David Timmons v. SSA CV-98-566 08/17/99

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

David L. Timmons Sr.

v. Civil No. 98-566-B

Kenneth S. Apfel, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

David L. Timmons Sr. applied for Title II Social Security

Disability Income ("SSDI") benefits on July 9, 1996, alleging

disability since December 31, 1992, due to diabetes, heart

problems and fatigue. He has not engaged in substantial gainful

activity, as defined by Social Security Administration ("SSA")

regulations, since December 31, 1992. After the SSA denied

Timmons' application, he reguested a hearing before an

Administrative Law Judge ("ALJ"). ALJ Thomas H. Fallon held a

hearing on Timmons' claim on August 7, 1997, and issued a

decision denying his application on November 13, 1997. The

Appeals Council subseguently denied Timmons' reguest for review,

making the ALJ's decision the final decision of the Commissioner

of the Social Security Administration ("Commissioner"). Timmons brings this action pursuant to Section 20 5 (g) of the

Social Security Act,

(g) (West Supp. 1998) ("the

Act"), seeking review of the SSA's decision denying his claim for

benefits. For the reasons set forth below, I reverse the ALJ's

decision and remand for further proceedings.

FACTS1

Timmons alleges an inability to work since December 31,

1992. He was 54 years old at that time. He was insured for

disability insurance purposes until December 31, 1995. In order

to succeed in his claim for benefits, therefore, Timmons must

establish that he was disabled on orbefore that date.

Timmons attended school through the eighth grade, and only

part of the ninth grade. At the age of 17, he left school to

work as a logger with his father. In 1973, Timmons took a job

with Pepsi-Cola. He was a vending machine service and repair

manager for Pepsi-Cola until 1986, supervising a staff of four,

moving, repairing and hooking up eguipment. Timmons guit his job

at Pepsi after 16 years, when he was forced to train his

replacement, one of his employer's young relatives. See Record

1 Unless otherwise noted, the following facts are taken from the Joint Statement of Material Facts submitted by the parties.

-2- at 304 .

Timmons then worked as a snack bar manager at Okemo Mountain

until 1990. He worked from 1990-92 as a janitor for Clean Care,

a Hillsboro-based cleaning company which sent him to work

exclusively at the Sylvania plant in that town. From 1992 until

1996, Timmons was self-employed and performed odd jobs.2

Timmons has not worked at a substantial gainful activity

level, as defined by Social Security regulations, since December

31, 1992.

A. Medical History Prior to December 31, 1995

Dr. James Ballou, a family practitioner, has treated Timmons

since at least the 1980s. Timmons saw Dr. Ballou for a variety

of ailments, including acute asthmatic bronchitis, chest

congestion, and diabetes. Dr. Ballou also prescribed Prozac for

Timmons in 1989 to combat depression. See R. at 203.

Beginning in 1981, Timmons visited Dr. Ballou every few

months complaining of chest congestion and difficulty breathing.

2 Timmons claims that his earnings record does not reflect additional income and Social Security taxes paid which, if credited, could extend his insurance coverage beyond December 31, 1995. After the hearing before the ALJ, Timmons submitted incomplete and unsigned copies of IRS tax forms to support his claim. The ALJ stated that the evidence was insufficient. See Record at 314. I find no error in the ALJ's decision on this point.

-3- Dr. Ballou treated Timmons for asthma and acute asthmatic

bronchitis. He prescribed Marax, which Timmons took until at

least 1992 and again in 1994.

Dr. Ballou referred Timmons to Dr. Donald Wilson for surgery

to remove nasal polyps in 1985. See R. at 216. Dr. Wilson wrote

that Timmons suffered from "significant allergic rhinitis, nasal

polyposis and chronic sinusitis," adding that "I am sure that it

is aggravating his asthmatic bronchitis as well."

