LOVE v. COMMISSIONER

Filing 27

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 04/10/2014 as set out herein. RECOMMENDED that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Summary Judgment (Docket Entry 18 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 20 ) be granted, and that this action be dismissed.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

EMMA KATHY LOVE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,1
Defendant.

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1:07CV0648

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Emma Kathy Love, brought this action for judicial
review of a final decision of Defendant, the Commissioner of Social
Security,

denying Plaintiff’s

claims

for

Disability

Insurance

Benefits (“DIB”) and Supplemental Security Income (“SSI”) under
Titles II and XVI, respectively, of the Social Security Act (the
“Act”).

(Docket Entry 2.)

The Court has before it the certified

administrative record (cited as “Tr. __”), as well as the parties’
cross-motions for judgment (Docket Entries 18, 20).

For the

reasons that follow, the Court should enter judgment for Defendant.
PROCEDURAL HISTORY
Plaintiff filed an application for DIB alleging a disability
onset date of August 25, 1999.

(Tr. 54-56.)

Following denial of

1
Carolyn W. Colvin became the Acting Commissioner of Social Security on
February 14, 2013, resulting in her substitution as Defendant pursuant to Federal
Rule of Civil Procedure 25(d).

that application both initially and upon reconsideration (Tr. 3940), Plaintiff requested a hearing de novo before an Administrative
Law Judge (“ALJ”) (Tr. 53), who subsequently ruled Plaintiff not
disabled

under

the

Act

(Tr.

266-79).

The

Appeals

thereafter denied Plaintiff’s request for review.

Council

(Tr. 348-50.)

Plaintiff then filed an unsuccessful application for SSI (Tr.
374-75), as well as her instant Complaint in this Court (Docket
Entry 2). The Court subsequently entered a consent order remanding
the matter for reconstruction of the administrative record in light
of missing exhibits (but without entry of judgment in this action).
(Docket Entry 10.)

When the Appeals Council made a referral to the

ALJ pursuant to that consent order, it directed the ALJ to consider
whether to consolidate Plaintiff’s SSI claim with her DIB claim at
issue in this case.

(Tr. 368.)

The ALJ reopened the denial of the

SSI application and consolidated that matter with the DIB claim
covered by the consent order.
and

a

vocational

expert

supplemental hearing.

(Tr. 12.)
(“VE”)

Plaintiff, her attorney,

thereafter

(Tr. 594.)

appeared

at

a

The ALJ then again denied

Plaintiff’s DIB claim, but granted her SSI claim as of the SSI
application date.
In

reaching

(Tr. 24.)
that

decision,

the

ALJ

made

the

following

findings, adopted by the Commissioner:
1. [Plaintiff] met the insured status requirements of
the [] Act through March 31, 2005.

2

2. [Plaintiff] has not engaged in substantial gainful
activity since August 25, 1999, the alleged onset date
. . . .
3. Since the onset date of disability, [Plaintiff] has
had the following severe impairments: degenerative disc
disease of the lumbar spine, chronic left hip bursitis,
left knee chondromalacia, obesity, and a depressive
disorder . . . .
4. Since the alleged onset date of disability,
[Plaintiff] has not had an impairment or combination of
impairments that meets or medically equals one of the
listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 . . . .
5. . . . [D]uring the period through March 31, 2005, the
date last insured, [Plaintiff] had the residual
functional capacity to perform sedentary work as defined
in 20 CFR 404.1567(a) and 416.967(a) which is unskilled
and allows a sit/stand option.
. . . .
6. . . . [B]eginning on January 29, 2007, the date
[Plaintiff] filed her [SSI] application, [she] lack[ed]
the residual functional capacity to perform any
substantial gainful activity on a sustained basis.
. . . .
7. Since the alleged onset date of disability,
[Plaintiff] has been unable to perform past relevant work
(20 CFR 404.1565 and 416.965).
8. [Plaintiff] . . . was a younger individual age 18-44
on the alleged disability onset date (20 CFR 404.1563 and
416.963).
9. [Plaintiff] has at least a high school education and
is able to communicate in English (20 CFR 404.1564 and
416.964).
10. Transferability of job skills is not material to the
determination of disability during the period through
March 31, 2005, because using the Medical-Vocational
Rules as a framework supports a finding that [Plaintiff]
is “not disabled,” whether or not the claimant has
3

