Ferland v. SSA CV-97-456-M 07/24/98 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Diane J. Ferland, Plaintiff,

v. Civil No. 97-456-M

Kenneth S. Apfel, Commissioner Social Security Administration, Defendant.

O R D E R

Pursuant to

(g), plaintiff, Diane Ferland,

moves to reverse the Commissioner's decision denying her

application for Social Security Disability Insurance Benefits

under Title II of the Social Security Act,

(the

"Act"). Defendant objects and moves for an order affirming the

decision of the Commissioner.

Factual Background

I. Procedural History

On November 17, 1994, plaintiff filed an application for

disability insurance benefits under Title II of the Act, alleging

that she had been unable to work since June 2, 1983 (plaintiff

last met the disability status reguirements on June 30, 1989 --

her "date last insured"). The Social Security Administration

denied her application initially and on reconsideration. On May

9, 1995, plaintiff, her attorney, and a lay witness (plaintiff's

husband) appeared before an Administrative Law Judge, who

considered plaintiff's application de novo. On October 19, 1995, the ALJ issued his order, concluding that plaintiff was not

disabled prior to her date last insured and, therefore, not

entitled to benefits under the Act.

Plaintiff then sought review of the ALJ's decision by the

Appeals Council. On August 15, 1997, however, the Appeals

Council denied her reguest, thereby rendering the ALJ's decision

a final decision of the Commissioner, subject to judicial review.

On September 12, 1997, plaintiff filed a timely action in this

court, asserting that the ALJ's decision was not supported by

substantial evidence and seeking a judicial determination that

she is disabled within the meaning of the Act.

After reviewing the administrative record and the memoranda

submitted by the parties, the court concluded that plaintiff's

three page memorandum failed to properly identify (and develop)

the precise nature of her claims. Rather than construe

plaintiff's submissions as a waiver of her legal and factual

arguments, the court afforded her additional time within which to

"specifically identify the legal bases for her challenge to the

ALJ's determination and to develop those arguments in sufficient

detail (including citations to appropriate authority) so that the

court may understand the precise nature of her legal and factual

claims." Ferland v. Commissioner, No. 97-456-M, slip op. at 2

(D.N.H. May 29, 1998). Among other things, the court suggested

that plaintiff address three specific issues which, at least in

2 the court's view, might arguably form the basis of a legitimate

challenge to the ALJ's decision.

The parties have submitted

additional memoranda and the matter is now ripe for review.

II. Stipulated Facts

Pursuant to this court's local rule 9.1(d), the parties have

submitted the following statement of stipulated facts which, with

minor exceptions, the court guotes verbatim.

A. The Medical Record.

The medical evidence included records from plaintiff's

childhood until 1995. In summary, the evidence showed the

plaintiff has a long history of difficult movement of her

extremities due to a condition diagnosed as dystonia.1 Prior to

her alleged date of disability onset in June of 1983, the

plaintiff underwent two surgeries in 1966 and 1967 which greatly

improved her condition but resulted in a speech problem (Tr. 242-

49) .

1 Dystonia, musculorum deformans, a genetic, environmental or idiopathic disorder, usually beginning in childhood or adolescence, marked by muscular contractions that distort the spine, limbs, hips, and sometimes the cranial-innervated muscles. The abnormal movements are increased by excitement and, at least initially, abolished by sleep. The musculature is hypertonic when in action, hypotonic when at rest. Hereditary forms usually begin with involuntary posturing of the foot or hand (autosomal recessive form), both forms may progress to produce contortions of the entire body. Steadman Medical Dictionary, 26th Ed., p. 536 (1995) .

