Walchli v. Berryhill
MEMORANDUM OPINION AND ORDER: The Court ORDERS that Defendant's 15 Objections to the Proposed Findings and Recommendation of the United States Magistrate Judge be OVERRULED and that the 14 Proposed Findings and Recommendation be ADOPTED; t hat Plaintiff's 12 Brief in Support of Complaint and Motion for Remand be GRANTED and that the Commissioner's 13 Brief in Support of Defendant's Decision be DENIED. Finally, the Court ORDERS that the final decision of the Admin istrative Law Judge be REVERSED as to the denial of DIB, that this matter be REMANDED for further proceedings pursuant to sentence four of 42 U.S.C. Section 405(g), including the appointment of a medical advisor pursuant to SSR 83-20, and that this matter be DISMISSED from the Court' docket. Signed by Judge Irene C. Berger on 3/7/2018. (cc: USMJ; attys; any unrepresented party) (msa)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
ROBERT GEORGE WALCHI,
CIVIL ACTION NO. 5:17-cv-01165
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
This is an action seeking review of the final decision of the Commissioner of Social
Security (“Commissioner” or “Defendant”) denying the Plaintiff’s application for disability
insurance benefits (DIB) under Title II and supplemental security income (SSI) under Title XVI
of the Social Security Act. By Standing Order (Document 4) entered on February 6, 2016, this
matter was referred to the Honorable Dwane L. Tinsley, United States Magistrate Judge, for
findings of fact and recommendations for disposition. On February 2, 2018, Judge Tinsley
submitted his Proposed Findings and Recommendations (PF&R) (Document 14), recommending
that the Court grant the Plaintiff’s brief in support of complaint and motion for remand, reverse
the final decision of the Administrative Law Judge (ALJ) and remand this case for further
proceedings pursuant to sentence four of 42 U.S.C. § 405(g), order the ALJ to use a medical
advisor pursuant to SSR 83-20 and dismiss this matter from the Court’s docket.
The Court has reviewed the Defendant’s Objections to the Proposed Findings and
Recommendation of the United States Magistrate Judge (Document 15) and the Plaintiff’s
Response to the Defendant’s Objections to the Proposed Findings and Recommendations of the
United States Magistrate Judge (Document 16).
The Court has also reviewed the original
briefing, the administrative record (Document 11 and attachments), and the PF&R. For the
reasons stated herein, the Court finds that the objections should be overruled.
The Claimant, Robert George Walchi, filed an application for DIB on May 10, 2013, and
for SSI on June 18, 2013, asserting that his disability began on January 1, 2008. His claims were
denied initially and upon reconsideration.
An Administrative Law Judge (ALJ), Jeffrey J.
Schueler, held a hearing on January 27, 2015, and a supplemental hearing on July 27, 2015. The
ALJ issued a decision on August 4, 2015, finding that Mr. Walchi was disabled beginning May
31, 2013. Mr. Walchi requested review as to the finding that he was not disabled prior to May
31, 2013, and the Appeals Council denied review. Mr. Walchi filed this suit to seek review of the
finding regarding the onset date of his disability and the resulting denial of DIB.
Mr. Walchi was born on October 3, 1957. He has a high school diploma. He worked as
a farm hand in the past, but has not worked since 2008. He reported that he stopped working due
to his back pain. Mr. Walchi reported that he had suffered back problems for ten or fifteen years,
and reinjured his back when he slipped on ice in February, 2013. Mr. Walchi lacked health
insurance and did not seek medical treatment until May 31, 2013. Based on medical records
beginning in May 2013, the ALJ concluded that Mr. Walchi suffered from osteoarthritis and
degenerative disc disease of the lumbar, thoracic, and cervical spine.
The record includes
evidence from medical providers stating that Mr. Walchi’s back problems substantially pre-date
the beginning of his treatment. However, the ALJ concluded that there was not sufficient medical
evidence to substantiate an earlier onset date. Because Mr. Walchi’s disability insurance ended
on December 31, 2012 (his date last insured, or DLI), the ALJ denied his application for DIB.
Disability under the SSA is defined 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). The Social Security Administration
utilizes a five-step sequential inquiry to determine eligibility for social security disability benefits.
If a claimant is determined not to be disabled at one step, the evaluation does not proceed to the
next step. See Johnson v. Barnhart, 434 F.3d 650, 653-54 (4th Cir. 2005)). The Fourth Circuit
has summarized the five-step process as follows:
the ALJ asks at step one whether the claimant has been working; at
step two, whether the claimant's medical impairments meet the
regulations' severity and duration requirements; at step three,
whether the medical impairments meet or equal an impairment listed
in the regulations; at step four, whether the claimant can perform her
past work given the limitations caused by her medical impairments;
and at step five, whether the claimant can perform other work.
Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015). “If the first three steps do not lead to a
conclusive determination, the ALJ then assesses the claimant's residual functional capacity, which
is “the most” the claimant “can still do despite” physical and mental limitations that affect her
ability to work.” Id. at 635(citing 20 C.F.R. § 416.945(a)(1)). If the claimant is able to perform
his or her past work, the ALJ can find the claimant not to be disabled. Id. If the claimant is not
able to perform his or her past work, the ALJ proceeds to step five, where “the burden shifts to the
Commissioner to prove, by a preponderance of the evidence, that the claimant can perform other
work that ‘exists in significant numbers in the national economy,’ considering the claimant's
residual functional capacity, age, education, and work experience.” Id. (citing 20 C.F.R. §§
416.920(a)(4)(v); 416.960(c)(2); 416.1429).
STANDARD OF REVIEW
The Federal Magistrates Act requires a district court to conduct a de novo review upon the
record of any portion of the proposed findings and recommendations to which written objections
have been made. 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Conversely, a district
court is not required to review, under a de novo or any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of the findings or recommendation to
which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985); see also
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983) (holding that districts courts may adopt
proposed findings and recommendations without explanation in the absence of objections). A
district court judge may “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1) (2006). A district court's
authority to choose among these options is independent of the statutory duty to afford review to
those portions to which objections are addressed. See Camby, 718 F.2d at 199-200 (“If no
objections were made, for example, it could hardly be argued that the judge must accept the
[magistrate judge's] report if it contained an error of law apparent on its face.”). As such, it is
wholly within the district court's discretion to accept, reject, or modify a magistrate judge's
proposal irrespective of any objections by the parties. See United States v. Raddatz, 447 U.S. 667,
676 (1980). Running parallel with district courts' discretion under the Federal Magistrates Act is
the responsibility to ensure the just disposition of matters referred to magistrate judges. See
Mathews v. Weber, 423 U.S. 261, 271 (1976); see also Raddatz, 447 U.S. at 683.
Section 405(g) of the SSA provides, “the findings of the Commissioner of Social Security
as to any fact, if supported by substantial evidence, shall be conclusive. . . .” 42 U.S.C. § 405(g).
“When examining an SSA disability determination, a reviewing court is required to uphold the
determination when an ALJ has applied correct legal standards and the ALJ's factual findings are
supported by substantial evidence.” Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th
Cir. 2012). “Substantial evidence has been defined innumerable times as more than a scintilla,
but less than a preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964) (citing
Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197 (1938)). In making its determination, the
Court must look to “the whole record to assure that there is a sound foundation for the Secretary's
findings, and that his conclusion is rational.” Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir.
1971). When the Commissioner’s decision clearly disregards the overwhelming weight of the
evidence, the Court may modify or reverse the decision. Id.
The Magistrate Judge set forth the Plaintiff’s background and medical conditions, and the
Court incorporates those findings by reference herein. The issue in this matter involves whether
the ALJ improperly disregarded evidence suggesting that Mr. Walchi’s disability began before his
DLI. The Magistrate Judge found that the ALJ should have appointed a medical adviser to
determine the date of onset. His conclusion was based on Mr. Walchi’s testimony, a letter from
a physician’s assistant stating that the degeneration of Mr. Walchi’s spine was consistent with a
back injury dating back ten to fifteen years, and a letter from a doctor stating that an MRI taken on
June 12, 2013, supported a finding that Mr. Walchi’s back problems were present prior to
December 31, 2012.
The Commissioner argues that “[b]ecause the record is devoid of any medical evidence
prior to May 31, 2013…the ALJ was not required to call a medical advisor to determine an earlier
onset date of disability.” (Obj. at 4.) The Commissioner asserts that Social Security regulations
regarding inferred onset dates only relate to slowly progressive impairments. The Commissioner
argues that the letters from medical providers do not contain sufficient support or specificity to
justify an earlier onset date, and cites Mr. Walchi’s testimony that his pain worsened in early 2013.
The Plaintiff argues that the Magistrate Judge correctly found that the ALJ was required to use a
medical advisor to determine the onset of his disability because his back problems are chronic and
progressive in nature.
Social Security Ruling 83-20 provides guidance for determining the onset date in
disabilities of non-traumatic origin. Ruling 83-20 states that “[t]he starting point in determining
the date of onset of disability is the individual’s statement as to when disability began.” Soc. Sec.
Ruling 83-20. Other information to be considered includes the claimant’s work history and
medical or other evidence. When adequate medical records are not available, the date of onset
should be inferred “from the medical and other evidence that describe the history and
symptomatology of the disease process.” Id. “[T]he administrative law judge (ALJ) should call
on the services of a medical advisor when onset must be inferred,” as when onset may have
occurred “prior to the date of the first recorded medical examination.” Id. With the consent of
the claimant, the ALJ may also collect information from family, friends, and former employers
regarding the claimant’s condition and any explanation for the lack of medical treatment, with
such lay evidence to be considered to the extent it does not conflict with available medical
In a case involving Ruling 83-20 and the date of onset of disability, the Fourth Circuit held
that “if the evidence of onset is ambiguous, the ALJ must procure the assistance of a medical
advisor in order to render the informed judgment that the Ruling requires.” Bailey v. Chater, 68
F.3d 75, 79 (4th Cir. 1995) (further explaining that, absent “clear evidence documenting the
progression of [the Claimant’s] condition, the ALJ did not have the discretion to forgo consultation
with a medical advisor”).