transferable job skills. Beginning on January 29, 2007,
[Plaintiff] has not been able to transfer any job skill
to other occupations (See SSR 82-41 and 20 CFR Part 404,
Subpart P, Appendix 2).
[Plaintiff] is limited to unskilled work.
11. During the period through March 31, 2005, considering
[Plaintiff’s] age, education, work experience and
residual functional capacity, there were a significant
number of jobs in the national economy that [she] could
have performed . . . .
12.
Beginning
on
January
29,
2007,
considering
[Plaintiff’s] age, education, work experience and
residual functional capacity, there are not a significant
number of jobs in the national economy that [she] could
perform . . . .
13. [Plaintiff] was not disabled prior to January 29,
2007, but became disabled on that date and has continued
to be disabled through the date of this decision (20 CFR
404.1520(g) and 416.920(g)).
14. [Plaintiff] was not under a disability within the
meaning of the [] Act at any time through March 31, 2005,
the date last insured (20 CFR 404.315(a) and 404.320(b)).
(Tr. 15-24.)
The instant action subsequently recommenced in this Court,
with Defendant answering (Docket Entry 16) and the parties filing
cross-motions for judgment (Docket Entries 18, 20).
Magistrate

Judge

Wallace

W.

Dixon

then

United States

recommended

entry

of

judgment for Defendant (Docket Entry 22), whereupon Plaintiff
objected (Docket Entry 24) and Defendant responded (Docket Entry
25).

The Court (per then-Chief Judge James A. Beaty, Jr.) ruled

that “the Recommendation of the Magistrate Judge is incomplete to
the

extent

that

it

addressed

only

4

the

[SSI]

claim

and

not

Plaintiff’s [DIB] claim.”
“the

matter

[was]

(Docket Entry 26 at 1-2.)

returned

to

the

consideration of the [DIB] claim . . . .”

As a result,

Magistrate

Judge

for

(Id. at 2.)

DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).

Hines v.

However, “the scope

of our review of [such a] decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
are not to try the case de novo.”
396, 397 (4th Cir. 1974).

“The courts

Oppenheim v. Finch, 495 F.2d

Instead, “a reviewing court must uphold

the factual findings of the ALJ [underlying the denial of benefits]
if they are supported by substantial evidence and were reached
through application of the correct legal standard.”

Hines, 453

F.3d at 561 (internal brackets and quotation marks omitted).
“Substantial evidence means ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting
Richardson v. Perales, 402 U.S. 389, 390 (1971)).

“It consists of

more than a mere scintilla of evidence but may be somewhat less
than a preponderance.”

Mastro v. Apfel, 270 F.3d 171, 176 (4th

Cir. 2001) (internal citations and quotation marks omitted).

“If

there is evidence to justify a refusal to direct a verdict were the

5

case before a jury, then there is substantial evidence.”

Hunter,

993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake

to

re-weigh

conflicting

evidence,

make

credibility

determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].”

Mastro, 270 F.3d at 176 (internal

brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled,

the

responsibility

for

that

decision

falls

on

the

[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
In confronting the issue so framed, the Court must take note
that “[a] claimant for disability benefits bears the burden of
proving a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.
1981),

and

that,

in

this

context,

“disability”

means

the

“‘inability 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

6

Id. (quoting 42 U.S.C. § 423(d)(1)(A)).2

months.’”

“To regularize

the adjudicative process, the Social Security Administration has
. . . detailed regulations incorporating longstanding medicalvocational evaluation policies that take into account a claimant’s
age, education, and work experience in addition to [the claimant’s]
medical

condition.”

Id.

“These

regulations

establish

a

‘sequential evaluation process’ to determine whether a claimant is
disabled.”

Id. (internal citations omitted).

This process has up to five steps: “The claimant (1) must not
be engaged in ‘substantial gainful activity,’ i.e., currently
working; and (2) must have a ‘severe’ impairment that (3) meets or
exceeds the ‘listings’ of specified impairments, or is otherwise
incapacitating to the extent that the claimant does not possess the
residual functional capacity to (4) perform [the claimant’s] past
work or (5) any other work.”

Albright v. Commissioner of the Soc.

Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999).3
If a claimant carries the burden at each of the first three
steps, the “claimant is disabled.”

Mastro, 270 F.3d at 177.

Alternatively, if a claimant clears steps one and two, but falters

2
The Act “comprises two disability benefits programs. [DIB] . . . provides
benefits to disabled persons who have contributed to the program while employed.
[SSI] . . . provides benefits to indigent disabled persons.
The statutory
definitions and the regulations . . . for determining disability governing these
two programs are, in all aspects relevant here, substantively identical.” Craig,
76 F.3d at 589 n.1 (internal citations omitted).
3

“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

7

at

step

three,

i.e.,

“[i]f

a

claimant’s

impairment

is

not

sufficiently severe to equal or exceed a listed impairment, the ALJ
must assess the claimant’s residual functional capacity (‘RFC’).”
Id. at 179.4

Step four then requires the ALJ to assess whether,

based on that RFC, the claimant can perform past relevant work; if
so, the claimant does not qualify as disabled.

Id. at 179-80.

However, if the claimant establishes an inability to do prior work,
the analysis proceeds to the fifth step, where the ALJ must decide
“whether the claimant is able to perform other work considering
both [the RFC] and [the claimant’s] vocational capabilities (age,
education, and past work experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.

If, at this step, the government cannot

carry its “evidentiary burden of proving that [the claimant]
remains able to work other jobs available in the community,” the
claimant qualifies as disabled.

Hines, 453 F.3d at 567.5

4

“RFC is a measurement of the most a claimant can do despite [the
claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative
regulations require RFC to reflect claimant’s “ability to do sustained workrelated physical and mental activities in a work setting on a regular and
continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an
equivalent work schedule” (internal emphasis and quotation marks omitted)). The
RFC includes both a “physical exertional or strength limitation” that assesses
the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy
work,” as well as “nonexertional limitations (mental, sensory, or skin
impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only
after [the ALJ] considers all relevant evidence of a claimant’s impairments and
any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.
5

A claimant thus can qualify as disabled via two paths through the fivestep sequential evaluation process. The first path requires resolution of the
questions at steps one, two, and three in the claimant’s favor, whereas, on the
second path, the claimant must prevail at steps one, two, four, and five. Some
short-hand judicial characterizations of the sequential nature of the five-step
disability evaluation appear to gloss over the fact that an adverse finding
against a claimant on step three does not terminate the analysis. See, e.g.,
(continued...)

8

Assignment of Error
Plaintiff argues that the ALJ failed to apply the appropriate
legal standards in identifying an onset date for Plaintiff’s
disability.

(Docket Entry 19 at 5.)

In doing so, Plaintiff also

implicitly challenges the ALJ’s finding that Plaintiff’s disability
did not begin before the expiration of her insured status, March
31, 2005.

(Docket Entry 24 at 2.)

The Commissioner responds that

substantial evidence supports the ALJ’s determination on this
point.

(Docket Entry 21 at 4-6; Docket Entry 25 at 2.)

“To qualify for DIB, [Plaintiff] must prove that she became
disabled prior to the expiration of her insured status.”
v. Barnhart, 434 F.3d 650, 655-56 (4th Cir. 2005).

Johnson

In other words,

Plaintiff must establish that, prior to March 31, 2005, her date
last insured, she could not perform substantial gainful activity
due to impairment(s) either which one would expect to result in
death

or

which

lasted

(or

one

would

expect

to

last)

for

a

continuous period of not less than twelve months, see 20 C.F.R.
§ 404.1505.

For an SSI claim,

[o]nset will be established as of the date of filing
provided the individual was disabled on that date.
Therefore, specific medical evidence of the exact onset
date need not generally be obtained prior to the
application date since there is no retroactivity of
payment because [SSI] payments are made beginning with
the date of application provided that all conditions of
eligibility are met.
5

(...continued)
Hunter, 993 F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any
step of the process, review does not proceed to the next step.”).

9

Titles II and XVI: Onset of Disability (“SSR 83-20”), 1983 WL
31249, at *7.
Here, as detailed above, the ALJ found that the record did not
establish disability before Plaintiff’s date last insured of March
31, 2005, in that (as of that date) Plaintiff retained an RFC for
unskilled sedentary work with a sit/stand option and a significant
number of such jobs existed.

