id.). Thus, the AU concluded that Plaintiff was not
disabled and did not proceed beyond step two of the five-step sequential evaluation. (Id. at 21).
Plaintiff contends that this Court should remand the AU’s decision at step two because the AU:
(1) improperly focused on Plaintiffs failure to seek treatment; (2) improperly established an
onset date and further failed to consult a medical advisor; and (3) failed to give controlling
weight to treating source opinion and substituted his own opinion for the opinions of the treating
physicians. (Pl.’s Br. 11). Plaintiff additionally requests that if this case is remanded, it be
remanded to a different AU. (Id. at 27). The Court finds that the AU’s failure to establish an
onset date and consult a medical advisor in doing so warrants remand in this case. See e.g.
Mauriello v. Astrue, CIV.09-3360 (RMB), 2010 WL 2079717 at *8 (D.N.J. May 25, 2010)
(remanding the AU’s determination where the AU failed to apply SSR 83-20 in determining the
onset date of plaintiffs disability).
A. Whether the AU Improperly Determined the Onset Date and Failed Consult a
Medical Advisor in Violation of SSR 83-20
Plaintiff contends that the AU’s determination at step two violated SSR 83-20. (Pl.’s Br.
14). In particular, Plaintiff argues that the AU made no effort to determine the onset date of
Plaintiffs major depression. (Id. at 14-15). Additionally the AU rejected the opinions of
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treating sources and failed to seek the opinion of a medical advisor to assist in determining the
onset date. (Id. at 15). Defendant counters that (1) SSR 83-20 is inapplicable in this case
because the AU’s determination that Plaintiff was not disabled obviated the duty under SSR 8320 to determine an onset date of disability; and (2) in the alternative, SSR 83-20 applies to
establishing the onset of slowly progressive impairments and Plaintiff has failed to establish that
his major depression was a slowly progressive impairment. (Def’s Br. 18-19).
Defendant’s first argument, that SSR 83-20 does not apply here because the AU’s
determination that Plaintiff was not disabled relieved him of the duty to determine the onset date
of Plaintiffs alleged disability is unpersuasive. (See id. at 18). As an initial mater, the step-two
inquiry into severity “is a de minimis screening device to dispose of groundless claims.” Newell
v. Comm ‘r ofSoc. Sec., 347 F.3d 541, 546 (3d Cir. 2003) (citations omitted). “Although the
regulatory language speaks in terms of ‘severity,’ the Commissioner has clarified that an
applicant need only demonstrate something beyond ‘a slight abnormality or a combination of
slight abnormalities which would have no more than a minimal effect on an individual’s ability
to work.” lvlcCrea v. Comm ‘r ofSoc. Sec., 370 F.3d 357, 360 (3d Cir. 2004); see also
Jakubowski v. Comm ‘r ofSoc. Sec., 215 F. App’x 104, 107 (3d Cir. 2007) (internal citations
omitted) (holding that “[ijf the evidence presented by the claimant presents more than a ‘slight
abnormality,’ the step-two requirement of ‘severe’ is met, and the sequential evaluation process
should continue.”). SSR 83-20 provides that
[wjith slowly progressive impairments, 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, it will be necessary to
infer the onset date from the medical and other evidence that
describe the history and symptomatology of the disease process.
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It is well established that SSR 83-20 is applicable to situations such as this one, where medical
evidence from the relevant period is unavailable. Newell, 347 F.3d at 549 (citing DeLorme

1’.