“Medical evaluations made after a claimant’s insured status has
expired…may be relevant to prove a disability arising before the claimant’s DLI.” Bird v.
Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012). In particular, when post-DLI
medical evidence “permits an inference of linkage with the claimant’s pre-DLI condition,” such
evidence should be considered. Id. at 341. “[R]etrospective consideration of medical evidence
is especially appropriate when corroborated by lay evidence.” Id. at 342. The Fourth Circuit
also approvingly cited a Tenth Circuit case holding that “an ALJ may not make negative inferences
concerning the date of onset from an ambiguous record; rather the ALJ must call a medical
advisor.” Id. at 345 (quoting Blea v. Barnhart, 466 F.3d 903, 913 (10th Cir. 2006)).
The ALJ in the instant case concluded “that the claimant was not disabled prior to May 31,
2013, but became disabled on that date.” (Tr. at 14.) He emphasized that “[p]rior to May 31,
2013, the date the claimant became disabled, there were no medical signs or laboratory findings to
substantiate the existence of a medically determinable impairment,” and so “the claimant’s
applications must be denied at step 2 prior to May 31, 2013. (Id. at 16.) The ALJ noted that Mr.
Walchi argued that his treating physician submitted a letter stating that the MRI showed that back
problems were present prior to his DLI of December 31, 2012, but gave that evidence little weight
because of the lack of specificity regarding the degree of severity or the date on which Mr. Walchi
ceased to be able to work. The ALJ recounts Mr. Walchi’s doctor visits and diagnoses, including
diagnoses of chronic and degenerative conditions.
Those medical records include various
statements from Mr. Walchi describing long-term problems with his back. The ALJ found Mr.
Walchi’s allegations “generally credible as of May 31, 2013,” but did not expressly find or explain
any finding of a lack of credibility in his allegations regarding his condition prior to that date. (Tr.
at 21.) The ALJ further considered a letter from Mr. Walchi’s treating physician’s assistant, but
gave little weight to her statement that his condition predated his first presentation to her office,
due to the lack of explanation or support.
The Court finds that the ALJ’s conclusion regarding the Claimant’s onset date is not
supported by substantial evidence. The Magistrate Judge’s PF&R contains a thorough and well
reasoned analysis and review of the record, which the Court adopts in full herein. The ALJ’s
conclusion rests primarily on the lack of medical evidence prior to May 31, 2013. However, the
Ruling 83-20 requires retrospective consideration of medical evidence where the earlier records
are unavailable. The ALJ disregarded the opinions of two treating providers that Mr. Walchi’s
condition began prior to his DLI, although those opinions were consistent with Mr. Walchi’s
testimony, his statements made to medical providers, and his work history.1 Further, there is
simply no support in the record for the supposition that Mr. Walchi’s chronic and degenerative
conditions became disabling on the exact date he sought treatment. In short, the record is
1 It is somewhat troubling that the ALJ specified that Mr. Walchi’s testimony and allegations were credible as of May
31, 2013, essentially stating that he was accepting only evidence that supported his conclusion, rather than fairly
weighing all of the evidence and information available. The ALJ did not make specific findings that any of Mr.
Walchi’s testimony was not credible or explain any such findings.
ambiguous as to the date of onset, and there is reason to infer a linkage between Mr. Walchi’s
current condition and his pre-DLI condition. Therefore, the ALJ was required to seek input from
a medical advisor to determine the date of onset.2 Accordingly, the Court finds that this matter
must be remanded to the Commissioner for further proceedings.
Wherefore, after thorough review and careful consideration, the Court ORDERS that the
Defendant’s Objections to the Proposed Findings and Recommendation of the United States
Magistrate Judge (Document 15) be OVERRULED and that the Proposed Findings and
Recommendations (Document 14) be ADOPTED.
The Court further ORDERS that the Plaintiff’s Brief in Support of Complaint and Motion
for Remand (Document 12) be GRANTED and that the Commissioner’s Brief in Support of
Defendant’s Decision (Document 13) be DENIED. Finally, the Court ORDERS that the final
decision of the Administrative Law Judge be REVERSED as to the denial of DIB, that this matter
be REMANDED for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g),
including the appointment of a medical advisor pursuant to SSR 83-20, and that this matter be
DISMISSED from the Court’s docket.
2 The Court notes that the ALJ did not reference the possibility of appointing a medical advisor. He gave little weight
to the opinions of Mr. Walchi’s treating providers in large part because they did not offer a specific date that Mr.
Walchi’s condition became disabling, but Ruling 83-20 directs that such evidence should be provided by a medical
The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge
Dwane L. Tinsley, to counsel of record and to any unrepresented party.
March 7, 2018
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