Falconi v. Social Security Administration, Commissioner

Filing 13

OPINION AND ORDER: The Court GRANTS Plaintiff's 8 MOTION to Reverse Decision of Commissioner and DENIES Defendant's 9 MOTION for Order Affirming the Decision of the Commissioner. Signed by Judge John M. Conroy on 11/1/2012. (hbc)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Greg R. Falconi,
Plaintiff,
v.

Civil Action No. 2:12-CV-37

Michael J. Astrue,
Commissioner of Social Security,
Defendant.
OPINION AND ORDER
(Docs. 8, 9)
Plaintiff Greg Falconi brings this action pursuant to 42 U.S.C. § 405(g) of the
Social Security Act, requesting review and remand of the decision of the Commissioner
of Social Security (“Commissioner”) denying his application for disability insurance
benefits for the period from July 1, 1988, his alleged disability onset date, through
December 31, 1992, his date last insured. Pending before the Court are Falconi’s motion
to reverse the Commissioner’s decision (Doc. 8), and the Commissioner’s motion to
affirm the same (Doc. 9). For the reasons stated below, the Court GRANTS Falconi’s
motion, DENIES the Commissioner’s motion, and REMANDS for further proceedings
and a new decision.
Background
Falconi was 27 years old on his alleged disability onset date of July 1, 1988. He
has a GED and experience working in the automotive industry. In 1978, Falconi joined
the United States Army, attending jungle operations school in Panama and doing

reconnaissance in Nicaragua. (AR 626.) At some point within the next two years, he
was treated at an army medical clinic in Germany. In January 1980, he was discharged
from the military; a letter from the Department of the Army advised that Falconi was
being “relieved from active duty . . . by reason of physical disability.” (AR 231.)
Falconi has had no family contact since 1992. (AR 627.) He attempted to take
college courses starting in January 1994, but withdrew five months later with an
incomplete in all classes. (AR 253.) In 1994-1995, Falconi was convicted of burglary
and attempted armed robbery. He apparently has an extensive criminal history in Ohio,
New York, and Vermont, dating back to approximately 1985. (AR 626.) In 2000,
Falconi was released from prison and gained employment in the service department of a
Saab dealership. (AR 829.) Within two years, he had lost this job and was reportedly
using heroin and exhibiting suicidal ideation. (AR 88.)
Falconi has had a longstanding problem with drugs, including heroin, cocaine, and
marijuana; and has been diagnosed with polysubstance abuse. At the administrative
hearing, he testified that he has been “drug-free” since approximately 2004 or 2005. (AR
831.) Falconi also has a history of mental health problems, and has been diagnosed with
borderline personality disorder, antisocial personality disorder, anxiety disorder, bipolar
affective disorder, depression, and suicidal ideation. (See, e.g., AR 86-87, 247, 318, 33639, 779, 797, 808.) The record reflects that, throughout the 1990s, Falconi overdosed on
multiple occasions and attempted to hang himself in jail. (AR 829.)

2

In approximately 2004,1 Falconi filed applications for Supplemental Security
Income (SSI) and Disability Insurance Benefits (DIB), alleging disability beginning on
July 1, 1988. (AR 13, 19-20.) The SSI application was adjudged “fully favorable” to
Falconi, and he was found eligible to receive SSI beginning in October 2004. (AR 13,
18, 821.) The DIB application, on the other hand, was denied initially and upon
reconsideration. In an attachment to his Request for Reconsideration, Falconi stated that
his depression and mania were major impairments, disrupting his ability to work. (AR
22.) He also stated that the Army recorded he had a personality disorder and was “unable
to maintain acceptable standards.” (Id.) On November 10, 2010, Administrative Law
Judge (“ALJ”) Edward Hoban conducted a hearing on Falconi’s disability application.2
(AR 813-39.) Falconi appeared and testified, and was represented by counsel. On
February 25, 2011, the ALJ issued a decision finding that Falconi was not disabled under
the Social Security Act through December 31, 1992, the date last insured. (AR 13-18.)
On February 4, 2012, the Appeals Council denied Falconi’s request for review of the
ALJ’s decision, rendering it the final decision of the Commissioner. (AR 4-8.) Having
exhausted his administrative remedies, Falconi filed the Complaint in this action on
February 27, 2012. (Doc. 3.)

