Bica v . SSA 09-CV-014-SM 11/09/09 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Susan E . Bica, Claimant

v. Civil N o . 09-cv-014-SM Opinion N o .

Michael Astrue, Commissioner of Social Security, Respondent

O R D E R

Pursuant to

(g), Susan Bica moves for an

order reversing the Commissioner’s decision to deny her

application for Social Security disability insurance benefits

under Title II of the Social Security Act,

. In

the alternative, she asks the court to remand the case. The

Commissioner moves for an order affirming his decision. For the

reasons given, the matter is remanded to the Administrative Law

Judge (“ALJ”) for further proceedings consistent with this

opinion.

Standard of Review

The applicable standard of review in this case provides, in

pertinent part:

The [district] court shall have power 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. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . .

(g). However, the court “must uphold a denial of

social security disability benefits unless ‘the [Commissioner]

has committed a legal or factual error in evaluating a particular

claim.’ ” Manso-Pizarro v . Sec’y of HHS,

5 , 16 (1st

Cir. 1996) (quoting Sullivan v . Hudson,

7 7 , 885

(1989)).

Background

The parties have submitted a Joint Statement of Material

Facts (document n o . 1 3 ) . That statement is part of the court’s

record, and the factual background will be summarized here only

to the extent necessary to provide context for this decision.

For purposes of establishing eligibility for Social Security

disability insurance benefits, Bica’s last date insured was June

3 0 , 2003. On September 1 9 , 2006, she applied for disability

insurance benefits, alleging an onset date of June 2 9 , 2003,

which was the last time she engaged in substantial gainful

activity. She claimed she was unable to work due to a ruptured

disc, anxiety, depression, and headaches. As Bica suffered her

2 ruptured disc in 2004, after her last date insured, all agree

that she is not entitled to benefits based on that impairment.

Starting in May of 2001 and continuing through 2006, Bica

was treated as an outpatient at the New England Center for

Comprehensive Counseling Services by D r . Priscilla Cusi, a

psychiatrist.1 Her chief complaints were depression and anxiety.

Dr. Cusi initially diagnosed Bica as being bipolar, but

subsequently characterized her as having a “mood disorder.” Dr.

Cusi provided therapy and prescribed a variety of medications.

In April and May of 2003, Bica was examined by Nurse Practitioner

James Harris. In April she complained of anxiety, and in May she

complained of headaches. As noted, she was last insured on June

3 0 , 2003.

Between the date she was last insured and the time she

applied for disability insurance benefits over three years later,

Bica was treated extensively for her mood disorder and headaches.

For her mood disorder she saw D r . Cusi and then saw D r . T.M.

Cadorette of Monadnock Behavioral Health. For her headaches, she

saw a neurologist, D r . Eugene Lasser, and Sharon Lockwood, PA,

both of Foundation Neurology, as well as D r . Tatiana Nabioullina.

1 From May of 2001 through June of 2003, Bica saw D r . Cusi monthly. From April of 2004 through December of 2006, Bica saw Dr. Cusi another thirty-four times.

3 At the time of her application, Bica was taking Lexapro and

Trilepta for depression, Lorazopram for anxiety, and Emerge,

Nadolol, and Protonix for headaches.