3 Plaintiff graduated high school and earned a Bachelor's

degree in Biology. She has past relevant work experience ("PRW")

from 1978 to 1983 as a guality control worker. Based upon the

plaintiff's disability application and the hearing testimony, the

ALJ found her PRW had entailed a light or greater level of

exertion (Tr. 92, 213-214).2

The plaintiff has presented no objective medical evidence of

medical treatment for the dystonia symptoms from June 1983 to

June 1989. Recent medical reports show that plaintiff's symptoms

became more apparent in 1990 and have reguired more freguent

treatment after 1992.3 The plaintiff received medical care from

family physician Jonathan Jaffe, M.D. since 1979. Initially, Dr.

Jaffe conducted a prenuptial examination and found that

plaintiff's speech varied from normal to poor and guestioned

whether it might be related to anxiety (Tr. 257). In 1981,

plaintiff reported an ache in the left knee for a month and she

2 Plaintiff testified she had a speech problem since 1988 or 1989 when she worked part time in her husband's business; her duties included bookkeeping, making bank deposits, preparing and issuing checks to pay expenses, and opening the mail (Tr. 166-67, 173). The ALJ did not consider this substantial gainful activity, but observed that it suggested a level of functioning that was inconsistent with total disability (Tr. 136-37).

3 In a letter dated January 24, 1996, Sergio Arambulo, M.D. opined "She was a patient of mine from 1986 when she was pregnant for her first baby until her check-up in April 1990 . . . She had difficulty walking and my nurse had to help her during my examinations. Her legs had to be held in position by my nurse. Mrs. Ferland also had difficulty talking but she tried her best to communicate with me. I believe that it is extremely difficult for her to perform any kind of work. She probably would be more of a liability in a place of work." (Tr. 84).

4 took no medication. The doctor noted it was non-tender and

minimal edema at the kneecap and advised no particular treatment

(Tr. 269-70). In December 1981, Dr. Jaffe reported he had

treated plaintiff since 1979 and her dystonia condition was

stable, and added,

I see no reason why she would not be employed by the phone company. Diane's medical condition does not affect her ability to perform many sorts of tasks effectively.

(Tr. 282).

Dr. Jaffe's office notes between 1979 to April 1983

concerned gynecological exams and birth control advice; there was

no evidence of treatment for dystonia symptoms (Tr. 258-64).4 In

May 1982, Dr. Jaffe referred the plaintiff to Dr. James

Dalyrymple for a neurological examination.

Dr. Dalyrymple noted that after her childhood surgeries, the

plaintiff's condition had been stable and her past medical

history was benign. Dr. Dalyrymple found that when the plaintiff

was relaxed, her speech was guite normal, and her mood was

excellent, as was her attention span and sense of humor. Cranial

nerves V through XII were normal except for mild difficulty with

rapid tongue movements. On motor examination, her tone was

4 In January 1982, Dr. Jaffe reported that plaintiff took no medication, although it had been advised, and her speech and movement were impaired, especially when anxious (Tr. 283). Dr. Jaffe was willing to support plaintiff in an attempt at work which ultimately failed (Tr. 282) .

5 normal, she had no resting spontaneous movements and strength

testing revealed no evidence of weakness in all four extremities

(Tr. 291) . Dr. Dalyrymple opined that plaintiff had an

"excellent prognosis" to remain at this good functional level

with normal intelligence and apparently excellent social

adjustment (Tr. 292).

There was no medical evidence of trauma or any medical

treatment at the time plaintiff alleged an onset of disability

(Tr. 265). In April 1983, Dr. Jaffe re-checked her IUD device

and reported the "patient has no complaint." In her disability

report, plaintiff stated she left her job in June 1983 due to

transportation problems (Tr. 209). The record was silent until

September 1994 when her treating physician performed a

gynecological exam and he reported no other abnormality (Tr.

265) .

In February 1985, plaintiff returned to Dr. Jaffe after she

reported a rash over the neck and trunk. Plaintiff told Dr.

Jaffe that she had taken no prescribed medication, but noted she

had a strawberry daiguiri. Soon after taking Benadryl, the

symptoms dissipated (Tr. 266-67).