1

The procedural history is unclear, but for purposes of the Court’s review of the instant motions,
the exact dates are irrelevant.
2

Approximately six months earlier, an initial hearing was held on Falconi’s disability
application, at which time Falconi appeared and requested additional time to secure representation. (AR
840-50.)

3

ALJ Decision
The Commissioner uses a five-step sequential process to evaluate disability
claims. See Butts v. Barnhart, 388 F.3d 377, 380-81 (2d Cir. 2004). The first step
requires the ALJ to determine whether the claimant is presently engaging in “substantial
gainful activity.” 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not so
engaged, step two requires the ALJ to determine whether the claimant has a “severe
impairment.” 20 C.F.R. §§ 404.1520(c), 416.920(c). If the ALJ finds that the claimant
has a severe impairment, the third step requires the ALJ to make a determination as to
whether the claimant’s impairment “meets or equals” an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (“the Listings”). 20 C.F.R. §§ 404.1520(d), 416.920(d).
The claimant is presumptively disabled if the impairment meets or equals a listed
impairment. Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984).
If the claimant is not presumptively disabled, the ALJ is required to determine the
claimant’s residual functional capacity (“RFC”), which means the most the claimant can
still do despite his or her mental and physical limitations based on all the relevant
medical and other evidence in the record. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1),
416.920(e), 416.945(a)(1). The fourth step requires the ALJ to consider whether the
claimant’s RFC precludes the performance of his or her past relevant work. 20 C.F.R. §§
404.1520(f), 416.920(f). Finally, at the fifth step, the ALJ determines whether the
claimant can do “any other work.” 20 C.F.R. §§ 404.1520(g), 416.920(g). The claimant
bears the burden of proving his or her case at steps one through four, Butts, 388 F.3d at
383; and at step five, there is a “limited burden shift to the Commissioner” to “show that
4

there is work in the national economy that the claimant can do,” Poupore v. Astrue, 566
F.3d 303, 306 (2d Cir. 2009) (clarifying that the burden shift to the Commissioner at step
five is limited, and the Commissioner “need not provide additional evidence of the
claimant’s [RFC]”).
Employing this sequential analysis, ALJ Hoban first determined that Falconi had
not engaged in substantial gainful activity during the period from his alleged disability
onset date of July 1, 1988 through his date last insured of December 31, 1992. (AR 15.)
At step two, the ALJ found that, “[b]ased on the complete lack of evidence pertaining to
the relevant period on record,” there was no evidence of a medically determinable
impairment during the period between Falconi’s alleged disability onset date and the date
last insured. (AR 17.) Alternatively, the ALJ noted that, even if there was evidence of a
severe impairment, a 1995 letter from Falconi’s counselor “tend[ed] to indicate that
[Falconi’s] drug and alcohol abuse would be material to any possible finding of
disability.” (Id.) The ALJ concluded that Falconi had not been under a disability from
his alleged disability onset date through his date last insured. (AR 17-18.)
Standard of Review
The Social Security Act defines the term “disability” as 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 months.” 42 U.S.C. §
423(d)(1)(A). A person will be found disabled only if it is determined that his
“impairments are of such severity that he is not only unable to do his previous work[,] but
5

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).
In reviewing a Commissioner’s disability decision, the court limits its inquiry to a
“review [of] the administrative record de novo to determine whether there is substantial
evidence supporting the . . . decision and whether the Commissioner applied the correct
legal standard.” Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000)); see 42 U.S.C. § 405(g). A court’s factual
review of the Commissioner’s decision is limited to determining whether “substantial
evidence” exists in the record to support such decision. 42 U.S.C. § 405(g); Rivera v.
Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); see Alston v. Sullivan, 904 F.2d 122, 126 (2d
Cir. 1990) (“Where there is substantial evidence to support either position, the
determination is one to be made by the fact[-]finder.”). “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);
Poupore, 566 F.3d at 305. In its deliberations, the court should consider that the Social
Security Act is “a remedial statute to be broadly construed and liberally applied.”
Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir. 1981).
Analysis
Falconi contends that the ALJ erred in failing to find that he had a medically
determinable mental health impairment during the alleged disability period. (Doc. 8 at
9.) More specifically, Falconi claims that the ALJ did not follow the evaluation process
6

