Pierson v . SSA 05-CV-276-SM 04/28/06 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Lori L . Pierson, Claimant

v. Civil N o . 05-cv-276-SM Opinion N o .

Jo Anne B . Barnhart, Commissioner, Social Security Administration Defendant

O R D E R

Pursuant to

(g), claimant, Lori L . Pierson,

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”). She says the Administrative Law Judge (“ALJ”) erred in

concluding that she was not disabled prior to the date on which

her insured status expired. Defendant objects and moves for an

order affirming the decision of the Commissioner. For the

reasons set forth below, this matter is remanded to the ALJ for

further proceedings. Factual Background

I. Procedural History.

Claimant’s disability insured status expired on December 3 1 ,

1995. Nearly eight years later, on October 1 7 , 2003, she filed

an application for disability insurance benefits under Title II

of the Act, alleging that she had been unable to work since

November 2 4 , 1992, due to a combination of chronic neck, back,

and shoulder pain, anxiety, depression, Fibromyalgia, asthma, and

gastrointestinal problems. Administrative Record (“Admin. Rec.”)

at 1 5 , 4 6 , 53-54. See also Admin. Rec. at 231-34. Her

application was denied. She then requested an administrative

hearing to review that denial.

On October 8 , 2004, claimant, her attorney, and her husband

appeared before an Administrative Law Judge, who considered

claimant’s application de novo. On April 2 3 , 2005, the ALJ

issued his order, concluding that claimant retained the residual

functional capacity to “lift and/or carry up to twenty pounds

occasionally and ten pounds frequently. She is able to sit for

up to six hours in an eight-hour day with normal breaks. She is

able to stand and/or walk for up to six hours in an eight-hour

day with normal breaks.” Admin. Rec. at 1 9 . Accordingly, he

2 concluded that claimant “was not under a ‘disability’ as defined

in the Social Security Act, at any time through the date of [his]

decision.”

Claimant then sought review of the ALJ’s decision by the

Appeals Council. On July 5 , 2005, however, the Appeals Council

denied her request, thereby rendering the ALJ’s decision a final

decision of the Commissioner, subject to judicial review. On

August 2 , 2005, claimant filed an action in this court, asserting

that the ALJ’s decision was not supported by substantial evidence

and seeking a judicial determination that, prior to the

expiration of her insured status, she was disabled within the

meaning of the Act. Claimant then filed a “Motion for Order

Reversing Decision of the Commissioner” (document n o . 8 ) . The

Commissioner objected and filed a “Motion for Order Affirming the

Decision of the Commissioner” (document n o . 9 ) . Those motions

are pending.

II. Stipulated Facts.

Pursuant to this court’s Local Rule 9.1(d), the parties have

submitted a statement of stipulated facts which, because it is

part of the court’s record (document n o . 1 0 ) , need not be

3 recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.

Standard of Review

I. Properly Supported Findings by the ALJ are Entitled to Deference.

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

Commissioner of Social Security, with or without remanding the

cause for a rehearing.” Factual findings of the Commissioner are

conclusive if supported by substantial evidence. See

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

Human Services,

(1st Cir. 1991). 1 Moreover,

provided the ALJ’s findings are supported by substantial

evidence, the court must sustain those findings even when there

may also be substantial evidence supporting the adverse position.

1 Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison C o . v . NLRB,

9 7 , 229 (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.,

0 7 , 620 (1966).

4 See Tsarelka v . Secretary of Health & Human Services,

(1st Cir. 1988) (“[W]e must uphold the [Commissioner’s]

conclusion, even if the record arguably could justify a different

conclusion, so long as it is supported by substantial

evidence.”). See also Rodriguez v . Secretary of Health & Human

Services,

1 8 , 222-23 (1st Cir. 1981).

In making factual findings, the Commissioner must weigh and

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

of Health & Human Services,

7 , 40 (1st Cir. 1984)

(citing Sitar v . Schweiker,

9 , 22 (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.” Irlanda Ortiz,

(citation omitted). Accordingly, the court will give deference

to the ALJ’s credibility determinations, particularly where those

determinations are supported by specific findings. See

Frustaglia v . Secretary of Health & Human Services,

9 2 ,

195 (1st Cir. 1987) (citing Da Rosa v . Secretary of Health &

Human Services,

4 , 26 (1st Cir. 1986)).

5 II. The Parties’ Respective Burdens.

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.”

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

claimant to establish the existence of a disabling impairment.