The plaintiff presented no evidence of medical care for any

condition for nearly five years from July 1985 to April 1990. By

then, plaintiff had been married and delivered a child. The

6 plaintiff took no medication and her right leg had spasms. Her

treating physician's neurological exam was negative except for

dystonia, and speech was affected "intermittently" (Tr. 269-70).

In April 1990, plaintiff underwent a Holter test and

echocardiagram at her reguest because she reported an irregular

heart beat; the results showed normal sinus rhythm, non specific

ST, T wave changes and a normal echocardiagram (Tr. 294-96) .

In September 1992, neurologist Robert Thies, M.D., evaluated

the plaintiff at the reguest of her treating physician. Dr.

Jaffe. Dr. Thies noted her condition was stable for several

years, and recently, she noticed more symptoms in her right arm

and right leg. Otherwise, her medical history had been

unremarkable. In examination. Dr. Thies found she was alert and

pleasant, her speech was strained and dysarthric;5 her language

and understanding appeared excellent. There was twisting

dystonic movement in her extremities, especially on the right

side. Her gait was mildly staggering but she moved without any

assistance (Tr. 298-99). A CT scan of the brain showed the

results of previous surgery, but otherwise it was unremarkable

(Tr. 297). In October 1992, plaintiff noted her symptoms

improved with Artane medication6 and the tightness in the left

5 Disarthric - characterized or pertaining to disarthria, which is an imperfect articulation of speech due to disturbances of muscular control. Dorland's Illustrated Medical Dictionary, 26th Edition (1996), p. 514.

6 Artane is indicated as an adjunct in treatment of Parkinsonism. Physician's Desk Reference, 49th Ed., p. 1251

7 leg and her speech improved (Tr. 300). Plaintiff kept follow-up

appointments with Dr. Thies in November 1992 and January and May

1993. Dr. Thies noted that she felt less dystonic and, while her

voice was strained, she conversed more easily with medication.

The plaintiff said she had a "fair" amount of difficulty in the

late evening (Tr. 301-03).

In October 1993, plaintiff saw Dr. Jaffe for a swollen great

left toe. She was given medication and told to elevate her foot

for ten days (Tr. 270-71). Laboratory tests and an EKG were

essentially normal (Tr. 277-79). In November 1993, Dr. Thies

noted that medication continued to help plaintiff's gait and

lower extremity spasticity to some degree (Tr. 304). Dr. Thies'

next report in January 1994 indicated that a small change in her

medication was guite effective in treating her symptoms and

offered some control over symptoms; reflexes were brisk and

dystonic posturing was more pronounced on the right side (Tr.

305) .

In late 1994, after review of the records. Dr. Thies opined

that plaintiff was totally disabled since 1982, a period of ten

years before he began seeing her (Tr. 309). In early 1995, he

repeated his opinion regarding disability and commented, if

anyone deserved consideration and assistance, it was the

plaintiff (Tr. 310) .

(1995) .

8 A consulting evaluation was conducted by a state Disability

Determination Service physician in December 1994, Burton A.

Nault, M.D. (Tr. 190-98). After his review of all the medical

evidence. Dr. Nault opined the plaintiff could occasionally lift

up to 20 pounds, frequently lift and carry up to 10 pounds, stand

about 6 hours in an 8 hour day, sit up to 6 hours in an 8 hour

day, and she retained an unlimited ability to push/pull (Tr.

191). Dr. Nault assessed her postural limitations for the

performance of work, indicating she would occasionally be limited

in balancing, climbing, stooping, kneeling, crouching and

crawling, but there were no other limitations (Tr. 192-95) . Dr.

Nault commented that no significant reductions in plaintiff's

capacity were identified until well after her date last insured

("DLI")(June 30, 1989). Dr. Nault noted that plaintiff had a

significant impairment due to dystonia, but a Listing-Level

impairment was not identified from the alleged onset date, June

1983 through her date of last insured status, during which period

she realized a capacity to perform light work (Tr. 196) .