In 1985, Timmons weighed 255 pounds, standing 5-feet, 7-

inches tall. In 1989, Dr. Ballou diagnosed Timmons with

diabetes. Dr. Ballou prescribed Glucotrol and referred Timmons

to a nurse for a diet consultation. The nurse's records indicate

that Timmons suffered from diabetes mellitus, hypertriglycer­

idemia, and hypercholesterolemia. She instructed him to lose

weight and placed him on a diabetic diet.

In May 1990, Dr. Ballou ordered an intravenous urogram after

Timmons complained of pain and bleeding consistent with passing a

kidney stone. See R. at 204, 224. The radiology report showed

that Timmons had lumbar scoliosis and bone spurs on vertebral

bodies of several levels. It also showed prostatic calcification

which suggested cystitis.

-4- In 1994, Dr. Ballou found blood, protein and sugar in

Timmons' urine. Timmons was treated in the Emergency Care Center

of Cheshire Medical Center in January 1994, again complaining of

pain while voiding and blood in his urine. He was treated for a

urinary tract infection and hemorrhagic cystitis. The following

month an intravenous urogram showed prostatic calcifications,

with little change since the 1990 test. The report also noted

early arterial calcification in the pelvis and degenerative

changes in the spine, which also appeared unchanged since 1990.

Timmons saw Dr. Ballou 11 times in 1995. Dr. Ballou's

records indicate that these appointments addressed control of

Timmons' diabetes, his breathing problems, and his high blood

pressure.

At the hearing before the ALJ, Timmons testified that his

back problems had existed for "three-guarters" of his life. R.

at 32. The problems included trouble with his sciatic nerve,

causing constant pain down his leg. See

Timmons visited at

least two chiropractors. Dr. Northrup and Dr. Larson. See R. at

51-2 .

Timmons' wife testified that, prior to 1995, Timmons

suffered from back and knee pain which would keep him awake at

night. See

. Mrs. Timmons told the ALJ that a doctor

-5- in Brattleboro gave Timmons a back brace, which he would wear for

seven to eight days at a time. See

She also noted that he

had X-rays taken by Dr. Albert Johnson at his office in Keene,

and that Dr. Johnson and Dr. Northrup had both suggested surgery.

See

. Timmons testified that he refused to have back

surgery because he had "heard stories that are not really good."

.

Medical records to support the couple's testimony on these

points were not submitted to the ALJ, apparently because the

doctors were no longer practicing. Dr. Johnson had passed away

after moving to Hawaii. See

. Also, the Timmons

family home burned down in 1993, destroying his employment

records and, presumably, any medical records stored there. See

.

B. Medical History After December 31, 1995

In April 1996, Dr. Ballou wrote that Timmons likely had

coronary artery disease, noting that a cardiogram showed a

possible old arterial septal myocardial infarction. Timmons

complained of headaches, fatigue and chest pain. Dr. Ballou

prescribed Toprol, ordered blood tests and scheduled a stress

test.

-6- Dr. Frederick Wiese oversaw Timmons' stress test in May

1996. He noted that dyspnea3 limited Timmons' test, and that

Timmons had both resting hypertension and an abnormal resting

EKG. While Timmons' heart rate responded normally to graded

activity. Dr. Wiese stated that Timmons probably needed anti­

hypertensive therapy. He also noted that Timmons could have

coronary disease and endothelial dysfunction.

Timmons visited chiropractor Jeb Thurmond in July 1996,

complaining of severe chronic pain in his knees and lumbosacral

spine area. Dr. Thurmond noted that walking, twisting and

bending exacerbated Timmons' pain, and stated that Timmons

probably could not work for more than an hour without suffering

severe hip and leg pain. Dr. Thurmond's notes indicate that

Timmons suffered from severe cervical and lumbar spine

spondylosis and degenerative disc disease.

A lumbar spine X-ray taken of Timmons in August 1996 showed

asymmetric transitional vertebrae with psuedoarthrosis,

thoracolumbar scoliosis, moderately extensive degenerative

changes, and vascular calcifications. Bony structures and

3 Dyspnea is "shortness of breath, a subjective difficulty or distress in breathing usually associated with disease of the heart or lungs." Stedman's Medical Dictionary 535 (26th ed. 1995) .

