Sibley v. SSA CV-12-20-PB 2/15/13 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

James Sibley, o/b/o Susan Sibley (deceased)

v. Civil No. 12-cv-20-PB Opinion No.

Michael J. Astrue. Commissioner, Social Security Administration

MEMORANDUM AND ORDER

James Sibley, the widower of claimant Susan Sibley, seeks

judicial review of a ruling by the Commissioner of the Social

Security Administration denying Sibley's application for Social

Security Disability Insurance ("SSDI"). Sibley claims that the

Administrative Law Judge ("ALJ") lacked substantial evidence to

support his finding that she was not disabled as of her date

last insured. Sibley also claims that the ALJ failed to

properly evaluate the medical evidence, failed to call a medical

advisor to testify as to Sibley's date of onset, relied on

improper factors to conclude that Sibley's testimony was not

credible, and ignored Sibley's request to reopen a prior

termination of benefits. For the reasons set forth below, I

remand the case for further proceedings before the Commissioner. I. BACKGROUND1

A. Procedural History

Sibley, who died unexpectedly on June 12, 2011, began

receiving SSDI in 1987 at age twenty-one due to systemic lupus

erythematosus, arthritis, and severe avascular necrosis-related

degenerative joint disease. After receiving benefits for nine

years, the SSA terminated them in August 1996 based on its

determination that her impairments had improved enough to allow

her to return to work. She did not appeal the termination, but

in July 1997, she filed a new claim and moved to reopen and

reverse the earlier termination decision. On August 17, 1998,

the SSA Office of Disability Adjudication and Review approved

Sibley's new application and reinstated her benefits retroactive

to the August 1996 termination date, finding that she had been

continuously unable to work since then.

In January 2002, the SSA began a continuing disability

review of Sibley's case. On January 24, 2003, the SSA provided

1 The background facts are presented in the parties' Joint Statement of Material Facts (Doc. No. 14) and are summarized here. I also rely on the Plaintiff's supplement to the joint statement and the Administrative Transcript. Citations to the Administrative Transcript are indicated by "Tr." 2 notice that Sibley's benefits would again be terminated._ Sibley

did not appeal the decision.

On February 9, 2009, Sibley filed a new application for

SSDI. She alleged a disability onset date of April 1, 2003.

She claimed disability due to lupus, fibromyalgia, vascular

necrosis, migraines, chronic pain, bone deterioration,

arthritis, and gastroesophageal reflux disease. Her application

was denied initially and upon reconsideration. She requested a

hearing before an ALJ, which was held on October 18, 2010.

Sibley, represented by counsel, her husband, and a vocational

expert testified.

At the hearing, Sibley moved to reopen the January 2003

termination, arguing that there was no evidence in the record to

support a finding of medical improvement. Tr. 60-61. She also

disputed the onset date as originally alleged in her February

2009 application. Her counsel explained that the district

~ The notice stated, "After reviewing all of the information carefully, we've decided that your health has improved since we last reviewed your case. And you're now able to work. . . . You're no longer disabled as of 12/02." Doc. No. 11-3. The notice included a second, contradictory explanation for the termination. It stated, "[t]here is no medical evidence on file to establish your current level of functioning" because "you failed to cooperate with the review process."

Sibley claims she cooperated with the agency by providing contact information for her treatment providers. 3 office "picked" that date "because they won't allow you a date

of onset that's within a previously adjudicated period."

. See also

(stating in the Field Office Disability

Report that current onset date used was April 1, 2003, because

prior claim cessation was March 2003). Notwithstanding the

onset date alleged in her application, Sibley maintained that

"she became disabled when she first went on Social Security and

has continued to be disabled" since then.

. The ALJ

did not resolve the onset date issue and used the April 1, 2003,

date during the hearing "for the sake of argument." On January

20, 2011, Sibley's counsel submitted a post-hearing memorandum

amending her alleged onset date from April 1, 2003, to June 9,

1992. Tr. 208.

On February 3, 2011, the ALJ issued a decision finding that

Sibley was not disabled at any time between April 1, 2003, and

September 30, 2004, her date last insured. Tr. 24. He did not

address her amendment of the onset date. Her claim was selected

by the Decision Review Board, but was never reviewed.