outlined in Social Security Ruling (SSR) 83-20, and failed to fully develop the record,
including obtaining expert medical testimony regarding a disability onset date. (Id. at 12,
14.) The Commissioner responds by generally asserting that the ALJ’s determination
that Falconi was not disabled during the alleged disability period was legally proper and
supported by the record. (Doc. 9-1 at 4.) The Commissioner further argues that the
process set forth in SSR 83-20 does not apply where, as here, the ALJ finds at step two
that the claimant did not have a medically determinable impairment during the alleged
disability period because of a lack of objective medical evidence establishing the
existence of an impairment during that period. (Id. at 7-8).
It is true that the record contains no evidence, including objective medical
evidence, from the alleged disability period, July 1988 through December 1992.
Moreover, the Commissioner is correct that the regulations require that, “[i]n claims in
which there are no medical signs or laboratory findings to substantiate the existence of a
medically determinable physical or mental impairment, the [claimant] must be found not
disabled at step 2 of the sequential evaluation process . . . .” SSR 96-4p, 1996 WL
374187, at *2 (July 2, 1996); see also 20 C.F.R. § 404.1508. However, the
Commissioner fails to recognize the significance of the fact that, in this case, the Social
Security Administration made a determination that Falconi was disabled as of October
19, 2004, the date on which it found Falconi eligible for SSI (Title XVI) benefits. (AR
13.) The ALJ did not disturb that finding, stating in his decision that this “fully favorable
initial determination remains in effect.” (AR 18.)

7

In cases like this, where a claimant has already been found disabled under another
title of the Social Security Act, SSR 83-20 requires the ALJ to determine the onset date
of disability and provides an analytical framework for determining that date.3 See Blea v.
Barnhart, 466 F.3d 903 (10th Cir. 2006); Walton v. Halter, 243 F.3d 703 (3d Cir. 2001);
Spellman v. Shalala, 1 F.3d 357 (5th Cir. 1993); Plumley v. Astrue, No. 2:09-CV-42,
2010 WL 520271, at *5 (D. Vt. Feb. 9, 2010); Moriarty v. Astrue, No. 07-cv-342-SM,
2008 WL 4104139 (D.N.H. Aug. 28, 2008); Miller v. Astrue, No. 03 Civ. 2072 (LAP)
(FM), 2008 WL 2540750 (S.D.N.Y. June 23, 2008). The Ruling states: “In addition to
determining that an individual is disabled, the decision[-]maker must also establish the
onset date of disability.” SSR 83-20, 1983 WL 31249, at *1 (1983). In Fontaine v.
Astrue, No. 07-18-P-S, 2007 WL 3023611, at *4 (D. Me. Oct. 12, 2007), the court
specifically stated that SSR 83-20 applies where, as here, a plaintiff has been determined
to be disabled “as the result of a grant of . . . SSI . . . benefits.”4
The ALJ here failed to follow the framework set forth in SSR 83-20. Moreover,
the ALJ relied heavily on the absence of objective medical evidence from the alleged
disability period in determining that Falconi was not disabled during that period.
Specifically, the ALJ stated: “[Falconi] has not submitted any medical evidence
consisting of signs, symptoms, and laboratory findings from the period between 1988 and
3

“Social Security Rulings are agency rulings published under the authority of the Commissioner
of Social Security and are binding on all components of the Administration.” Sullivan v. Zebley, 493 U.S.
521, 531 n.9 (1990) (quotation marks omitted); see 20 C.F.R. § 402.35(b)(1).
4

Conversely, courts have held that SSR 83-20 does not apply–and thus “no inquiry into onset
date is required”–where there was no finding of disability. Key v. Callahan, 109 F.3d 270, 274 (6th
Cir.1997); see Fontaine, 2007 WL 3023611, at *4 (“Inasmuch as [claimant] has not been determined to
be disabled, the [ALJ] was not obliged to apply SSR 83-20.”).

8

1992. In fact, the record is devoid of any medical evidence dated prior to 1995, several
years after [Falconi’s] date last insured.”5 It is true that, under SSR 83-20, “medical
evidence serves as the primary element in the onset determination.” SSR 83-20, 1983
WL 31249, at *2. But courts have found that if a claimant has already been found to
suffer from a disabling impairment, objective medical evidence, while preferred, is not
essential to resolving the onset date of that disability. See, e.g., Moriarty, 2008 WL
4104139, at *6 (“Nowhere in [SSR 83-20] is there any suggestion that the absence of
medical records establishing an onset date is fatal to an individual’s disability claim. In
fact, the SSR provides just the opposite, specifically noting that in some cases it may be
necessary to infer the onset date of a claimant’s disability from non-medical evidence.”).
Although the ALJ was not required to cite SSR 83-20 by name (and he did not), and
although minor deviations from the analysis set forth in the Ruling may be tolerated, see,
e.g., Briscoe v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005); Ware v. Barnhart, No. 03170-B-W, 2004 WL 1529266, at *2-3 (D. Me. June 24, 2004), the ALJ’s singular focus
on the lack of medical evidence from the insured period does not comply with the
purpose of the Ruling, see, e.g., Parmenter v. Astrue, No. 08-CV-1132, 2010 WL
2884866, at *4 (N.D.N.Y. Apr. 23, 2010) (report adopted in relevant part by 2010 WL
2803418 (N.D.N.Y. July 15, 2010)) (finding ALJ erred in “adopt[ing] the position that
Plaintiff was required to produce documents definitively demonstrating that his mental
impairments were disabling” during the period between the alleged disability onset date
5