See Bowen v . Yuckert,

3 7 , 146-47 (1987); Santiago v .

Secretary of Health & Human Services,

, 5 (1st Cir.

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

impairment prevents her from performing her former type of work.

See Gray v . Heckler,

(1st Cir. 1985) (citing

Goodermote v . Secretary of Health & Human Services,

, 7

(1st Cir. 1982)). Nevertheless, the claimant is not required 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,

0 8 , 810-11 (D. Mass. 1982).

In assessing a disability claim, the Commissioner considers

both objective and subjective factors, including: (1) objective

6 medical facts; (2) the claimant’s subjective claims of pain and

disability, as supported by the testimony of the claimant or

other witnesses; and (3) the claimant’s educational background,

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

Health & Human Services,

9 , 23 (1st Cir. 1986);

Goodermote,

. Provided the claimant 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. See Vazquez v . Secretary of Health

& Human Services,

, 2 (1st Cir. 1982). If the

Commissioner shows the existence of other jobs that the claimant

can perform, then the overall burden to demonstrate disability

remains with the claimant. See Hernandez v . Weinberger,

(1st Cir. 1974); Benko v . Schweiker,

9 8 ,

701 (D.N.H. 1982).

When determining whether a claimant is disabled, the ALJ is

required to make the following five inquiries:

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

(2) whether the claimant has a severe impairment;

7 (3) whether the impairment meets or equals a listed impairment;

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

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

. Ultimately, a claimant 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, regardless of whether such work exists in the immediate area in which [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work.

(d)(2)(A).

With those principles in mind, the court reviews claimant’s

motion to reverse and the Commissioner’s motion to affirm her

decision.

8 Discussion

I. Background - The ALJ’s Findings.

In concluding that M s . Pierson was not disabled within the

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

step sequential evaluation process described in

. Accordingly, he first determined that claimant had

not been engaged in substantial gainful employment since her

alleged onset date of November 2 4 , 1992. Next, he concluded that

claimant did not suffer from any medically determinable mental

impairment. Admin. Rec. at 1 5 . The ALJ did, however, determine

that, during the time period relevant to his decision, claimant

suffered from recurrent sinus infections and neck strain, both of

which he characterized as “severe,” within the meaning of the

pertinent regulations. Nevertheless, the ALJ concluded that

those impairments did not meet or medically equal one of the

impairments listed in Part 4 0 4 , Subpart P, Appendix 1 . Admin.

Rec. at 1 5 .

The ALJ next concluded that, as of December 3 1 , 1995,

claimant retained the residual functional capacity (“RFC”) to

9 perform the exertional demands of light work.2 In light of that

RFC, the ALJ concluded that claimant could perform her past

relevant work as a photo lab technician, a fast food worker, a

cashier, and a clerk, as those jobs are performed in the national

economy. Admin. Rec. at 1 8 . Consequently, the ALJ determined

that claimant was not “disabled,” as that term is defined in the

Act, when her insured status expired (or through the date of his

decision).

II. Claimant’s Mental Impairments.

On appeal, claimant raises two related issues. First, she

asserts that the ALJ failed to properly take into account her

alleged mental impairments. Next, she claims the ALJ erred in

concluding that she was not, as of the date on which her insured

2 “RFC is what an individual can still do despite his or her functional limitations. RFC is an administrative assessment of the extent to which an individual’s medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities. Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual’s abilities on that basis.” Social Security Ruling (“SSR”), 96-8p, Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims,

at *2 (July 2 , 1996) (citation omitted).

10 status expired (December 3 1 , 1995), disabled as a result of those

mental impairments and/or a combination of those mental

impairments and her physical impairments.

The problem presented in this case is this: perhaps because

she did not have health insurance until approximately 1997,

claimant’s medical records prior to December 3 1 , 1995, are, at

best, sparse. And, those medical records that do exist from the

relevant period of time provide little support for claimant’s

alleged mental impairments. Accordingly, the ALJ concluded:

During the time period relevant to this decision, the claimant and her representative have submitted no progress notes, treating notes, [records of] hospitalization, or diagnostic testing from a treating or examining physician prior to her date last insured to show treatment for any mental impairment. While the medical evidence of record contains clinical signs and findings regarding the claimant’s current ability to perform work related functions, there is no objective medical evidence prior to December 3 1 , 1995 to support a medically determinable mental impairment.

Admin. Rec. at 15 (emphasis supplied).