-7- vertebral bodies were normal, but there was a partial loss of

disc space, as well as proliferative changes in the mid-lumbar

spine. A chest X-ray taken at the same time showed no active

disease.

Timmons was admitted to the Cheshire Medical Center in March

1997, suffering from acute inferior wall myocardial infarction.

The treating cardiologist. Dr. Craig Brett, noted that Timmons'

abnormal baseline EKG suggested that he had suffered a prior

infarction.4 Dr. Brett wrote that Timmons suffered chest pain

daily, which was typically related to anxiety but sometimes

related to exertion. Upon discharge. Dr. Brett suggested that

Timmons increase his Prozac and seek counseling at Monadnock

Family Service.

Timmons continued to see Dr. Brett throughout the spring of

4 In his decision, the ALJ stated that Timmons' testimony was not credible, noting that "The claimant testified to having six heart attacks prior to December, 1995. The claimant was not diagnosed with cardiac problems until 1996." R. at 21. The ALJ either misunderstood or mischaracterized Timmons' testimony on this point. Timmons' testimony reflects that Dr. Ballou conducted a cardiogram, and "He was excited as hell. He said you had about six heart attacks." R. at 42. Timmons went on to testify that after a subseguent stress test he was told that he "may have had a mild heart attack but nothing that shows up real serious on the . . . record."

. Moreover, letters from Dr. Ballou and Dr. Brett indicate that, although Timmons' heart disease was not diagnosed until 1996, he likely suffered from poor cardiac health prior to that date. See

. 1997. He developed flu symptoms, a dry cough, a lower

respiratory tract infection, and dyspnea. Dr. Brett prescribed

antibiotics and gave Timmons an inhaler. Fearing that Timmons'

chronic lung disease was worse than he initially thought. Dr.

Brett referred Timmons to Dr. Jeffrey Newcomer for a pulmonary

consultation.

Dr. Newcomer diagnosed Timmons with severe chronic lung

disease with restriction in lung capacity which, when combined

with his obesity and cardiac disease, caused profound dyspnea.

Timmons saw Dr. Brett again in June 1997, complaining that

he "feels down in the dumps" due to his financial hardships,

caring for his family, and his poor health. Dr. Brett noted that

Timmons' hypertension had worsened, possibly because of weight

gain. Timmons' condition was suggestive of congestive heart

failure or post-infarct ischemia, although X-rays showed no

active disease in his chest.

Dr. Newcomer completed a functional capacity assessment of

Timmons in July 1997, stating that Timmons was certainly limited

by his severe lung disease. He advised Timmons to avoid any work

which would expose him to inhaled irritants. C. Evidence Submitted to the ALJ After the Hearing

Timmons' attorney submitted additional documents to the ALJ

on September 4, 1997. The medical records included: (1) a 1997

letter from Dr. Ballou summarizing his treatment of Timmons

between 1992 and 1995; (2) a 1997 letter from Dr. Brett noting

that Timmons' health problems were "almost certainly present" in

1995; and (3) a report of a 1997 psychological evaluation

conducted by Dr. Tracey Alysson which details Timmons' "long­

standing and often lifelong nature of severe difficulties"

resulting in "depression, anxiety, physical distress, and

alienation." R. at 300-08.

The new evidence was retrospective in nature and did attempt

to address the period of time prior to Timmons' last date of

insured status. Dr. Ballou's letter, in particular, noted that

Timmons' health was poor throughout the 1990s:

[Timmons was] an obese gentleman with intermittent hypertension, poorly controlled diabetes, poorly controlled weight, chronic lung disease, resulting in the coronary event of 1997.

R. at 300. Dr. Brett wrote that, although he did not treat

Timmons prior to 1997, the current severity of his health

problems made it reasonable to infer that "his underlying

emphysema and coronary artery disease were likely present for

some years previously." R. at 301. Dr. Alysson opined that

-10- Timmons suffered from depression and anxiety well before 1995,

noting that he reported sleep difficulties, headaches, and

feelings of isolation going back 20 years. See R. at 305-06.