Noteworthy, after the ALJ issued his decision, Falconi submitted evidence to the Appeals
Council which, as discussed below, documents his treatment for substance abuse and mental health issues
prior to the alleged disability onset date. (See AR 791-808.)

9

and the date the ALJ found the claimant disabled); see also Arnone v. Bowen, 882 F.2d
34, 39 (2d Cir. 1989) (noting that dearth of contemporaneous evidence does not
necessarily preclude claimant’s entitlement to a period of disability). Thus, the Court
cannot find the ALJ’s error harmless, and finds that remand is necessary so the ALJ may
comply with the onset-date determination procedure set forth in SSR 83-20.
Furthermore, a thorough review of the record demonstrates that remand would not
be a mere formality, as the record is ambiguous as to when functional limitations
attributable to Falconi’s mental impairments first manifested. See NLRB v. WymanGordon Co., 394 U.S. 759, 766 n.6 (1969) (noting that courts are not required to “convert
judicial review of agency action into a ping-pong game” where “remand would be an idle
and useless formality”). There is ample medical evidence documenting that Falconi had
significant mental health problems beginning as early as the mid-1980s.6 A May 1984
hospital report written by Dr. N.J. D’Angelo lists as Falconi’s diagnoses “Mixed
substance abuse” and “Boarder line [sic] Personality Disorder,” and states that Falconi
“had a great deal of difficulty remaining within the policies and procedures of the
therapeutic community [and] experienced the restrictions as criticism.” (AR 797.) Other
medical reports from around the same period state that Falconi had a history of
polysubstance abuse, “[a]ntisocial behavior [for] 12 yea[r]s,” and “antisocial personality
disorder (drug dependence).” (AR 795, 808.)
6

This fact distinguishes Falconi’s claim from the claim in Vella v. Commissioner of Social
Security, 394 F. App’x 755, 757 (2d Cir. 2010), cited by the Commissioner. In Vella, there was (a) a
complete lack of medical records showing that the claimant had been hospitalized, diagnosed, or treated
for any psychiatric impairment before or during the relevant period; and (b) a medical record from just
after the relevant period which stated that the claimant had “no history of psychiatric hospitalization.” Id.

10

Correctional center medical notes from approximately ten years later (January
1995) document that, while incarcerated, Falconi attempted suicide by hanging himself in
his cell, and list antisocial personality disorder as a diagnosis. (AR 716.) An
accompanying note following a psychological interview with Falconi states that he
“made a serious suicide attempt after becoming overwhelmed with anxiety,” and that he
“[n]eeds to be evaluated for anxiety and [prescribed] . . . anti-depression medication.”
(AR 727.) Just days after being released from the correctional center in July 1995,
medical notes document that Falconi was hospitalized for depression and suicidal
ideation, and was diagnosed with “Major Depression” and “Substance Abuse.” (AR 759;
see also AR 754-55.) In August 1995, Falconi was back at the correctional center, and
again attempted suicide and was diagnosed with antisocial personality disorder, in
addition to drug addiction. (AR 719, 734.) In a Disability Report prepared by Falconi
around this period (July 1995),7 Falconi wrote that his condition first bothered him in
1989, and that he could not work because of recurrent major depression, attention deficit
disorder, and posttraumatic stress disorder. (AR 781.) He further wrote that he was too
depressed to do much of anything; he slept or isolated most of the day; and he had poor
social skills and trouble with emotional control, following orders, and trusting others.

