Bay v. Social Security Administration
REPORT AND RECOMMENDATION: The undersigned Magistrate Judge respectfully recommends that Plaintiff's motion for judgment on the administrative record (DE 15) be GRANTED, and that the Commissioner's decision be REVERSED and REMANDED for further proceedings consistent with this Report and Recommendation. Signed by Magistrate Judge Barbara D. Holmes on 1/31/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
PHILLIP WILLIAM BAY
CAROLYN W. COLVIN,
Acting Commissioner of
The Honorable Aleta A. Trauger, District Judge
REPORT AND RECOMMENDATION
Plaintiff filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain
judicial review of the final decision of the Social Security Administration (“Commissioner”)
denying Plaintiff’s claim for a period of disability, Disability Insurance Benefits (“DIB”), and
Supplemental Security Income (“SSI”) as provided under Title II and XVI of the Social Security
Act (“the Act”). The case is currently pending on Plaintiff’s motion for judgment on the
administrative record (Docket Entry No. 15), to which Defendant has filed a response (Docket
Entry No. 17). Plaintiff has also filed a subsequent reply to Defendant’s response (Docket Entry
Upon review of the administrative record as a whole and consideration of the parties’
filings, and for the reasons stated below, the undersigned Magistrate Judge respectfully
recommends that Plaintiff’s motion for judgment on the administrative record (Docket Entry
No. 15) be GRANTED, the decision of the Commissioner be REVERSED, and this matter be
REMANDED for further administrative proceedings consistent with this Report.
Plaintiff filed an application for a period of disability, DIB, and SSI on May 25, 2012.
See Transcript of the Administrative Record (Docket Entry No. 13) at 76-77. 1 He alleged a
disability onset date of July 15, 2008, which was later amended to January 1, 2011. AR 17, 7677. Plaintiff asserted that he was unable to work due to back problems, neck problems, arthritis,
ruptured discs, lung problems, collar bone pain, coughing up blood, passing blood in stool,
hearing problems, vision problems, leg pain, weight loss, and memory problems. AR 108, 110.
Plaintiff’s applications were denied initially and upon reconsideration. AR 76-77, 102-03.
Pursuant to his request for a hearing before an administrative law judge (“ALJ”), Plaintiff
appeared with counsel and testified at a hearing before ALJ David A. Ettinger on June 18, 2014.
AR 27. On September 19, 2014, the ALJ rendered a partially favorable decision. AR 11-13.
Specifically, the ALJ determined that Plaintiff was not disabled prior to May 25, 2012, but
became disabled on May 25, 2012 and continued to be disabled through the date of his decision.
AR 18. The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision on
December 22, 2015 (AR 1-3), thereby making the ALJ’s decision the final decision of the
Commissioner. This civil action was thereafter timely filed, and the Court has jurisdiction.
42 U.S.C. § 405(g).
The Transcript of the Administrative Record is hereinafter referenced by the abbreviation “AR”
followed by the corresponding page number(s) as numbered in large black print on the bottom right
corner of each page. All other filings are hereinafter referenced by the abbreviation “DE” followed by the
corresponding docket entry number and page number(s) where appropriate.
II. THE ALJ FINDINGS
The ALJ issued a partially favorable decision on September 19, 2014. AR 11-13. Based
upon the record, the ALJ made the following enumerated findings:
1. The claimant meets the insured status requirements of the Social Security Act
through December 31, 2011.
2. The claimant has not engaged in substantial gainful activity since the alleged
onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. Prior to May 25, 2012, the date the claimant became disabled, the claimant
had the following medically determinable impairments: lumbar degenerative
disc disease (20 CFR 404.1521 et seq. and 416.921 et seq.). However, the
claimant did not have an impairment or combination of impairments that
significantly limited (or was expected to significantly limit) the ability to
perform basic work-related activities for 12 consecutive months; therefore, the
claimant did not have a severe impairment or combination of impairments
(20 CFR 404.1521 et seq. and 416.921 et seq.).
4. Beginning on May 25, 2012, the claimant has had the following severe
impairment: chronic obstructive pulmonary disease (20 CFR 404.1520(c) and
5. Since May 25, 2012, the severity of the claimant’s impairment has met the
criteria of section 3.02 of 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 416.920(d), and 416.925).
6. The claimant was not disabled prior to May 25, 2012 (20 CFR 404.1520(c)
and 416.920(c)) but became disabled on that date and has continued to be
disabled through the date of this decision (20 CFR 404.1520(d) and
7. The claimant was not under a disability within the meaning of the Social
Security Act at any time through December 31, 2011, the date last insured
(20 CFR 404.315(a) and 404.320(b)).