Accordingly, the ALJ's decision is the final decision of the

Commissioner.

4 B. Medical History

Sibley has a history of disabling health problems that

began at age sixteen, including lupus and avascular necrosis

which resulted in multiple joint replacements. She received

SSDI from 1987 through February or March 2003.3 Because the SSA

previously determined that Sibley was disabled during that

period, I focus on her treatment history beginning in 2003, when

her benefits were terminated.

The record contains hospital records and treatment notes

for the period from July 3, 2002, through August 10, 2007. In

addition, two physicians submitted medical assessments of

Sibley's functional limitations: Dr. Douglas Joseph, who became

Sibley's treating orthopedist in October 2004 and continued to

treat her at least until his January 2011 report, Tr. 213-14;

and Dr. Matt Mesewic, a non-examining, consulting physician.

Id. at 378-85. Following the hearing before the ALJ, Dr. Joseph

submitted a check-marked questionnaire. See id. at 213-14. He

confirmed the following:

3 The 2003 termination letter indicated that her last benefits check would be for February 2003, but the 2009 disability application indicated she received benefits through March 2003.

5 - He performed bilateral knee replacements on Sibley in May 2 00 6 and May 2 007;

- His clinical findings and her medical history are consistent with her expressed level of symptomology, including that, at least since her hip surgery in 2001, she never had an extended period of time during which her pain, fatigue, and other symptoms would have allowed her to work outside of her home on more than a very flexible, part-time basis;

- Since 2004, there was never an extended period when her chronic pain, fatigue, and exertional limitations would have allowed her to work outside her home at even a sedentary job on a full-time reliable basis; and

- Sibley would need to miss work more than four days per month and would require more than four unscheduled rest periods of at least ten minutes during an eight-hour workday.

Dr. Masewic completed a physical residual functional

capacity assessment ("RFC") on March 26, 2009. Tr. 378-85. He

indicated that her primary diagnosis was fibromyalgia, and her

secondary diagnosis was avascular necrosis. Id. at 378. He

concluded that there was "no evidence to support 'bone

deterioration' or arthritis"; her lupus had been in remission

since 1997; and there was no evidence of recurrence between

April 1, 2003, and September 30, 2004. Id. at 385. In

addition, her migraines were under control and her reflux

symptoms did not cause severe impairment or have a significant

effect on functional capacity. Id. Her bilateral avascular 6 necrosis had "been stable," did not cause the claimant

significant pain, and contributed only minimally to loss of

functional capacity. Id.

Dr. Masewic also concluded that Sibley suffered from pain

and fatigue due to fibromyalgia, which contributed

"significantly to loss of functional capacity." Id. He noted

that she used "a small amount of vicodin to treat pain," and

that fibromyalgia must be the source of her " 'chronic pain' as

there is no other apparent cause." Id. He also concluded that

she could occasionally lift or carry twenty pounds; frequently

life or carry ten pounds; sit, stand, or walk for about six

hours in an eight-hour workday; push or pull an unlimited

amount; and occasionally climb, balance, stoop, kneel, crouch,

and crawl. Id. at 379-80. He indicated that she had no

manipulative, visual, communicative, or environmental

limitations. Id. at 381.

Dr. Masewic stated that Sibley's "allegations [regarding

the severity of her symptoms] are not credible" because they

"exceed what would be expected when reviewing the totality of

the medical and n o n [-]medical evidence." Id. at 385. He

pointed to a family camping trip in August 13, 2004, when she

7 "walked down a steep hill to the docks daily" as evidence that

her allegations were inconsistent with the medical evidence.

Id.