In March 1995, in a summary letter to the agency. Dr. Jaffe

recounted his treatment of the plaintiff from 1979. In his

opinion, the plaintiff suffered from her condition since

approximately 1985. Dr. Jaffe stated in his opinion, she was

unable to do any job prior to 1989, and he considered her

disabled since June 1989 (Tr. 286-87, 311-12). Standard of Review

Pursuant to

(g), the court is empowered "to

enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

Secretary [now, the "Commissioner"], with or without remanding

the cause for a rehearing." Factual findings of the Commissioner

are conclusive if supported by substantial evidence.

(g), 1383(c)(3); Irlanda Ortiz v. Secretary of Health and

Human Services,

(1st Cir. 1991).7

In making factual findings, the Commissioner must weigh and

resolve conflicts in the evidence. Burgos Lopez v. Secretary of

Health & Human Services,

(1st Cir. 1984) (citing

Sitar v. Schweiker,

(1st Cir. 1982)). It is "the

responsibility of the [Commissioner] to determine issues of

credibility and to draw inferences from the record evidence.

Indeed, the resolution of conflicts in the evidence is for the

[Commissioner] not the courts." Ortiz,

.

Accordingly, the court will give deference to the ALU's

credibility determinations, particularly where those

determinations are supported by specific findings. Frustaqlia v.

7 Substantial evidence is "such relevant evidence as a reasonable mind might accept as adeguate to support a conclusion." Consolidated Edison Co. v. NLRB,

(1938). It is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Consolo v. Federal Maritime Comm'n.,

(1966).

10 Secretary of Health & Human Services,

(1st Cir.

1987) (citing Da Rosa v. Secretary of Health and Human Services,

803 F .2d 24, 26 (1st Cir. 1986)).

An individual seeking Social Security disability benefits is

disabled under the Act if he or she is unable "to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

to result in death or has lasted or can be expected to last for a

continuous period of not less than 12 months."

(1)(1)(A). The Act places a heavy initial burden on the

plaintiff to establish the existence of a disabling impairment.

Bowen v. Yuckert,

(1987); Santiago v.

Secretary of Health and Human Services,

(1st Cir.

1991) . To satisfy that burden, the plaintiff must prove that her

impairment prevents her from performing her former type of work.

Gray v. Heckler,

(1st Cir. 1985) (citing

Goodermote v. Secretary of Health and Human Services,

(1st Cir. 1982)). Nevertheless, the plaintiff is not reguired

to establish a doubt-free claim. The initial burden is satisfied

by the usual civil standard: a "preponderance of the evidence."

See Paone v. Schweiker,

(D. Mass. 1982).

In assessing a disability claim, the Commissioner considers

objective and subjective factors, including: (1) objective

medical facts; (2) the plaintiff's subjective claims of pain and

disability as supported by the testimony of the plaintiff or

11 other witnesses; and (3) the plaintiff's educational background,

age, and work experience. See, e.g., Avery v. Secretary of

Health and Human Services,

(1st Cir. 1986);

Goodermote,

.

Once the plaintiff has shown an inability to perform her

previous work, the burden shifts to the Commissioner to show that

there are other jobs in the national economy that she can

perform. Vazquez v. Secretary of Health and Human Services,

(1st Cir. 1982). If the Commissioner shows the

existence of other jobs which the plaintiff can perform, then the

overall burden remains with the plaintiff. Hernandez v.

Weinberger,

(1st Cir. 1974); Benko v.

Schweiker,

(D.N.H. 1982).

When determining whether a plaintiff is disabled, the ALJ is

reguired to make the following five inguiries:

(1) whether the plaintiff is engaged in substantial gainful activity;

(2) whether the plaintiff has a severe impairment;

(3) whether the impairment meets or eguals a listed impairment;

(4) whether the impairment prevents the plaintiff from performing past relevant work; and

(5) whether the impairment prevents the plaintiff from doing any other work.