7

This Disability Report was apparently filed as part of Falconi’s 1994 application to the Social
Security Administration. William Newhall, Director of Another Way, wrote in September 1995 that he
assisted Falconi in preparing this application, and that it would have been successful had Falconi been
available for appointments and not been incarcerated. (AR 790.) Newhall stated: “([Falconi] was too
depressed to go to one appointment with Social Security . . . and his incarceration prevents further
pursuit.).” (Id.) Newhall continued: “[Falconi’s] SSI/SSDI application reports treatment at Northampton,
Mass. VA Hospital pysch unit for depression, anxiety, and suicidal thoughts between 1990 and 1994 and
also at Cambridge City Hospital (Massachusetts) in June 1995 (depression and suicidal feelings) and at
the VA Hospital . . . [in] Boston Mass. in May 1995 (depression, drug use, manic-depression).” (Id.)

11

(Id.) In September 1995, William Newhall, Director of Another Way, a center for
chronically mentally ill individuals or homeless individuals with severe emotional
problems, wrote that Falconi was “seriously depressed,” used cocaine and heroin in the
past to avoid dealing with reality, and had “many of the feelings (and habits) typical of
teenagers who have experienced rejection and/or abandonment at an early age by parents
and others (self-isolation, fantasy, depression, anger, refusal to face facts, childlike
reaching out for help).” (AR 790.)
Correctional center notes from approximately five years later (August 2000) list
among Falconi’s problems personality disorder and anxiety disorder; and document the
prescription of Prozac, which is generally used to treat major depressive disorder and
anxiety disorder. (AR 318.) The same problems were noted in September 2004 notes
from the correctional center. (AR 333, 336.) Other notes from September 2004 indicate
that Falconi had a “long history of psychiatric treatment”; was “seen by VA psychiatry”;
and had “inpatient hospitalizations, outpatient treatment, anxiety, depression, [and]
personality issues.” (AR 335.) Falconi has treated with psychiatrist Dr. Jonathan
Schwartz from the Department of Veterans Affairs since 2004, and in April 2010, Dr.
Schwartz stated that Falconi “has a well-documented history of Bipolar Affective
Disorder” and “has been hospitalized 16 times on [the VA’s] inpatient unit since 2002 for
this condition.” (AR 86.) Dr. Schwartz also recorded that Falconi continued to have
“severe symptoms which include[d] depression, irritability, distractibility when
hypomanic, and suicidal ideation.” (Id.) He opined that Falconi’s disorder was “unlikely
to change in the next [two] years in large part based on the constancy of Mr. Falconi’s
12

symptoms despite intensive treatment.” (Id.) Around the same period, Daniel Guertin,
Falconi’s treating therapist since 2005, wrote that, based on his review of Falconi’s
“history of care, it is clear that his BiPolar [sic] condition influence[s] patterns of
addiction and an inability to work.” (AR 87.)
In sum, the record reflects an individual with consistent and long-standing mental
health impairments, who has been diagnosed by several medical providers over the
course of decades with mental disorders including antisocial personality disorder,
borderline personality disorder, bipolar disorder, anxiety disorder, and major depression.
The ALJ’s decision fails to adequately acknowledge this clear depiction in the record.
Moreover, the ALJ’s constricted focus on the lack of medical records from the insured
period is inconsistent with the requirements of SSR 83-20. Given the lack of precise
evidence as to the onset of Falconi’s disability, SSR 83-20 required the ALJ to infer the
date of disability based on “an informed judgment of the facts in th[is] particular case.”
SSR 83-20, 1983 WL 31249, at *3. A medical advisor could have assisted the ALJ in
making this inference. SSR 83-20 states that, at the administrative hearing, the ALJ
“should call on the services of a medical advisor when [the] onset [date] must be
inferred.” SSR 83-20, 1983 WL 31249, at *3; see Plumley, 2010 WL 520271, at *8
(citing Kelly v. Astrue, No. 06-168-P-S, 2007 WL 2021923, at *7 (D. Me. July 11,
2007)); Felicie v. Apfel, No. 95 Civ. 2832(LAP), 1998 WL 171460, at *3-4 (S.D.N.Y.
Apr. 13, 1998).
Although SSR 83-20 does not mandate that a medical advisor be called in every
case, courts have construed this step to be ‘essential’ when the record is ambiguous
13