On November 13, 1997, the ALJ issued his decision denying

Timmons' claim, noting that the record remained open for more

than a month after the hearing, but that "no additional evidence

has been received." R. at 20. Timmons' attorney wrote to the

ALJ, asking him to withdraw his decision and issue a new one

based on the obvious error regarding the lack of additional

evidence. See R. at 309. ALJ Fallon responded in a letter to

Timmons, stating that the additional evidence did not change his

analysis or the outcome of Timmons' claim:

I find no major errors in my decision. The new evidence submitted referred to a time period after your date last insured and was not material to the period in guestion.

R. at 314. After unsuccessfully seeking review before the

Appeals Council, Timmons brought this action.

STANDARD

After a final determination by the Commissioner denying a

claimant's application for benefits and upon a timely reguest by

the claimant, I am authorized to: (1) review the pleadings

submitted by the parties and the transcript of the administrative

-11- record; and (2) enter a judgment affirming, modifying, or

reversing the Commissioner's decision. See

(g)

(West Supp. 1998). My review is limited in scope, however, as

the Commissioner's factual findings are conclusive if they are

supported by substantial evidence. See Irlanda Ortiz v.

Secretary of Health and Human Servs.,

(1st Cir.

1991);

(g). The Commissioner is responsible for

settling credibility issues, drawing inferences from the record

evidence, and resolving conflicting evidence. See Irlanda Ortiz,

. Therefore, I must "'uphold the [Commissioner's]

findings . . . if a reasonable mind, reviewing the evidence in

the record as a whole, could accept it as adeguate to support

[the Commissioner's] conclusion.'"

(guoting Rodriquez v.

Secretary of Health and Human Servs.,

(1st Cir.

1981)) .

If the Commissioner has misapplied the law or has failed to

provide a fair hearing, however, deference to the Commissioner's

decision is not appropriate, and remand for further development

of the record may be necessary. See Carroll v. Secretary of

Health and Human Servs.,

(2d Cir. 1983); see

also Slessinaer v. Secretary of Health and Human Servs.,

(1st Cir. 1987) ("The [Commissioner's] conclusions of

-12- law are reviewable by this court.") I apply these standards in

reviewing the issues Timmons raises on appeal.

DISCUSSION

An ALJ is required to apply a five-step sequential analysis

to determine whether a claimant is disabled within the meaning of

the Act.5 At step two, the claimant has the burden of

establishing that he suffers from a medically severe impairment

which significantly limits his physical or mental ability to

perform basic work activities. See

.

Although the burden lies with the claimant, he need only make a

de minimis showing to surpass a denial of benefits at step two.

See McDonald v. Secretary of Health and Human Services,

(1st Cir. 1986); Social Security Ruling 85-28,

The ALJ is required to consider the following five steps when determining if a claimant is disabled: (1) whether the claimant is engaged in substantial gainful employment; (2) whether the claimant has a severe impairment thatlasted for twelve months or had a severe impairment for a periodof twelve months in the past; (3) whether the impairment meets or equals a listed impairment; (4) whether the impairment prevents or prevented the claimant from performing past relevant work; (5) whether the impairment prevents or prevented the claimant from doing any other work. See

.

-13- 56856 SSA. The step-two requirement is merely a threshold,

"designed to do no more than screen out groundless claims."

McDonald,

. Thus, an ALJ may deny a claim for

benefits at step two:

only if the evidence shows that the individual's impairments, when considered in combination, are not medically severe, i.e., do not have more than a minimal effect on the person's physical or mental ability(ies) to perform basic work activities. If such a finding is not clearly established by medical evidence, however, adjudication must continue through the sequential evaluation process.

SSR 85-28,

at *3; see also McDonald,

.

Here, Timmons argues that the ALJ erred at step two by

applying a heightened standard to deny his claim for benefits. I

agree.