12

. Ultimately, a plaintiff is disabled only

if her:

physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . .

(d) (2) (A) .

With those principles in mind, the court reviews plaintiff's

motion to reverse the decision of the Commissioner.

Discussion

A. Background.

In concluding that Mrs. Ferland was not disabled within the

meaning of the Act, the ALJ employed the mandatory five-step

seguential evaluation process set forth in

.

At step 3 of the analysis, the ALJ concluded that plaintiff "has

severe dystonia musculorum deformans, but that she does not have

an impairment or combination of impairments listed in, or

medically egual to one listed in Appendix 1, Subpart P

Regulations no. 4." (Tr. 137). The ALJ then concluded that

plaintiff had the residual functional capacity ("RFC") to perform

the physical exertion reguirements of sedentary work (Tr. 138).

He also concluded that plaintiff did not suffer from any

nonexertional (e.g., speech, cognitive, etc.) limitations (Tr.

138) .

13 At step 4 of the analysis, the ALJ concluded that plaintiff

was unable to return to her past relevant work as a quality

control worker, a position requiring work at a light (or greater)

level of exertion. Accordingly, the burden then shifted to the

Commissioner to demonstrate that there were other jobs in the

national economy which, in light of her age, educational

training, relevant work experience, and RFC, plaintiff could

perform. Applying those principles, the ALJ concluded that

"[plaintiff's] vocational factors coincide with the Medical-

Vocational Guidelines at Rules 201.25 and 201.26, Appendix 2, to

Subpart P, which regardless of transferability of skills, both

dictate a finding that [the plaintiff] is not disabled." (Tr.

137) .

B. Social Security Ruling 83-20 and Use of a Medical Advisor.

Plaintiff asserts that the ALJ's ultimate conclusion that

she was not disabled prior to her date last insured is flawed for

several reasons. Most of her arguments remain undeveloped

(despite having been afforded the opportunity to file a

supplemental memorandum for that very purpose) so are not

amenable to serious review and appear to lack merit. One

argument, however, does warrant discussion. Because plaintiff

has at least quoted the provisions of Social Security Ruling 83-

20 (unfortunately, without discussing how those provisions might

apply to this case), one might reasonably infer that plaintiff

has implicitly asserted that the ALJ erred when he determined,

14 without the benefit of a medical advisor, that the onset of her

conceded disability did not occur prior to her date last insured.

The Commissioner has assumed as much, and asserts that the

services of a medical advisor were not necessary.

The relevant portion of Social Security Ruling 83-20

provides:

With slowly progressive impairments, it is sometimes impossible to obtain medical evidence establishing the precise date an impairment became disabling. Determining the proper onset date is particularly difficult, when, for example, the alleged onset and the date last worked are far in the past and adeguate medical records are not available. In such cases, it will be necessary to infer the onset date from the medical and other evidence that describe the history and symptomology of the disease process. •k -k -k

In some cases, it may be possible, based on the medical evidence to reasonably infer that the onset of a disabling impairment(s) occurred some time 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 inferred.

Social Security Ruling 83-20 (1983).

Here, the ALJ recognized that while there is a dearth of

medical evidence to support the conclusion that plaintiff was

disabled prior to her date last insured, plaintiff does suffer

15 from a progressive disease, and more recent medical records

certainly suggest that she is now totally disabled.

In summary, the evidence of record shows a history of difficulties with arm and leg movement attributable to the claimant's diagnosis of dystonia. Prior to her alleged onset of disability, the claimant underwent two surgeries with resulting long term stability in her condition, but with residual speech problems caused by the operation. While there is no documentation in the record of objective medical evidence [supporting a conclusion of disability] for the period, June 3, 1983 through June 30, 1989, more recent medical records have recorded increasing symptoms beginning as early as 1990, necessitating initiation of regular treatment by April 1992. The claimant's condition is presently controlled to some degree with prescription medication and regular monitoring. Despite such efforts, the claimant's condition continues to decrease. Although progressive, the claimant's treating physicians have suggested that the claimant's dystonia had been disabling years prior to June 1989.