regarding onset date.8 See, e.g., Katt v. Astrue, 225 F. App’x 455, 456 (9th Cir. 2007);
Briscoe v. Barnhart, 425 F.3d 345, 353 (7th Cir. 2005); Spellman v. Shalala, 1 F.3d 357,
363 (5th Cir. 1993). Here, Falconi claims disability as a result of longstanding mental
illness, and alleges an onset date far in the past. Given these facts, it is not surprising that
there is not a complete medical chronology of Falconi’s impairments in the record and
thus that there is ambiguity as to when Falconi’s disability began. See, e.g., Beasich v.
Comm’r of Soc. Sec., 66 F. App’x 419, 429 (3d Cir. 2003) (“The fact that a claimant may
be one of the millions of people who did not seek treatment for a mental disorder until
late in the day is not a substantial basis to reject that an impairment existed.”) (internal
quotation and citation omitted). Even had the ALJ attempted to decipher the disability
onset date (which he did not), he could not have done so without the aid of a medical
advisor, who could have made medical inferences based on the medical and other
evidence. See 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.”); Bailey v. Chater, 68 F.3d 75, 79 (4th Cir. 1995) (“the date on which the
synergy [of the claimant’s numerous ailments] reached disabling severity remains an
8

The Commissioner argues that “[o]ther courts, including this court [in Gray v. Barnhart, No.
2:00-CV-333, slip op. at 27-28 (D. Vt. Apr. 30, 2002)], have found that the absence of objective medical
evidence during the relevant period negates any ambiguity in the record requiring the ALJ, pursuant to
SSR 83-20, to call on a medical expert.” (Doc. 9-1 at 7 (citing Tyler v. Astrue, 334 F. App’x 79, 80-81
(9th Cir. 2009); Fontaine v. Astrue, No. 07-18-P-S, 2007 WL 3023611, at *4 (D. Me. Oct. 12, 2007)).
But Gray and the other cases cited by the Commissioner are distinguishable not only on their specific
facts, but also because, in those cases, there was no prior determination of disability, and thus the
procedures set forth in SSR 83-20 did not apply. See, e.g., Nix v. Barnhart, 160 F. App’x 393, 396-97
(5th Cir. 2005) (holding that absent an ALJ’s finding of disability, there is no need to infer an onset date,
and thus SSR 83-20’s medical advisor requirement does not apply).

14

enigma. In the absence of clear evidence documenting the progression of [claimant’s]
condition, the ALJ did not have the discretion to forgo consultation with a medical
advisor.”).
A medical advisor is particularly useful in cases like this which involve slowly
progressing mental impairments. See, e.g., Spellman v. Shalala, 1 F.3d 357, 363 (5th Cir.
1993) (“Because [claimant’s] mental impairment was of a slowly progressive nature, and
the medical evidence was ambiguous with regard to the disability onset date, the Appeals
Council could not have inferred an onset date based on an informed judgment of the facts
without consulting a medical advisor.”); Walton v. Halter, 243 F.3d 703, 709-10 (3d Cir.
2001) (where previously-hospitalized claimant alleged disability based on slowly
progressive bipolar disorder which arose more than 30 years in the past, ALJ was
required to call on services of medical advisor rather than rely on his own lay analysis of
evidence in inferring onset date, even though there was a lack of contemporaneous
records).9 According to the Diagnostic and Statistical Manual of Mental Disorders
(DSM-IV), an “essential feature” of antisocial personality disorder, which Falconi was
diagnosed with as early as 1984 (see AR 808), is “a pervasive pattern of disregard for,
and violation of, the rights of others that begins in childhood or early adolescence and

9

SSR 83-20 also recommends particular prudence in cases like this where the claimant suffers
from a mental illness, explaining: “Because mentally ill persons may not be capable of protecting
themselves from possible loss of benefits by furnishing necessary evidence concerning onset,
development should be undertaken in such cases to ascertain the onset date of the incapacitating
impairment. Contact with the individual’s family, former employers, and other associates may lead to
information about previous hospitalizations, medical treatment, or manifestations of symptoms prior to
the current hospitalization.” SSR 83-20, 1983 WL 31249, at *5. The ALJ in this case does not appear to
have undertaken any attempt at supplementary development of the record, other than holding the record
open for particular documentation discussed at the administrative hearing. (See AR 838.)