In addition to medical documentation from most of Bica’s

treating sources, the record includes a “Psychiatric Review

Technique” form directed to the period from June 2 9 , 2003,

through June 3 0 , 2003; 2 “Mental Residual Functional Capacity

Assessment” forms dated November 1 6 , 2007 (by D r . Cadorette),

November 2 1 , 2007 (by D r . Nadine Dubrule, a treating physician),

and December 1 , 2007 (by D r . Susan Vonderheide, a treating

psychologist); a June 1 6 , 2008, “Headaches Residual Functional

Capacity Questionnaire” completed by PA Lockwood; an independent

occupational health consultation assessment dated December 1 4 ,

2007; 3 and opinion letters from D r . Vonderheide dated June 2 0 ,

and July 3 0 , 2008. 4

2 That form, completed by medical consultant D r . Nicholas Kalfas, is all but blank. The principal notation says: “The only source available is from D r . Cusi, whose notes are barely legible and which do not provide sufficient information from which to ascertain the claimant’s function during the period in question.” (Tr. at 296.) 3 In that assessment, D r . Barbara O’Dea wrote: “Her [Bica’s] psychiatric and neurological difficulties of poor memory, attention and learning difficulties, and low stress tolerance, would make any further efforts at full time work even if modified, very difficult.” (Tr. at 335.) 4 On June 2 0 , D r . Vonderheide opined that Bica was “still unable to work either part-time or full-time . . . [and] will

4 After conducting a hearing at which Bica was represented by

counsel, the ALJ issued a decision in which he reported the

following relevant findings:

3 . Through the date last insured, the claimant had the following severe impairments: a mood disorder and migraine headaches (20 CFR 404.1520(c)).

4 . Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 4 0 4 , Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404. 1526).

5 . After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) except for more than semi-skilled tasks.

7 . The claimant was not under a disability as defined in the Social Security Act, at any time from June 2 9 , 2003, the alleged onset date, through June 3 0 , 2003, the date last insured (20 CFR 404.1520(f)).

continue to suffer from long-term mental and physical handicaps which will prevent her from working for any employer.” (Tr. at 373.) On July 3 0 , she opined that “Ms. Bica has been unable to work full-time since early 2003 . . . due to a combination of physical and psychiatric factors, including back and neck problems, as well as Major Depression, Obsessive-Compulsive Disorder, as well as difficulty with her cognition at times.” (Id. at 411.) D r . Vonderheide’s treatment notes, however, are not part of the record.

5 (Administrative Transcript (hereinafter “Tr.”), at 12-15

(emphasis added).) That i s , the ALJ did not determine whether

Bica was disabled at the time of the hearing.

Discussion

According to Bica, the ALJ’s decision should be reversed,

and the case remanded, because the ALJ did not: (1) consider all

the medical evidence in the record; (2) properly develop the

record; (3) consider all of her impairments and their combined

effect on her ability to work; or (4) recognize and consider non-

exertional limitations in assessing her residual functional

capacity. She further argues that the ALJ’s decision is not

supported by substantial evidence. The Commissioner disagrees,

categorically.

To be eligible for disability insurance benefits, a person

must: (1) be insured for such benefits; (2) not have reached

retirement age; (3) have filed an application; and (4) be under a

disability.

(a)(1)(A)-(D). The only question in

this case is whether the ALJ erred in determining that Bica was

not under a disability at a time when she was insured.

For the purpose of determining eligibility for disability

insurance benefits,

6 [t]he term “disability” means . . . 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.

(d)(1)(A).

In order to determine whether a claimant is disabled for the

purpose of determining eligibility for disability insurance

benefits, an ALJ is required to employ a five-step process. See

.

The steps are: 1 ) if the [claimant] is engaged in substantial gainful work activity, the application is denied; 2 ) if the [claimant] does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3 ) if the impairment meets the conditions for one of the “listed” impairments in the Social Security regulations, then the application is granted; 4 ) if the [claimant’s] “residual functional capacity” is such that he or she can still perform past relevant work, then the application is denied; 5 ) if the [claimant], given his or her residual functional capacity, education, work experience, and age, is unable to do any other work, the application is granted.

Seavey v . Barnhart,

, 5 (1st Cir. 2001) (citing

, which outlines the same five-step process as

the one prescribed in

).

7 The claimant bears the burden of proving that she is

disabled. See Bowen v . Yuckert,

3 7 , 146 (1987). She

must do so by a preponderance of the evidence. See Mandziej v .

Chater,

2 1 , 129 (D.N.H. 1996) (citing Paone v .