(Tr. 134). However, the ALJ found that plaintiff's treating

physicians' retrospective diagnoses of disability were not

adeguately supported by objective medical records and, therefore,

he discounted them. He did not, however, enlist the services of

a medical advisor to assist him in inferring the onset date of

plaintiff's disability.

The Commissioner asserts that the ALJ was not reguired to

call on the services of a medical advisor. Specifically, the

Commissioner claims that, "The ALJ carefully reviewed the

evidence and testimony and determined that no legitimate medical

basis supported an inference of disability prior to the

expiration of [plaintiff's] insured status; therefore, no medical

16 advisor was required." Commissioner's supplemental memorandum

(document no. 10) at 6. The Commissioner seems to suggest that

because plaintiff failed to demonstrate that she was disabled

within the meaning of the Act prior to her date last insured, the

provisions of SSR 83-20 do not apply.

at 6-7 n.2. At least

one court of appeals has, however, rejected that argument. See

Grebenick v. Chater,

(8th Cir. 1997) ("The

Commissioner argues that SSR 83-20 applies only for the limited

purpose of determining the precise date of onset when the ALJ has

already found that a claimant had established her disability and

her entitlement to benefits. According to the Commissioner, the

ALJ did not need a medical advisor to determine the onset of that

disability in this case, because the ALJ determined that

[plaintiff] wasn't disabled [prior to her date last insured]. We

cannot agree with the Commissioner's construction of SSR 83-20.")

(emphasis supplied).

Notwithstanding the Commissioner's assertions to the

contrary, the particular facts in this case suggest that the ALJ

should have employed the services of a medical advisor to assist

in determining whether plaintiff was disabled prior to her date

last insured. First, the medical evidence of record is sparse

and arguably ambiguous with regard to the severity of plaintiff's

disability in the years and months immediately prior to her date

last insured. Of course, the dearth of medical records could

reflect the fact that plaintiff's condition was not sufficiently

17 serious or disabling to warrant any medical attention. But, in

general, it is illogical to presume that the absence of evidence

is itself evidence of absence (of the disability). Here, there

is evidence to suggest that the sparse medical record trail is

the product of plaintiff's acute understanding that she suffers

from a debilitating and degenerative disease (for which there is

little, if any, truly effective treatment) and her overwhelming

desire to accept the discomfort associated with her condition

without complaining and while trying to maintain as normal a life

as possible. At a minimum, that is certainly the view of her

husband and her treating physicians. See, e.g.. Opinion letter

of Dr. Thies (Tr. 310) ("It was through sheer force of will that

she has attempted to normalize her life and that of her family.

I have many patients in my own practice who have half the

neurologic difficulty that she has, and whom I would nevertheless

consider permanently disabled. While my first contact with Diane

was in 1992, that contact and all available historical

information suggests that she was already totally disabled by her

illness more than 10 years before."); Opinion letter of Dr. Jaffe

(Tr. 311-12) ("Mrs. Ferland has suffered since I first knew her

from a severe case of Dystonia Musculorum Deformans. ... I can

state with reasonable medical certainty that Diane Ferland was

unable to do any job within the economy prior to 1989. She has

done any possible thing in her power to prevent being disabled.

However, her disease process has progressed to the point where

she is disabled at present and certainly has been disabled since

18 June 1989."). Additionally, both plaintiff and her husband

testified that her condition was as severe in June of 1989 as it

is today, but that she simply sought treatment for it beginning

in 1990 (Tr. 166, 176, 184-45) .