(Tr. 17-24.)

However, the ALJ

further determined that the evidence showed Plaintiff’s back pain
and depression worsened in late 2006 to the extent that they became
disabling during the period between the date last insured and the
SSI application date in January 2007.

(Id.)

Accordingly, the ALJ

approved Plaintiff’s SSI claim as of that latter date.

(Tr. 24.)

Plaintiff has not identified any specific error by the ALJ in
finding an absence of disability prior to the expiration of insured
status. (See Docket Entries 19, 24.) That failure warrants denial
of relief.

See, e.g., Belk, Inc. v. Meyer Corp., U.S., 679 F.3d

146, 152 n.4 (4th Cir. 2012) (“This issue is waived because [the
plaintiff] fails to develop this argument to any extent in its
brief.”); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(“[A] litigant

has

an

obligation

to spell

out

its arguments

squarely and distinctly, or else forever hold its peace.” (internal
quotation marks omitted)); Nickelson v. Astrue, No. 1:07CV783, 2009
WL 2243626, at *2 n.1 (M.D.N.C. July 27, 2009) (unpublished) (“[A]s

10

[the plaintiff] failed to develop these arguments in his Brief, the
court will not address them.”).
Moreover, based on a review of the record in its entirety, the
undersigned Magistrate Judge concludes that substantial evidence
supports the ALJ’s decision that Plaintiff failed to qualify as
disabled by her date last insured.

First, as noted by the ALJ,

Plaintiff has a history of lower back pain following an on-the-job
injury in July 1998.

(Tr. 15; see also Tr. 156, 171.)

However, a

CT myelogram of her lumbar spine in July 1999 revealed normal
results and Plaintiff’s treating physician could find no anatomic
etiology for Plaintiff’s back pain.

(Tr. 159.)

Subsequent nerve

conduction studies and electromyography in April 2001 also returned
essentially normal findings with no signs of radiculopathy.

(Tr.

163.) In September 2001, a diskogram resulted in positive findings
of back pain from L4 to S1 and a post-diskogram CT scan showed
annular rents with extrusion of contrast at L4-5 and L5-S1.
245-46.)

In

nucleoplasty.
consistently

February
(Tr.

informed

2002,

Plaintiff

160-61.)6
her

surgeon

underwent

Post-operatively,
that

her

pain

an

(Tr.
L4-L5

Plaintiff
continually

improved, resulting in her release from his clinic on May 30, 2002,
with a finding of 14% impairment for purposes of her workers’

6

Nucleoplasty is “[a]n outpatient, minimally invasive procedure to treat
contained herniated disks.” Molodetskiy v. Nortel Networks Short-Term & LongTerm Disability Plan, 594 F. Supp. 2d 870, 878 n. 16 (M.D. Tenn. 2009).

11

compensation claim,7 but without any listing of any particular
work-related restrictions.

(Tr. 251-52.)

Plaintiff thereafter

complained of some back and leg pain with occasional acute flares
(see Tr. 189, 207-12), but her primary care physician continued
with conservative treatment.

(See Tr. 184-86, 223-26, 230-31.)

Plaintiff reported a significant exacerbation of her back pain
in October 2005 (six months after her date last insured) after a
chiropractic adjustment.

(Tr. 232, 259-60.)

A lumbar spine x-ray

taken in November 2005 revealed no fracture or spondylolisthesis
and reflected intact disc spaces.

(Tr. 261.)

An MRI showed only

relatively mild osteoarthritic change with disc degeneration at L4L5 and L5-S1, but without disc extrusion, stenosis, nerve root
edema, or effacement.

(Tr. 234.)

described her back as “better.”

On November 7, 2005, Plaintiff
(Tr. 235.)

In March 2006,

Plaintiff stated that her “[b]ack feels ok now” with some good and
bad days.

(Id.)