III. REVIEW OF THE RECORD
The parties and the ALJ have thoroughly summarized and discussed the medical and
testimonial evidence of the administrative record. Accordingly, the Court will discuss those
matters only to the extent necessary to analyze the parties’ arguments.
IV. DISCUSSION AND CONCLUSIONS OF LAW
A. Standard of Review
The determination of disability under the Act is an administrative decision. The only
questions before this Court upon judicial review are: (i) whether the decision of the
Commissioner is supported by substantial evidence, and (ii) whether the Commissioner made
legal errors in the process of reaching the decision. 42 U.S.C. § 405(g). See Richardson v.
Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971) (adopting and defining
substantial evidence standard in context of Social Security cases); Kyle v. Comm’r of Soc. Sec.,
609 F.3d 847, 854 (6th Cir. 2010). The Commissioner’s decision must be affirmed if it is
supported by substantial evidence, “even if there is substantial evidence in the record that would
have supported an opposite conclusion.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th
Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)); Jones v. Comm’r of
Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003); Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90
(6th Cir. 1999).
Substantial evidence is defined as “more than a mere scintilla” and “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson,
402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L.
Ed. 126 (1938)); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007); LeMaster v.
Weinberger, 533 F.2d 337, 339 (6th Cir. 1976) (quoting Sixth Circuit opinions adopting
language substantially similar to that in Richardson).
The Court’s review of the Commissioner’s decision is limited to the record made in the
administrative hearing process. Jones v. Secretary, 945 F.2d 1365, 1369 (6th Cir. 1991). A
reviewing court may not try the case de novo, resolve conflicts in evidence, or decide questions
of credibility. See, e.g., Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citing Myers v.
Richardson, 471 F.2d 1265, 1268 (6th Cir. 1972)). The Court must accept the ALJ’s explicit
findings and determination unless the record as a whole is without substantial evidence to
support the ALJ’s determination. 42 U.S.C. § 405(g). See, e.g., Houston v. Sec’y of Health &
Human Servs., 736 F.2d 365, 366 (6th Cir. 1984).
B. Determining Disability at the Administrative Level
The claimant has the ultimate burden of establishing an entitlement to benefits by proving
his “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 months.” 42
U.S.C. § 432(d)(1)(A). The asserted impairment(s) must be demonstrated by medically
acceptable clinical and laboratory diagnostic techniques. See 42 U.S.C. §§ 432(d)(3) and
1382c(a)(3)(D); 20 C.F.R. §§ 404.1512(a), (c), and 404.1513(d). “Substantial gainful activity”
not only includes previous work performed by the claimant, but also, considering the claimant’s
age, education, and work experience, any other relevant work that exists in the national economy
in significant numbers regardless of whether such work exists in the immediate area in which the
claimant lives, or whether a specific job vacancy exists, or whether the claimant would be hired
if he applied. 42 U.S.C. § 423(d)(2)(A).
In the proceedings before the Social Security Administration, the Commissioner must
employ a five-step, sequential evaluation process in considering the issue of the claimant’s
alleged disability. See Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001); Abbot
v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must show that he is not
engaged in “substantial gainful activity” at the time disability benefits are sought. Cruse v.
Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007); 20 C.F.R. §§ 404.1520(b), 416.920(b).
Second, the claimant must show that he suffers from a severe impairment that meets the twelve
month durational requirement. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). See also
Edwards v. Comm’r of Soc. Sec., 113 F. App’x 83, 85 (6th Cir. 2004). Third, if the claimant has
satisfied the first two steps, the claimant is presumed disabled without further inquiry, regardless
of age, education or work experience, if the impairment at issue either appears on the regulatory
list of impairments that are sufficiently severe as to prevent any gainful employment or equals a
listed impairment. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006); 20 C.F.R.
§§ 404.1520(d), 416.920(d). A claimant is not required to show the existence of a listed
impairment in order to be found disabled, but such showing results in an automatic finding of
disability that ends the inquiry. See Combs, supra; Blankenship v. Bowen, 874 F.2d 1116, 1122
(6th Cir. 1989).
If the claimant’s impairment does not render him presumptively disabled, the fourth step
evaluates the claimant’s residual functional capacity in relationship to his past relevant work.