C. Administrative Hearing - May 16, 2011

1. Sibley's Testimony

Sibley testified that she suffered from chronic pain and

fatigue, which were so severe that she was unable to work on

even a part-time basis. She testified that she experienced

"excruciating pain" when she walked or sat for prolonged

periods, and that she also suffered swelling in her legs. She

typically slept throughout the day so that she could be awake

when her children came home from school. Tr. 47. She testified

that she could not shower without assistance. Id. She also

stated that she was "trying to make artwork using recycled

materials." Id.

Sibley testified that she had a series of joint surgeries

over the years, id. at 39-44, 51-57, including hip and knee

surgeries in 2001 and 2002. Id. at 44. She also testified that

in 2002 she experienced migraines that incapacitated her for

three days at a time. Id. at 45. She suffered repeated

fractures in her ankle due to her avascular necrosis. Id. In addition, she testified that "if I use my hand with a [computer]

mouse today I can't move it tomorrow. That's been true since

1985." IcL at 46.

The ALJ asked Sibley about the medical problems she was

experiencing as of the date of the hearing. She listed her

current doctors and described a typical day. Id. at 47. She

appeared at the hearing in a wheelchair and explained that she

was unable to drive because of her ankle pain. Id. at 48. She

testified that she was unable to make dinner, and her sleep

patterns were irregular.

The ALJ asked her which of her conditions were present

between April 1, 2003, and September 30, 2004. Id. Sibley

testified that she had suffered from migraines since high

school; degeneration of her bones beginning six months after her

lupus diagnosis in 1985; macular degeneration "always"; swelling

and arthritis "always"; fibromyalgia "since I was a kid"; and

lupus since eighth grade. Id. at 49. She testified that

"there's never been a pain-free time" in her life since 1985.

Id. She testified that she had suffered from depression for a

long time, and that in 2003 and 2004 she was "so sick of having

to go find out what's wrong with me from doctors," that she saw

9 doctors less frequently than before or after that time period.

Id. at 64. She said, "I sat on the couch for a year." Id. She

did not provide any more specific testimony about her

impairments between April 1, 2003, and September 30, 2004.

2. Sibley's Husband's Testimony

Sibley's husband stated that Sibley suffered from medical

problems since he met her in 1990. In 2000 and 2001, she had

difficulty walking, standing, and sitting. She experienced

continuous leg, hip, and knee pain. She was unable to walk long

distances, though they were able to go on a camping trip once.

He noticed that her health was deteriorating at the time of the

hearing, and that she suffered from worsening pain. Id.

3. Vocational Expert Testimony

Vocational Expert Christine Spaulding testified that a

hypothetical individual with the same age, vocational

characteristics, and RFC as Sibley would be capable of

performing the jobs of cashier, fast food worker, sales

attendant, sales clerk, and telemarketer, which exist in

significant numbers in the regional and national economies.

10 D. The ALJ's Decision

In his decision dated February 3, 2011, the ALJ followed

the five-step sequential evaluation process set forth in 20

C.F.R. 1520(a)(4) to determine whether an individual is

disabled. Tr. 24-25. Preliminarily, the ALJ found that

Sibley's date last insured was September 30, 2004. Id. at 25.

At step one, he concluded that she had not engaged in any

substantial gainful activity during the period between her

alleged date of onset, which he deemed April 1, 2003, and her

date last insured. Id. At step two, he stated that Sibley had

the following severe impairments: avascular necrosis and

systemic lupus erythematosus. Id. He also noted that she had a

history of fibromyalgia, but that "the record contains no

notation of the requisite 11 of 18 tender points used to make

the diagnosis. She also did not have joint effusion or

synovitis." Id. at 26. In addition, progress notes from 2003

and 2004 "documented no clinical evidence of the Lupus," and

"laboratory results in 2003 and 2004 were negative." Id.