In support of her claim that she suffered from disabling

mental impairments as of December 3 1 , 1995, claimant points to

statements she made during her initial consultation with D r .

11 Judith Boule-Bruch, on September 4 , 1997. D r . Boule’s notes

reveal that claimant reported that she “has had problems with

depression and suicidal ideation as a lifelong problem; she says

ever since third grade.” Admin. Rec. at 119. But, even

crediting claimant’s assertion that she has suffered from

depression for much of her life, there are no medical records to

support the conclusion that her depression was, prior to the

expiration of her insured status, disabling. As the Commissioner

points out,

“[t]o the extent that her symptoms date to [claimant’s] childhood, the Commissioner surmises they were also present throughout her working years, further undermining her claim that her mental impairments were severe under Social Security rules.”

Defendant’s memorandum (document n o . 9 ) at 7 (citing Goodermote,

) .

Nevertheless, claimant says the lack of objective medical

evidence of a mental impairment prior to her date last insured is

not fatal to her application for disability benefits. In support

of that position, claimant says that while objective medical

evidence is necessary to prove that her impairments are, in fact,

disabling, such evidence is not necessary to establish the onset

12 date of her disability. And, says claimant, the ALJ erroneously

conflated two critical steps in his analysis: the determination

of whether claimant currently suffers from a severe mental

impairment and the subsequent calculation of the onset date of

that impairment.

As to the first of those two steps, claimant asserts that

the report of Richard, Toye, Ph.D., a clinical psychologist,

amply supports her claim that she suffers from disabling mental

impairments. The court agrees. Among other things, D r . Toye

found claimant’s current mental impairments adversely affect her

ability to perform several work-related tasks. Specifically, D r .

Toye concluded that claimant was “markedly limited” in her

ability t o : maintain attention and concentration sufficient to

perform work tasks throughout an 8-hour work day; perform

activities within a schedule, maintain regular attendance, and be

punctual; complete a normal work day and workweek without

interruptions from psychologically-based symptoms; and perform at

a consistent pace without an unreasonable number and length of

rest periods. Admin. Rec. as 222-23.3

3 The ALJ’s opinion does not reference the psychological assessment prepared by D r . Toye. Although the record is unclear

13 Crediting those findings, along with those of claimant’s

other treating physician, D r . Judith Boule-Bruch (see Admin. Rec.

at 119-24; 213-15), as well as the observations made by

claimant’s husband (Admin. Rec. at 254-56) and her friend (Admin.

Rec. at 1 7 5 ) , the record certainly suggests that claimant’s

current mental impairments are disabling, particularly when

combined with her physical impairments.4 Nevertheless, the

problem identified by the ALJ remains: aside from claimant’s

assertion that her mental impairments were disabling on or before

December 3 1 , 1995, there are no medical records from the relevant

period to support such a finding.

on this point, that omission might be explained by the fact that Dr. Toye’s report was not finalized until December 2 1 , 2004 - approximately 10 weeks after the ALJ conducted his hearing on the matter. Nevertheless, D r . Toye’s report was prepared well before the ALJ issued his decision on April 2 2 , 2005. And, because that report is part of the record submitted to the court, the court assumes that it was also available to the ALJ prior to the date on which he issued his decision. If that is not the case, the ALJ will have the opportunity to consider D r . Toye’s report on remand. 4 Because this matter is remanded to the ALJ for further consideration, the court will leave it to him to determine, at least initially, whether the record supports a finding that claimant currently suffers from mental impairments that are “severe.” In reaching that decision, the ALJ should, of course, employ the procedures described in

.1520a.

14 Thus, the question presented by claimant’s appeal is whether

that absence of medical records for the relevant temporal period

is necessarily fatal to her claim. It is not. Objective medical

evidence is necessary to establish the existence of a disabling

impairment. See, e.g.,

(“A physical or

mental impairment must be established by medical evidence

consisting of signs, symptoms, and laboratory findings, not only

by your statement of symptoms.”). Importantly, however, if a

claimant is found to suffer from a disabling impairment,

objective medical evidence, while preferred, is not essential to

resolving the onset date of that disability.

Social Security Ruling 83-20, entitled “Titles II and XVI:

Onset of Disability,” makes clear that there are three factors

that must be considered when determining the onset date of a

claimant’s disability: “the applicant’s allegations, work

history, if any, and the medical and other evidence concerning

impairment severity.” SSR 83-20,

at *2 (1983).