Combs, supra. “Residual functional capacity” (“RFC”) is defined as “the most [the claimant] can
still do despite [his] limitations.” 20 C.F.R. §§ 404.1545(a)(1). In determining a claimant’s RFC,
for purposes of the analysis required at steps four and five, the ALJ is required to consider the
combined effect of all the claimant’s impairments, mental and physical, exertional and
nonexertional, severe and nonsevere. See 42 U.S.C. §§ 423(d)(2)(B), (5)(B); Foster v. Bowen,
853 F.2d 483, 490 (6th Cir. 1988). At the fourth step, the claimant has the burden of proving an
inability to perform past relevant work or proving that a particular past job should not be
considered relevant. Cruse, 502 F.3d at 539; Jones, 336 F.3d at 474. If the claimant cannot
satisfy the burden at the fourth step, disability benefits must be denied because the claimant is
not disabled. Combs, supra.
If the claimant is not presumed disabled but shows that past relevant work cannot be
performed, the burden of production shifts at step five to the Commissioner to show that the
claimant, in light of the claimant’s RFC, age, education, and work experience, can perform other
substantial gainful employment and that such employment exists in significant numbers in the
national economy. Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005)
(quoting Walters v. Comm’r of Soc. Sec., 402 F.3d 525, 529 (6th Cir. 1997)). See also Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). To rebut a prima facie case, the Commissioner must
come forward with proof of the existence of other jobs a claimant can perform. Longworth, 402
F.3d at 595. See also Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 528 (6th Cir. 1981),
cert. denied, 461 U.S. 957, 103 S. Ct. 2428. 77 L. Ed. 2d 1315 (1983) (upholding the validity of
the medical-vocational guidelines grid as a means for the Commissioner of carrying his burden
under appropriate circumstances). Even if the claimant’s impairments prevent the claimant from
doing past relevant work, if other work exists in significant numbers in the national economy that
the claimant can perform, the claimant is not disabled. Rabbers v. Comm’r of Soc. Sec., 582 F.3d
647, 652 (6th Cir. 2009). See also Tyra v. Sec’y of Health & Human Servs., 896 F.2d 1024,
1028-29 (6th Cir. 1990); Farris v. Sec’y of Health & Human Servs., 773 F.2d 85, 88-89 (6th Cir.
1985); Mowery v. Heckler, 771 F.2d 966, 969-70 (6th Cir. 1985).
If the question of disability can be resolved at any point in the sequential evaluation
process, the claim is not reviewed further. 20 C.F.R. § 404.1520(a)(4). See also Higgs v. Bowen,
880 F.2d 860, 863 (6th Cir. 1988) (holding that resolution of a claim at step two of the evaluative
process is appropriate in some circumstances).
C. The ALJ’s Evaluation of Plaintiff’s Claim
In the instant case, the ALJ determined that Plaintiff failed to demonstrate that he was
disabled prior to his date last insured, December 31, 2011. However, the ALJ additionally found
that, beginning May 25, 2012, Plaintiff was presumptively disabled because he had an
impairment that met or medically equaled the severity of one of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ thus found that Plaintiff was not eligible for
a period of disability benefits or DIB under Title II of the Social Security Act (“SSA”), but found
that Plaintiff was disabled for purposes of SSI under Title XVI of the SSA, beginning on
May 25, 2012. AR 19-23.
D. Plaintiff’s Assertions of Error
Plaintiff argues that this case must be remanded for further development of the record due
to the ALJ’s failure to establish a “legitimate medical basis” for his finding regarding Plaintiff’s
alleged onset date of disability. DE 16 at 4.
Sentence four of 42 U.S.C. § 405(g) states the following:
The court shall have power to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a
42 U.S.C. §§ 405(g), 1383(c)(3). “In cases where there is an adequate record, the
[Commissioner’s] decision denying benefits can be reversed and benefits awarded if the decision
is clearly erroneous, proof of disability is overwhelming, or proof of disability is strong and
evidence to the contrary is lacking.” Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985).
Furthermore, a court can reverse the decision and immediately award benefits if all essential
factual issues have been resolved and the record adequately establishes a claimant’s entitlement
to benefits. Faucher v. Secretary, 17 F.3d 171, 176 (6th Cir. 1994). See also Newkirk v. Shalala,
25 F.3d 316, 318 (1994). The Court addresses Plaintiff’s assertion of error below.
1. Whether the ALJ failed to establish a “legitimate medical basis” for the determination
regarding the onset date of Plaintiff’s condition.