7
Notably, “[t]he terms employed in workers’ compensation disability ratings
are not equivalent to Social Security disability terminology.”
Bowser v.
Commissioner of Soc. Sec., 121 F. App’x 231, 242 (9th Cir. 2005); see also
Stephens v. Heckler, 766 F.2d 284, 285 (7th Cir. 1985) (“A person who suffers an
injury on the job usually gets compensation according to the extent of the loss.
If the injury forces the person to move to a less demanding but less remunerative
job, either the workers’ compensation system or the tort system will afford
relief. The greater the reduction in income, the greater the compensation. A
person who loses 30% of his earnings potential will be rated 30% disabled under
workers’ compensation . . . . This reflects the fact that the loss from injury
is a matter of degree. Not so with the system of disability insurance under the
Social Security Act. A person is ‘disabled’ or not; there are no degrees . . .
. A person with a partial disability for purposes of workers’ compensation is
‘not disabled’ under the Social Security Act . . . .” (internal citation
omitted)).

12

In August 2006, approximately 16 months after her date last
insured, Plaintiff visited a neurosurgeon for evaluation of lower
back, leg, and hip pain.

(See Tr. 239-40.)

An MRI showed lumbar

disc degeneration with lateral recess stenosis.

(See Tr. 239.)

A

CT scan revealed a left paracentral shallow disc protrusion at L4L5 with a posterior tear and diffuse circumferential annular
tearing

at

L5-S1.

(Tr.

241-42.)

Nerve

conduction

studies

confirmed irritation of the left L5-S1 nerve root (Tr. 243) and a
diskogram came back positive at L4-L5 and L5-S1 (Tr. 521-22).

In

October 2006, Plaintiff underwent decompression and spinal fusion
surgery. (Tr. 474-79.) According to Plaintiff, after her surgery,
the sciatica in her left leg improved, but her arthritis and back
pain worsened.

(Tr. 607-08; see also Tr. 505-09, 535, 542, 593.)

She further testified that, as of November 2007, she no longer
could live alone and moved in with her daughter.
sum,

substantial

evidence

supports

the

ALJ’s

(Tr. 608.)
finding

In
that

Plaintiff’s back condition did not become disabling under the Act
until after the expiration of her insured status.
Similarly, substantial evidence supports the ALJ’s finding
that

Plaintiff’s

depression

did

not

warrant

a

disability

determination under the Act, until her symptoms worsened following
her surgery in 2006.

In that regard, Dr. Susan Hurt performed a

consultive psychological evaluation of Plaintiff in March 2004.
(Tr. 196-99.)

At that time, Plaintiff reported that she had only

13

occasional depressed moods, that she perceived her limitations as
entirely physical, and that she did not feel cognitive or emotional
functioning issues prevented her from working.

(Tr. 196.)

Dr.

Hurt concluded that Plaintiff had “no cognitive or psychological
deficit that would prevent [her] from learning, retaining, and
following simple directions or performing simple, repetitive tasks.
.

.

.

[O]utside

of

physical

pain

and

side

effects

of

pain

medication, this evaluation revealed no specific psychological
impairment related to [the] capacity [to withstand the stress and
pressure of daily work activity].”

(Tr. 198-99.)

Consistent with Dr. Hurt’s findings, in April 2004, nonexamining psychological consultant Dr. Steve Salmony opined that
Plaintiff had no medically determinable mental impairment.
155.)

In

November

2004,

Plaintiff

complained

of

(Tr.

depression

symptoms to her primary care physician, who prescribed medication.
(See Tr. 225.)

By January 2005, Plaintiff reported that her

symptoms had improved.

(Id.)

Further, in May 2005, Plaintiff

described her “nerves” as “doing ok” and noted no problems with her
anti-depressant medication.

(Tr. 230.)

Beyond the medication

prescribed by her primary care physician, the record contains no
evidence that Plaintiff sought or received counseling or other
treatment from a mental health practitioner before the expiration
of her insured status.

In fact, Plaintiff testified in 2008 that,

only after her October 2006 back surgery (nearly a year and a half

14

after her date last insured), did her depression worsen, requiring
her to seek mental health treatment.

(See Tr. 613-14.)

The

medical records confirm that she began such treatment in December
2006, nearly two years after her date last insured. (See Tr. 548.)
Notwithstanding the foregoing record evidence substantiating
the ALJ’s determination that Plaintiff did not qualify as disabled
by the time her insured status lapsed, Plaintiff contends the ALJ
should have applied SSR 83-20 to establish a disability onset date.
(Docket Entry 19 at 5.)

In particular, Plaintiff asserts that SSR

83-20 required the ALJ to consult a medical advisor.