Sullivan, 924 F.2d 841, 848 (9th Cir. 1991)) (“In the event that the medical evidence is not
definite concerning the onset date and medical inferences need to be made, SSR 83-20 requires
the administrative law judge to call upon the services of a medical advisor.”).
Here, Dr. Cruz testified that she never spoke to anyone who treated Plaintiff prior to the
relevant period. (R. at 43). However, Dr. Cruz further testified that she did not think that
anyone in their right mental state would live in an attic for over ten years when his family
members were encouraging him to move into an apartment in the basement of the house. (Id. at
48-49). Dr. Cruz further explained that prior to September 2004 Plaintiff did not have any
activities outside of the attic and that he spent most of his time there. (Id. at 49). The AU did
not question Plaintiff as to why he failed to seek medical treatment prior to February 2007.
Rather, the AU’s questioning of Plaintiff pertained to whether he suffered from a cardiac
disorder and whether Plaintiff was disabled prior to September 2004. (Id. at 3 5-36, 68); see also
Newell, 347 F.3d at 547 (internal citations omitted) (holding that “[r]etrospective diagnosis of an
impairment, even if uncorroborated by contemporaneous medical records, but corroborated by
lay evidence relating back to the claimed period of disability, can support a finding of past
impairment.”). Thus, the evidence presented at the hearing before the AU should have
prompted the AU to infer the onset date of Plaintiff’s depression. Instead, the AU determined
that because there were no medical signs or laboratory findings to substantiate the existence of a
medically determinable impairment through the date last insured Plaintiff was not disabled. (R.
at 21). As such, the AU’s failure to infer an onset date was in violation of SSR 83-20.

See

SSR 83-20 (where adequate medical records are unavailable “it [is necessary to infer the onset
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date from the medical and other evidence that describe the history and symptomatology of the
disease process.”).
Defendant’s second argument that Plaintiff failed to establish that he suffers from a
slowly progressive impairment and as such SSR 83-20 is inapplicable, is similarly unpersuasive.
(Def, ‘s Br. 18-19). As an initial matter, depression has been held to be a slowly progressive
impairment in instances where the claimant’s condition worsens over a period of time. See e.g.
Kirkwoodv. Astrue, CFV.A.09-1347, 2010 WL 3239167 at *1 (E.D. Pa. Aug. 11,2010) (holding
that “a worsening of [claimant’s] symptoms

...

evidence[d] the progressive nature of

[claimant’s] disease.”); see also Wilson v. Astrue, 10-45 17, 2011 WL 2036673 at *5 (E.D. Pa.
May 24, 2011) (internal citations and quotations omitted) (holding that “the AU must infer the
onset date based on an unclear medical record and [where] the impairment at issue becomes
progressively worse over an extended period of time.”). Moreover, as argued by Plaintiff, SSR
83-20 dictates that an “AU should call on the services of a medical advisor when he or she must
infer the onset date of an impairment that is not clear from the applicant’s medical records.”
Jakubowski, 215 F. App’x at 107 (quoting SSR 83-20). In such circumstances where reasonable
inferences about the progression of the impairment cannot be ascertained “on the basis of the
evidence in the file and additional medical evidence is not available, it may be necessary to
explore other sources of documentation.” Newell, 347 F.3d at 549. Such information “may be
obtained from family members, friends, and former employers to ascertain why medical
evidence is not available for the pertinent period and to furnish additional evidence regarding the
course of the individual’s condition.” Id.
Here, the AU noted that there is no medical evidence to substantiate Plaintiffs claimed
depression. (R. at 21). However, Dr. Cruz testified that she believed Plaintiffs disabling