Although the ALJ's decision does not explicitly set forth a

heightened standard, his statements at the hearing evidence his

misapprehension of the proper step-two analysis:

ATTY: . . . I realize that your concern about the severity - it's our position that the combination of these problems . . . clearly there's a back problem, there's a breathing problem that you have to look at the multiple impairments in combinations and the, the severity - is just the threshold requirement that -- to screen out groundless claims.

ALJ: It's not really a threshold requirement.

ATTY: Well, that's what I understand it -

-14- ALJ: It is a requirement. I don't know where you got that understanding. It's part of the sequential evaluation process.

ATTY: Yes, it is.

ALJ: It's not a threshold.

R. at 49-50. The ALJ is clearly wrong. In upholding the

validity of step two, the Supreme Court stated that:

[B]oth the language of the Act and its legislative history support the Secretary's decision to require disability claimants to make a threshold showing that their ''medically determinable' impairments are severe enough to satisfy the regulatory standards.

Bowen v. Yuckert,

(1987)(emphasis added); see

also McDonald,

("the Secretary is not precluded

from implementing a threshold test of medical severity to screen

out groundless claims")(emphasis added).

Moreover, it is apparent from both the record and the ALJ's

decision that he required more than a "de minimis" showing by

Timmons to surpass step two. The ALJ wrote that, although

Timmons clearly suffered from multiple impairments as of the

hearing, "there is no evidence of any ongoing treatment or

limitations prior to December 31, 1995, the date he was last

insured. There is no longitudinal record which support severity

of these conditions."

-15- The medical evidence before the ALJ did not establish that

Timmons' condition was disabling as of December 31, 1995.

Indeed, the medical evidence regarding Timmons' condition prior

to that date is inconclusive at best, which is precisely why the

ALJ should have proceeded to the next step in the sequential

analysis. Where the evidence clearly shows that a claimant's

impairments have no more than a minimal effect on his ability to

work, the ALJ may deny a claim at step two. See SSR 85-28,

at *3. Where, as here, the medical evidence is

inconclusive, the ALJ must continue to adjudicate the claim.6

See

As such, I must reverse his decision and remand the case

for further consideration at step two of the sequential

analysis.7

6 I state no opinion here as to whether, ultimately, Timmons provided substantial evidence to establish his disability as of December 31, 1995. I speak only to the ALJ's error in holding Timmons to more than a de minimis showing at step two.

7 Although the issue was not briefed by the parties, I am compelled to address the possible relevance of Social Security Ruling 83-20, which sets forth the Secretary's policy on determining the onset date of disability. The Ruling states: 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 adequate medical records are not available. In such cases, it will be necessary to infer the onset date from the

-16- CONCLUSION

Pursuant to sentence four of

(g), I reverse

the decision of the ALJ and remand the case for further

proceedings at step two of the five-step seguential analysis,

consistent with the Secretary's standards as interpreted by the

First Circuit and discussed in this Order. Plaintiff's motion

for an order reversing the decision of the commissioner (document

no. 6) is therefore granted, and the Defendant's motion for an

order affirming the decision of the commissioner (document no. 8)

is denied.

medical and other evidence that describe the history and symptomatology of the disease process. . . . How long the disease may be determined to have existed at the 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 . . . ALJ should call on the services of a medical advisor when onset must be inferred. SSR 83-20,

at *2, 3; see also Field v. Shalala, CV- 93-289-B (D.N.H. August 30, 1994)(reversing decision where ALJ failed to follow substantive reguirements of SSR 83-20, including failure to consult medical advisor in face of ambiguous medical evidence). If, on remand, the ALJ determines that Timmons is disabled within the meaning of the Act, the ALJ must necessarily determine the onset date of Timmons' disability and whether or not that date preceded his last date of insured status. Based upon the record before me and the possibility that no further medical records will be forthcoming, it appears that the ALJ should enlist the services of a medical consultant to help make that determination.

-17- SO ORDERED.

Paul Barbadoro Chief Judge

August 17, 1999

cc: Jonathan Baird, Esg. David Broderick, Esg.

-18-