Plaintiff’s sole argument is that the ALJ violated Social Security Ruling (“SSR”) 83-20 2
by failing to utilize a medical expert in determining the date on which Plaintiff’s disabling
condition began. DE 16 at 5-6. Plaintiff claims that the ALJ’s decision to use May 25, 2012, the
date on which Plaintiff applied for disability benefits, without consulting a medical professional
Social Security Rulings do not have the force and effect of law, but are “binding on all
components of the Social Security Administration” and represent “precedent final opinions and orders
and statements of policy and interpretations” adopted by the Commissioner. Ferguson v. Comm’r of Soc.
Sec., 628 F.3d 269, 272, n.1 (6th Cir. 2010) (citing 20 C.F.R. § 402.35(b)(1)).
constitutes reversible error. Id. at 7-8. The decision to use this date prevented Plaintiff from
being awarded a period of disability and DIB in light of the expiration of his insured status on
December 31, 2011. AR 20. 3 Plaintiff thus requests that the Court reverse the ALJ’s decision and
remand this case for “further development.” DE 16 at 4.
In response, Defendant correctly notes that there is no evidence in the record that Plaintiff
received any medical treatment between October of 2007 and June of 2012 for chronic
obstructive pulmonary disorder (“COPD”), the condition for which he was ultimately awarded
SSI. DE 17 at 5. Defendant claims that the ALJ properly relied on Plaintiff’s testimony and
corresponding treatment notes, which confirm that Plaintiff’s symptoms were not present
between the amended alleged onset date, January 1, 2011, and the date last insured,
December 31, 2011. Id. at 7-8. Therefore, Defendant argues, “the record already contains the
evidence Plaintiff seeks,” thereby obviating SSR 83-20’s requirement that a medical advisor be
retained to determine the onset of the disabling condition. DE 17 at 5, 7.
Plaintiff does not dispute the ALJ’s determination that his lumbar degenerative disc
disease did not represent a severe impairment. Plaintiff’s argument with respect to the onset date
under SSR 83-20 instead focuses solely on the ALJ’s finding regarding COPD: “Having
determined that Plaintiff was, indeed, disabled because his COPD meets the requirements of
Listing 3.02 … the ALJ was thus required to call on a medical advisor if the onset date for
Plaintiff’s disability could not be inferred from the record.” DE 16 at 6-7. Therefore, the only
issue before the Court is whether there is substantial evidence to support the ALJ’s determination
that the onset of Plaintiff’s COPD was May 25, 2012, less than five months after his date last
A claimant must demonstrate that he or she became “disabled” prior to the date last insured in
order to establish entitlement to DIB. Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir. 1990).
SSR 83-20 delineates the guidelines by which an ALJ determines the onset of a disabling
condition, including three factors:
Factors relevant to the determination of disability onset include the individual’s
allegation, the work history, and the medical evidence. These factors are often
evaluated together to arrive at the onset date. However, the individual’s allegation
or the date of work stoppage is significant in determining onset only if it is
consistent with the severity of the condition(s) shown by the medical evidence ... .
Particularly in the case of slowly progressive impairments, it is not necessary for
an impairment to have reached listing severity (i.e. be decided on medical grounds
alone) before onset can be established ... . In some cases, it may be possible,
based on the medical evidence, to reasonably infer that the onset of a disabling
impairment occurred sometime prior to the date of the first recorded medical
examination, e.g. the date the claimant stopped working. How long the disease
may be determined to have existed at a disabling level of severity depends on an
informed judgment of the facts in the particular case. This judgment, however,
must have a legitimate medical basis. At the hearing, the administrative law judge
(ALJ) should call on the services of a medical advisor when onset must be
1983 WL 31249, at *1-3. Plaintiff initially alleged that his disabling condition began on July 15,
2008, though he later amended this date to January 1, 2011. AR 17. As noted by the Sixth
Circuit, SSR 83-20 “emphasizes that the claimant’s alleged onset date should be adopted only if
it is consistent with all the evidence available.” Carmichael v. Bowen, 914 F.2d 255 (table) (6th
Cir. 1990), 1990 WL 136120, at *2 (quoting Willbanks v. Secretary of Health & Human Servs.,
847 F.2d 301, 304 (6th Cir. 1988)). In the instant case, it cannot reasonably be disputed that
Plaintiff’s alleged onset date of January 1, 2011 is not consistent with the evidence contained in
the record, as there is no evidence of any treatment between October of 2007 and June of 2012.