Because the record medical evidence is at best ambiguous and

because plaintiff's treating physicians have both offered expert

opinions that she was totally disabled well before her date last

insured, the ALJ should at least have called a medical advisor to

assist him in inferring the onset date of plaintiff's disability

as fairly and accurately as possible. See Bailey v. Chater,

(4th Cir. 1995) ("[I]f 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

reguires."); Spellman v. Shalala,

(5th Cir. 1993)

("[I]n cases involving slowly progressive impairments, when the

medical evidence regarding the onset date of a disability is

ambiguous and the [Commissioner] must infer the onset date, SSR

83-20 reguires that the inference be based on an informed

judgment. The [Commissioner] cannot make such an inference

without the assistance of a medical advisor."); Delorme v.

Sullivan,

(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 reguires the

administrative law judge to call upon the services of a medical

19 advisor and to obtain all evidence which is available to make the

determination.").

That the ALJ should have consulted a medical advisor is also

supported by a recent (albeit unpublished) opinion of the Court

of Appeals for the First Circuit. See May v. Commissioner,

(1st Cir. October 1 , 1997) ("[W]e find that the evidence regarding the date on which claimant's mental impairment

became severe is ambiguous. Therefore, Social Security Ruling

83-20 reguired the ALJ to consult a medical advisor. Neither the

absence of medical treatment records from the relevant period nor

the retrospective nature of [the treating source's] opinion

justified the ALJ's finding that the treating source's report was

too speculative a basis for establishing a severe impairment.").

Finally, reguiring the ALJ to call upon the assistance of a

medical advisor in cases such as this is consistent with prior

rulings from this court. For example, in Field v. Shalala, No.

93-289-B (D.N.H. August 30, 1994), this court (Barbadoro, J.)

held that:

While [SSR 83-20] emphasizes the importance of objective medical evidence, it acknowledges that oftentimes the claimant's first relevant medical record is his or her diagnosis. In these situations, the Ruling precludes the ALJ from simply disregarding or discrediting the claimant's allegations. Instead, where the nature of a claimant's impairment indicates that it might have become disabling prior to its diagnosis date, the ALJ must determine the date on which "it is most reasonable to conclude from the evidence that the impairment was sufficiently severe to prevent the individual from engaging in" substantial gainful activity. . . . Where the onset date must be

20 inferred from "the medical and other evidence describing the history and symptomology of the disease process," the ALJ is reguired to retain a medical advisor's assistance.

slip op. at 6 (citations omitted). Although plaintiff was

well aware of her condition prior to her date last insured (i.e.,

her "diagnosis date" was sometime in her early childhood), the

date when her condition became sufficiently disabling to meet the

reguirements of the Act remains undetermined. In light of all of

the circumstances of this case (e.g., plaintiff's testimony

regarding the onset of her disability, the expert opinion

evidence of retrospective diagnoses, the sparse and ambiguous

medical records predating her date last insured, the testimony of

those who know her and who state that she was unwilling to seek

medical treatment or disability status when she probably could

have, thereby causing the sparse medical record, etc.), a

reasonable and rational decision relative to onset could not be

made without the benefit of expert medical advice.

Conclusion

To be sure, this is a close case, particularly in light of

the relative paucity of medical records prior to plaintiff's date

last insured. And, while the ALJ's decision is, in all other

respects, thorough and well-reasoned, the failure to consult with

a medical advisor with a view toward inferring a reasonable onset

date of plaintiff's disability counsels in favor of remanding

this matter for further proceedings. Accordingly, plaintiff's

21 motion to reverse the decision of the Commissioner (document no.

5) is granted and the Commissioner's motion to affirm the

decision of the Commissioner (document no. 6) is denied.

Pursuant to sentence four of

(g), this matter is

remanded to the ALJ for further proceedings consistent with this

opinion.

SO ORDERED.

Steven J. McAuliffe United States District Judge July 23, 1998

cc: David L. Broderick, Esg. Robert E. Raiche, Sr., Esg.

22