(Id. at 6.)

This argument lacks merit.
First, as to Plaintiff’s SSI application, the ALJ found
disability as of the earliest possible date that Plaintiff could
receive
§

benefits,

416.335.

the

Second,

SSI

application

because

date.

substantial

See

evidence

20

C.F.R.

(within

an

adequate medical record) supports the ALJ’s finding that Plaintiff
did not qualify as disabled at any time during the insured period,
no need existed for the ALJ to go further for purposes of the DIB
claim.

See Key v. Callahan, 109 F.3d 270, 274 (6th Cir. 1997)

(“The only necessary inquiry is whether the claimant was disabled
prior to the expiration of his insured status, and we agree that
the ALJ correctly determined he was not.”); McDonald v. Astrue,
Civ. Action No. 10-10896-DPW, 2011 WL 3562933, at *10 (D. Mass.
Aug.

15,

2011)

(unpublished)

(“[T]he

15

ALJ

was

not

under

any

obligation to apply SSR 83–20 in this case.

A determination

concerning the onset of disability does not need to be made unless
an individual has been determined at some point to have been
disabled during the insured period.

Thus, if, as here, the ALJ

finds that the claimant was not disabled during the relevant
period, there is no requirement that the ALJ determine the onset
date.” (internal brackets, citation, and quotation marks omitted)
(emphasis added)); see also Bird v. Commissioner of Soc. Sec.
Admin., 699 F.3d 337, 345 (4th Cir. 2012) (“[T]he ALJ’s finding
that [the plaintiff] had not established a disabling condition
before his DLI [date last insured] was a conclusion reached after
the ALJ’s commission of two errors of law in evaluating the
evidence. . . .

If the ALJ determines [on remand] that [the

plaintiff] has established a disability . . ., but the medical
evidence of the date of onset of that disability is ambiguous such
that

a

retrospective

inference

to

the

period

before

[the

plaintiff’s] DLI would be necessary, the ALJ will be required to
obtain the assistance of a medical advisor in order to render an
informed determination regarding the date of onset.” (emphasis
added)); Bailey v. Chater, 68 F.3d 75, 79 (4th Cir. 1995) (“[SSR
83-20’s] language does not expressly mandate that the ALJ consult
a medical advisor in every case where the onset of disability must
be inferred.

Nevertheless, if the evidence of onset is ambiguous,

the ALJ must procure the assistance of a medical advisor in order

16

to

render

the

informed

judgment

that

[SSR

83-20]

requires.”

(emphasis added)); Scott v. Astrue, No. 5:11CV129, 2013 WL 1197098,
at *8-9 (W.D. Va. Mar. 5, 2013) (unpublished) (“[W]hile [SSR 83-20]
recommends the use of a medical advisor ‘when onset must be
inferred,’ the context of this recommendation suggests that it is
best understood to apply to cases in which the period in dispute is
marked by a gap in the medical evidence. . . .

[I]n the case now

before the court there is no gap in treatment; there is no lack of
available

evidence;

there

is

no

ambiguity,

and

there

is

no

decisional need to infer [the plaintiff’s] onset date. As a number
of courts have concluded, SSR 83–20 simply is inapposite in cases
where the medical evidence provides a complete chronology of the
applicant’s

condition.”

(citing

cases)

(emphasis

added)),

recommendation adopted, 2013 WL 1196663 (W.D. Va. Mar. 25, 2013)
(unpublished); Cheeks v. Astrue, No. 3:09CV171, 2010 WL 2653649, at
*3 (E.D. Va. June 30, 2010) (unpublished) (“SSR 83–20 does not
expressly mandate that an ALJ is required to consult a medical
advisor

in

inferred.

every

case

where

the

onset

of

the

disability

is

In Bailey, the Fourth Circuit concluded that the record

was ambiguous because there was not evidence establishing the
progression of the plaintiff’s condition . . . .
the

ALJ

relied

on

evidence

in

the

record

In contrast, here
documenting

the

progression of [the] [p]laintiff’s condition.” (internal citation
omitted) (emphasis added)).

17

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Summary Judgment (Docket Entry 18) be denied, that Defendant’s
Motion for Judgment on the Pleadings (Docket Entry 20) be granted,
and that this action be dismissed.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 10, 2014

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