Plaintiff’s representative explicitly stated during the hearing that the amended onset date of
January 1, 2011 was “strictly a technical date” intended to preserve Plaintiff’s claim for a period
of disability and DIB. AR 31. Plaintiff’s allegation regarding the onset of his disability thus
holds little sway.
Plaintiff’s work history is similarly unhelpful to the Court’s analysis, as he claims that he
has been unable to work since July 14, 2008. AR 30. However, as previously discussed, there is
no medical evidence of any kind suggesting that Plaintiff’s COPD developed at that time.
Indeed, the first mention of COPD in any medical record is found in the report documenting
Dr. Roy Johnson’s consultative examination of Plaintiff on July 10, 2012. AR 256-58. This is
significant because medical evidence, the third factor to be addressed under SSR 83-20, “serves
as the primary element in the onset determination.” 1983 WL 31249, at *2. Plaintiff testified that
he “had trouble breathing in 2011” (AR 36), although there is nothing in the record to support
this assertion. The Court notes that a record from June of 2012 suggests that Plaintiff was not
experiencing shortness of breath, chest pain, coughing, or wheezing. AR 229-30.
It is Plaintiff’s burden to prove that he became disabled prior to the date selected by the
Commissioner, and not the Commissioner’s burden to disprove any earlier onset date, as long the
Commissioner’s decision is supported by substantial evidence. Cadwallader v. Comm’r of Soc.
Sec., No. 09-cv-10935, 2010 WL 465844, at *5 (E.D. Mich. Feb. 4, 2010) (citing Besaw v. Sec’y
of Health and Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992)); Blankenship, 874 F.2d at
1121. Here, Plaintiff presents an argument for remand based solely on a technicality, namely,
that the ALJ violated SSR 83-20 by failing to utilize the services of a medical advisor in
selecting an onset date, and cites no evidence suggesting that an onset date earlier than May 25,
2012 is appropriate.
Nevertheless, the Court finds that this case should be remanded for additional
consideration to include consultation with a medical expert regarding the onset of Plaintiff’s
condition. Despite the dearth of medical evidence pertaining to COPD, the Court notes that the
onset date selected by the ALJ and the date last insured are less than five months apart. The
determination of the onset date is crucial to Plaintiff’s claim, as he would be entitled to Title II
benefits if his onset date were found to precede the date last insured. See SSR 83-20, 1983 WL
31249, at *1 (“In many claims, the onset date is critical; it may affect the period for which the
individual can be paid and may even be determinative of whether the individual is entitled to or
eligible for any benefits.”).
The ALJ in this case appears to have selected May 25, 2012 as the onset date merely
because it was the day on which Plaintiff’s application was filed. While there is no evidence
suggesting an earlier onset date, there is similarly no substantial evidence to support the selection
of May 25, 2012. See Blankenship, 874 F.2d at 1124 (the Commissioner must support any
determination of a disability onset date with substantial evidence) (citing Willbanks v. Sec’y of
Health & Human Servs., 847 F.2d 301, 303 (6th Cir. 1988)). SSR 83-20 also specifically states
that “[c]onvincing rationale must be given for the date selected.” 1983 WL 31249, at *3. No such
convincing rationale was provided in the ALJ’s opinion. The ALJ’s selection of May 25, 2012
instead “gives the appearance that the  date was solely chosen because it fell outside the insured
status time period.” Blankenship, 874 F.2d at 1122. The Court thus finds that by refusing to
employ the services of a medical expert, and instead utilizing Plaintiff’s filing date to establish
an onset date for COPD, an impairment that is not traumatic in nature, the ALJ failed to adhere
to the requirements of SSR 83-20.
This finding is consistent with the Sixth Circuit’s holding in Blankenship v. Bowen. The
Court emphasizes the reasoning set forth in Justice Nelson’s concurring opinion regarding the
ALJ’s decision to select an onset date based solely on the day the subject claimant underwent an
independent examination by a consulting psychiatrist, which the undersigned believes is
analogous to the instant case:
Social Security Rule 83-20 declares it “essential” that the onset date of disability
“be correctly established and supported by the evidence ....” Where, as would
seem to be the case here, it is possible to infer that the onset of the disability
occurred at some point prior to the date of the first recorded medical examination
establishing disability, SSR 83-20 says that the onset date “must be fixed based on
the facts ....” A finding that the claimant’s progressive mental disorder became
disabling on November 13, 1985, cannot rationally be based on the fact that
Dr. Lurie happened to conduct his examination on that date … SSR 83-20, as I
read it, makes it clear that in a case such as this the ALJ is not to determine the
onset date without having called on the services of a medical advisor: “At the
hearing, the administrative law judge ... should call on the services of a medical
advisor when onset must be inferred.” That was not done here, and I fully agree
with the conclusion that this case must be sent back so that the informed judgment
of a medical advisor can be obtained.