Nowhere in the SSR is there any suggestion that the absence of

medical records establishing an onset date is fatal to his or her

disability claim. In fact, the SSR provides just the opposite,

specifically noting that in some cases it may be necessary to

15 infer the onset date of a claimant’s disability from non-medical

evidence.

In some case, 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. If there is information in the file indicating that additional medical evidence concerning onset is available, such evidence should be secured before inferences are made.

If reasonable inferences about the progression of the impairment cannot be made on the basis of the evidence in [the] file and additional relevant medical evidence is not available, it may be necessary to explore other sources of documentation. Information may be obtained from family members, friends, and former employers . . . to furnish additional evidence regarding the course of the individual’s condition.

SSR 83-20,

at * 3 (emphasis supplied).

In light of the foregoing, the ALJ’s determination that

“there is no objective medical evidence prior to December 3 1 ,

1995 to support a medically determinable mental impairment,”

Admin. Rec. at 1 5 , while likely correct, is not dispositive of

16 claimant’s application for disability benefits. The first step

in the inquiry is to determine whether claimant is currently

disabled. If s o , the next step is to determine the onset date of

that disability. And, critically, the absence of medical

evidence prior to the expiration of her insured status is not

dispositive of claimant’s assertion that she suffered from a

disabling mental impairment during that period.

Given the absence of objective medical findings during the

relevant period, prior to rejecting claimant’s application, the

ALJ should have considered (and discussed in his decision) the

other relevant factors that are set forth above (e.g., the

claimant’s allegations; the testimony of friends, family, co-

workers, former employers, etc. about claimant’s condition and

its affect on her ability to engaged in substantial gainful

activity; and the claimant’s work history). See SSR 83-20,

at *2-3. Additionally, if necessary, he should have

called upon a medical consultant to assist him in inferring the

onset date of claimant’s impairment(s).

at * 3 .

17 Conclusion

Having carefully reviewed the administrative record and the

arguments advanced by both the Commissioner and claimant, the

court concludes that there is not substantial evidence in the

record to support the ALJ’s determination that claimant is not

entitled to disability benefits. The ALJ erred in concluding

that because there is “no objective medical evidence prior to

December 3 1 , 1995 to support a medically determinable mental

impairment,” Admin. Rec. at 1 5 , he could not conclude that, prior

to that date, claimant was disabled by reason of a mental

impairment. That was an error.

In resolving claimant’s application for disability benefits,

the ALJ should first determine whether claimant is presently

disabled. Then, if he concludes that claimant is presently

disabled, he should determine the onset date of her disability.

See, e.g., Nelson v . Commissioner of Social Security,

at *2 (D. M e . May 2 4 , 2005) (“The administrative law

judge did not follow this procedure. Rather than determining

that the plaintiff was disabled as of the date of decision and

then proceeding to fix the date of onset, he erroneously assessed

18 whether, for purposes of SSD, she was disabled as of her DLI.

This was a regrettable error.”).

Finally, the court notes that the lack of objective medical

evidence of a disabling impairment prior to the expiration of

claimant’s insured status does not necessarily doom her claim for

disability benefits. When objective medical evidence is lacking,

the ALJ must evaluate other evidence to infer the onset date of a

claimant’s disability. See generally SSR 83-20. In this case,

such evidence takes the form of claimant’s testimony, as well as

that of her husband and her friend (both of whom have known her

since well before her alleged onset date), and the professional

opinions of her treating physicians. If necessary, the ALJ could

also contact claimant’s prior employers, to discuss with them the

reason(s) she left their employ, the nature and quality of her

work, whether her job performance was adversely affected by her

claimed impairment(s), etc. And, as noted above, the ALJ could

also employ the services of a medical consultant to assist him in

inferring the date on which claimant’s impairment(s) likely

became disabling.

19 For the foregoing reasons, claimant’s motion to reverse the

decision of the Commissioner (document no. 8) is granted to the

extent it seeks remand to the ALJ for further proceedings. In

all other respects, claimant’s motion is denied. The

Commissioner’s motion to affirm her decision (document no. 9) is

denied. Pursuant to sentence four of

(g), this

matter is hereby remanded to the ALJ for further proceedings

consistent with this order and, if the ALJ sees fit, the taking

of additional evidence and/or testimony. The Clerk of Court

shall enter judgment in accordance with this order and close the

case.

SO ORDERED. ^

Steven J. McAuliffe Chief Judge

April 28, 2006

cc: Francis M. Jackson, Esq. Karen B. Nesbitt, Esq. David L. Broderick, Esq.

20