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impairment existed prior to her treatment of Plaintiff. (Id. at 43). Additionally, a letter from
Plaintiffs sister, Joanna Gibson was read into the record at the hearing. (Id. at 44-46). In
relevant part, the letter provided that following the death of their mother in 1993, Plaintiff lived
in the attic of the family home and refused to move into an apartment on the second floor. (Id.).
The letter additionally provided that he was not really functioning, he had suicidal ideations, he
isolated himself from his family and he had no friends. (Id. at 45-46). The letter from Plaintiffs
sister ultimately discussed the progression of Plaintiffs depression from the time his mother
passed away until December 2010. (Id. at 45-46, 201-202).
Despite the testimony of Dr. Cruz, the AU’s decision provided that he gave little weight
to all of the treating source opinions which provided that Plaintiffs disability started prior to the
date last insured on the ground that such opinions are not based on contemporaneous reports but
rather on Plaintiffs subjective history as recounted to his treating physicians. (Id. at 21). While
the AU disregarded the opinions of Plaintiffs treating doctors, the AU also failed to seek
medical advice from a medical expert in the field of psychiatry. See Orquera v. Comm ‘r ofSoc.
Sec., 416 F. App’x 139, 142 (3d Cir. 2008) (internal citations and quotations omitted) (holding
that “SSR 83-20 instructs the AU to infer the onset date from the evidence but requires that the
AU’s judgment have a legitimate medical basis.”). The AU similarly failed to consider the
letter from Plaintiffs sister. (R. at 21). The AU did not make reference to or provide his
reasons for discounting the letter submitted by Plaintiffs sister, which attested to Plaintiffs
condition prior to September 2004. (Id.).
Accordingly, the ALl’s finding was in violation of SSR 83-20. See Klangwald v.
Comm ‘r ofSoc. Sec., 269 F. App’x 202, 205 (holding that “we have generally applied SSR 83-20
only where medical evidence from the relevant period is unavailable.”); see also Newell, 347

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F.3d at 549 (holding that where there is a lack of medical evidence it “may be necessary to
explore other sources of documentation.”). This Court remands the AU’s determination as to
the onset date of Plaintiff’s disability. The Court further directs the AU to adhere to SSR 83-20,
seek medical advice and explore other sources of documentation in determining the onset date of
Plaintiff’s disability.
B. Plaintiff Fails to Establish Bias
Plaintiff additionally argues that remand to a different AU is appropriate. (Pl.’s Br. 27).
The Third Circuit has held that claimants are entitled to have evidence evaluated by an unbiased
adjudicator. See Hummel v. Heckler, 736 F.2d 91, 95 (3d Cir. 1984). The right to an impartial
decision-maker is of even greater importance in administrative proceedings in light of the
absence of procedural safeguards which are normally available in judicial matters. See Ventura
v. Shalala, 55 F.3d 900, 903 (3d Cir. 1995). Nonetheless, hearing officers are provided a
presumption of impartiality unless a claimant is able to demonstrate that they have “display[ed]
deep-seated favoritism or unequivocal antagonism that would make fair judgment impossible.”
Liteky v. United States, 510 U.S. 540, 555 (1994).

Here, Plaintiff argues that the AU has demonstrated bias on the basis that he completely
ignored all evidence in the record in favor of his own lay opinion regarding Plaintiff’s
depression. (Pl.’s Br. 27). In instances where the court has remanded a case to a different AU,
“there has been evidence of coercion, intimidation, or other misconduct on the part of the
original AU.” Ventura, 55 F.3d at 902. Plaintiff in this case points to nothing to establish a
“deep-seated favoritism or unequivocal antagonism” necessary to establish bias. See Liteky, 510
U.S. at 555 (holding that a basis for bias requires “a deep-seated favoritism or antagonism that
would make fair judgment impossible”). Plaintiff offers only the AU’s improper finding that

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Plaintiff’s depression was not severe. Afier reviewing the transcript, there is no reason to find
that the AU in this case demonstrated bias towards Plaintiff. Thus, the Court rejects Plaintiff’s
request for a different AU on remand.
IV.

CONCLUSION

The Court has reviewed the entire record and, for the reasons discussed above, finds that
the AU’s determination at step two that Plaintiff was not disabled is not supported by substantial
evidence. Accordingly, the Court remands this matter to the AU. On remand, the Court directs
the AU to adhere to SSR 83-20, seek medical advice and explore other sources of
documentation in determining the onset date of Plaintiff’s disability. If the AU determines that
Plaintiff has a severe impairment or combination of impairments, the AU is further directed to
continue on with the sequential evaluation process. An appropriate Order accompanies this
Opinion.

LINARES
JUDGE
DATED: May, 2014

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