15

continues into adulthood.” Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of
Mental Disorders (“DSM-IV”), at 645 (4th ed. 2000) (emphasis added). The DSM-IV
further provides that people with antisocial personality disorder “fail to conform to social
norms with respect to lawful behavior”; “may repeatedly perform acts that are grounds
for arrest”; “tend to be irritable and aggressive”; and “tend to be consistently and
extremely irresponsible,” going long periods without working. Id. at 646. Similarly, the
DSM-IV states that an “essential feature” of borderline personality disorder, which
Falconi was also diagnosed with in 1984 (see AR 797), is “a pervasive pattern of
instability of interpersonal relationships, self-image, and affects, and marked impulsivity
that begins by early adulthood and is present in a variety of contexts.” DSM-IV, at 650
(emphasis added). These descriptions accurately describe Falconi as reflected in the
record before and after the insured period. Similarly, the DSM-IV includes as an
“essential feature” of bipolar disorder, which Falconi appears to have first been
diagnosed with in approximately 2004 (see AR 86-87, 252), “a clinical course that is
characterized by the occurrence of one or more Manic Episodes or Mixed Episodes[, and]
one or more Major Depressive Episodes.” DSM-IV, at 350-51. Associated features
include suicide and substance-related disorders. Id. at 352. Again, this description
accurately describes Falconi as reflected in the record before and after the insured period.
The Court is hard-pressed to suppose that Falconi’s mental impairments, including
in particular his antisocial personality disorder and borderline personality disorder,
appeared in the early 1980s, as the record reflects; then went away for a period including
the insured period; and again reappeared in the early 1990s and beyond, as the record
16

reflects. More plausibly, Falconi’s mental impairments existed throughout his life, in
varying levels of severity. A medical advisor with experience in the particular mental
impairments documented in the record could assist the ALJ in inferring when Falconi’s
impairments first became disabling.
Finally, although neither party addresses the issue in any detail, the Court would
be remiss to ignore that Falconi’s mental health problems appear to have been
intertwined with his substance abuse problems during the insured period. The Court
therefore recognizes the possibility that, even if a medical advisor opines Falconi had a
medically determinable mental impairment during the alleged disability period, and even
if the ALJ determines Falconi was disabled during that period, the ALJ may find that
Falconi’s substance abuse was a contributing factor material to that determination of
disability. See 20 C.F.R. § 404.1535(a) (requiring that, if the ALJ finds the claimant is
disabled, and there is medical evidence of the claimant’s drug addiction or alcoholism,
the ALJ “must determine whether [that] drug addiction or alcoholism is a contributing
factor material to the determination of disability”). On remand, if the ALJ determines
that the onset date of Falconi’s disability was before or during the insured period, the ALJ
must then grapple with and resolve the issue of whether Falconi would still have been
disabled had he stopped using drugs or alcohol during the insured period. Id.; see also 20
C.F.R. § 404.1535(b)(1); Frankhauser v. Barnhart, 403 F. Supp. 2d 261, 272 (W.D.N.Y.
2005).

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Conclusion
For these reasons, the Court finds in favor of Falconi. The Commissioner’s
argument fails to recognize the significance of the Social Security Administration’s
decision to grant Falconi SSI benefits beginning in October 2004. In view of this
decision, the principal task of the ALJ was to determine the onset date of Falconi’s
disability, i.e., when Falconi’s impairments first became disabling. SSR 83-20 mandates
that this analysis be undertaken even though there is a lack of contemporaneous medical
evidence documenting Falconi’s mental condition as of his alleged July 1, 1988 disability
onset date. As acknowledged by the Commissioner, the facts of this case are much like
those in Plumley and Larkin. The Commissioner offers no persuasive reason for the
Court to stray from the reasoning applied in those cases. There, as here, although there
was no objective medical evidence from the alleged disability period, there was ample
evidence from before and after that period which demonstrated that the respective
claimants had long-term mental health problems. More importantly, in Plumley and
Larkin, as in this case, there was an underlying finding of disability by the Social
Security Administration and the primary issue for the ALJ was the date of onset of that
disability.
The ALJ here did not follow the analysis set forth in SSR 83-20, and did not even
attempt to determine or infer an onset date of Falconi’s disability. Nor did the ALJ
attempt to obtain the assistance of a medical advisor to resolve the record’s ambiguity
regarding Falconi’s disability onset date, as required by SSR 83-20. Finally, the ALJ
failed to properly analyze the impact of Falconi’s substance abuse on his mental
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impairments during the insured period. Therefore, the Court GRANTS Falconi’s motion
(Doc. 8), DENIES the Commissioner’s motion (Doc. 9), and REMANDS for further
proceedings and a new decision in accordance with this ruling.
Dated at Burlington, in the District of Vermont, this 1st day of November, 2012.

/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge

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