Id. at 1124 (Nelson, J., concurring). Similarly, it is highly likely that the onset of Plaintiff’s
COPD, a non-traumatic impairment that was determined by the ALJ to meet the criteria of
Listing 3.02 (AR 22), occurred at some point prior to the date he filed his application. Indeed,
Plaintiff alleged that he had “[severe] difficulty breathing” as part of a function report completed
on January 1, 2012, just one day after his date last insured. AR 183. His subsequent diagnosis of
COPD confirms the veracity of this claim. Bearing in mind that “in the case of slowly
progressive impairments, it is not necessary for an impairment to have reached listing severity …
before onset can be established,” 1983 WL 31249, at *2, it seems improbable that the onset of
COPD occurred nearly five months later when he filed his application. A medical expert is better
suited to make a judgment as to the onset of this impairment, which is precisely the purpose of
the requirements contained in SSR 83-20.
Defendant’s argument that the opinion of Dr. Thomas Thrush, a physician who reviewed
Plaintiff’s medical record, obviates the applicability of SSR 83-20 in this matter is unavailing.
DE 17 at 8-9. Notably, Dr. Thrush made no attempt to infer an onset date because he opined that
Plaintiff’s allegations regarding his breathing problems were “less than credible,” and ultimately
determined that Plaintiff did not meet listing 3.02, an opinion that was rejected by the ALJ.
AR 23. Defendant’s claim that the “record already contains the evidence Plaintiff seeks,” (DE 17
at 5) is therefore unfounded. Moreover, as noted by Plaintiff, SSR 83-20 specifically requires
that the ALJ utilize a medical advisor “[a]t the hearing,” which, in this case, took place
approximately 17 months after Dr. Thrush issued his opinion. AR 27, 97. As such, Dr. Thrush’s
report does not comport with SSR 83-20’s mandate.
The Court notes that its conclusion finds support in other circuits. The Ninth Circuit has
held that SSR 83-20’s statement that a medical expert “should” be obtained actually means that
such action must take place. See Armstrong v. Comm’r of Soc. Sec. Admin., 160 F.3d 587, 590
(9th Cir. 1998) (“If the medical evidence is not definite concerning the onset date and medical
inferences need to be made, SSR 83-20 requires the [ALJ] to call upon the services of a medical
advisor and to obtain all evidence which is available to make the determination.”) (emphasis
added) (internal citation and quotations omitted); see also DeLorme v. 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 [ALJ] to call upon the
services of a medical advisor and to obtain all evidence which is available to make the
determination.”). The Eighth Circuit has similarly held that if the medical evidence of record is
ambiguous and it is necessary for the ALJ to make an inference regarding onset, SSR 83-20
“requires the ALJ to call upon the services of a medical advisor to insure that the determination
of onset is based upon a ‘legitimate medical basis.’” Grebenick v. Chater, 121 F.3d 1193, 1201
(8th Cir. 1997) (citing SSR 83-20). The Fifth Circuit has opined that in cases involving slowly
progressive impairments, such as COPD, and ambiguity as to the onset date requiring an
inference by the ALJ, SSR 83-20 “requires that that inference be based on an informed
judgment. The [ALJ] cannot make such an inference without the assistance of a medical
advisor.” Spellman v. Shalala, 1 F.3d 357, 362 (5th Cir.) (1993). In light of this weight of
authority, and based on the foregoing analysis, the Court finds that this matter should be
remanded for an additional hearing to include the opinion of a medical expert regarding the onset
of Plaintiff’s COPD.
For the above stated reasons, the undersigned Magistrate Judge respectfully recommends
that Plaintiff’s motion for judgment on the administrative record (DE 15) be GRANTED, and
that the Commissioner’s decision be REVERSED and REMANDED for further proceedings
consistent with this Report and Recommendation.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of this Report and Recommendation and must state
with particularity the specific portions of this Report and Recommendation to which objection is
made. Failure to file written objections within the specified time can be deemed a waiver of the
right to appeal the District Court’s Order regarding the Report and Recommendation. See
Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); United States v. Walters,
638 F.2d 947 (6th Cir. 1981).
BARBARA D. HOLMES
United States Magistrate Judge
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