Schweiker,

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

In assessing a disability claim, the [Commissioner] considers objective and subjective factors, including: (1) objective medical facts; (2) plaintiff’s subjective claims of pain and disability as supported by the testimony of the plaintiff or other witness; and (3) the plaintiff’s educational background, age, and work experience.

Mandziej,

(citing Avery v . Sec’y of HHS,

9 , 23 (1st Cir. 1986); Goodermote v . Sec’y of HHS,

, 6 (1st Cir. 1982)).

As noted, claimant advances five separate grounds for

remanding this case. One, however, is dispositive. In support

of her argument that the ALJ’s decision is not supported by

substantial evidence, Bica cites three cases from this district,

along with Social Security Ruling 83-20,

(S.S.A.),

for the proposition that “if a question arises as to when the

claimant’s impairments become so severe as to render the claimant

disabled, the ALJ should consult a medical expert.” (Clm’t’s

Memo. of Law, at 14.) In light of Moriarty v . Astrue, N o . 07-cv-

342-SM,

(D.N.H. Aug. 2 8 , 2008), and Ryan v .

8 Astrue, N o . 08-cv-17-PB,

(D.N.H. Aug. 2 1 , 2008),

claimant’s argument carries the day.

SSR 83-20 points out that “[d]etermining 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.”

, at * 2 . This

case presents just such a situation. In her 2006 application,

Bica claimed a 2003 onset date. The record does include notes

made by Bica’s treating psychiatrist, D r . Cusi, from 2001 through

2003, but D r . Kalfas (Tr. at 2 9 6 ) , D r . Cadorette (id. at 3 4 1 ) ,

the ALJ (id. at 3 2 ) , and claimant’s counsel (id.) have all

commented on the illegibility of D r . Cusi’s notes, and D r . Kalfas

went even further, stating that those notes “do not provide

sufficient information from which to ascertain the claimant’s

function during the period in question” (id. at 2 9 6 ) . Moreover,

there are no appraisals, by medical professionals, of the impact

of Bica’s various impairments on her ability to perform work-

related activities that are contemporaneous with the alleged

onset date. Finally, while Bica’s counsel argued at the hearing

that she had “five or six doctors agreeing that [Bica was] 100

percent disabled” at the time of the hearing (id. at 2 8 ) , which

was certainly enough to place Bica’s current condition at issue,

the ALJ did not determine whether Bica was disabled at the time

9 of the hearing, and, obviously, did not consult a medical expert

to determine an onset date. That was a legal error.

As Judge Barbadoro explained in Ryan, the fact that the ALJ

did not determine whether Bica was disabled at the time of the

hearing did not obviate the need to determine an onset date.

Rather, the ALJ had an obligation first to address the issue of

present disability and then, if necessary, establish the onset

date.

, at *7-*8. This case may not involve

medical conditions that are as obviously progressive as the

claimant’s Huntington’s Disease in Ryan, but Bica’s impairments

have some commonalities with the claimant’s mental illness in

Moriarty. Furthermore, Bica testified that she had suffered from

headaches, depression, and anxiety since her youth (Tr. at 54-

5 5 ) , and the ALJ himself noted that “[m]ore recent medical

records establish possible worsening in her medical condition,”

which reinforces the idea that Bica’s impairments are, like those

in Ryan, progressive in nature. In sum, this case must be

remanded so that the ALJ can determine, in the first instance,

whether Bica is currently under a disability and then, if

necessary, determine an onset date with the assistance of a

medical expert.

10 Conclusion

For the reasons given, claimant’s motion to remand for a new

administrative determination (document no. 11) is granted, and

the Commissioner’s motion to affirm his decision (document no.

12) is denied. Pursuant to sentence four of

(g),

this matter is remanded to the ALJ for further proceedings. The

Clerk of the Court shall enter judgement in accordance with this

order and close the case.

SO ORDERED.

Steven J./McAuliffe Chief Judge

November 9, 2009

cc: Janine Gawryl, Esq. Robert J. Rabuck, Esq.

11