At step three, the ALJ concluded that the claimant did not

have an impairment or combination of impairments through her

date last insured that met or medically equaled one of the

11 listed impairments in 20 C.F.R. Part. 404, Subpart P, Appendix

1. Id. At step four, the ALJ found that Sibley retained the

RFC through her date last insured to perform light work. He

followed a two-step analysis in reaching this conclusion. Id.

at 27. First, he considered whether she suffered from a

medically determinable impairment. He concluded that she did,

and that those impairments "could reasonably be expected to

cause the alleged symptoms." Id. Second, he determined the

extent to which the intensity and persistence of the claimant's

symptoms limited her functioning. Id. He noted that "whenever

statements about the intensity, persistence, or functionally

limiting effects of pain or other symptoms are not substantiated

by objective medical evidence, I must make a finding on the

credibility of the statements based on a consideration of the

entire case record." Id. The ALJ found Sibley's testimony

regarding "the intensity, persistence and limiting effects of

these symptoms . . . not credible to the extent [it was]

inconsistent with" his assessment of her RFC. Id.

The ALJ provided several reasons for concluding that Sibley

was not credible. First, the record showed "occasional office

visits but no documentation of exacerbations requiring emergency

12 room visits or hospitalization." Id. He stated that, "[w]hile

her hip discomfort is no doubt, at times, bothersome, the record

shows her symptoms have remained nominal in severity over time."

Id. In addition, Sibley "does not rely on regular treatment

modalities." Id. She "reports no significant problems with

daily activities" and "was able to do simple chores, run

errands, care for her two children, and partake in recreational

activities." Id. Thus, he concluded, "the claimant's

credibility as to the severity of her symptoms is, at best,

suspect." Id.

The ALJ discounted Dr. Joseph's medical opinion in favor of

Dr. Masewic's. Id. at 28. He explained that, although Dr.

Joseph was a treating physician, his opinion was not entitled to

controlling weight because he "did not begin treating the

claimant until October 2004, which was after the claimant's date

last insured." Id. In addition, when he examined her in

October 2004, Dr. Joseph observed "that she walked quite well

with just a slight limp." Id. After giving her an injection of

pain relievers at that visit, "the claimant reported her hip was

fine." Id. Finally, "X-rays of the hips were unremarkable."

Id. Considering the "discrepancies between Dr. Joseph's

13 clinical observations and his January 2011 statement," the ALJ

instead relied on the opinion of Dr. Masewic, "who asserted in

March 2009, that the claimant could perform light exertion with

occasional postural functions." Id. at 28.

At step five, the ALJ concluded that there were jobs

existing in the national economy in significant numbers that the

claimant could perform. Id.

II. STANDARD OF REVIEW

Under

(g), I am authorized to review the

pleadings submitted by the parties and the administrative record

and enter a judgment affirming, modifying, or reversing the

"final decision" of the Commissioner. My review "is limited to

determining whether the ALJ used the proper legal standards and

found facts [based] upon the proper quantum of evidence." Ward

v. Comm'r of Soc. Sec.,

(1st Cir. 2000).

The ALJ is responsible for determining issues of

credibility and for drawing inferences from evidence in the

record. Irlanda Ortiz v. Sec'y of Health & Human Servs.,

(1st Cir. 1991) (per curiam). It is the role of

the ALJ, not the court, to resolve conflicts in the evidence.

14

The ALJ's findings of fact are accorded deference as long

as they are supported by substantial evidence.

Substantial

evidence to support factual findings exists "'if a reasonable

mind, reviewing the evidence in the record as a whole, could

accept it as adequate to support his conclusion.'" Irlanda

Ortiz,

(quoting Rodriquez v. Sec'y of Health &

Human Servs.,

(1st Cir. 1981)). If the

substantial evidence standard is met, factual findings are

conclusive even if the record "arguably could support a

different conclusion." Id. at 770. Findings are not

conclusive, however, if they are derived by "ignoring evidence,

misapplying the law, or judging matters entrusted to experts."

Nguyen v. Chater,

(1st Cir. 1999) (per curiam).

Ill. ANALYSIS

Sibley moves for reversal and remand on several grounds.

She argues that the ALJ improperly weighed the expert medical

evidence in the record; was required to call a medical expert to

testify about the plaintiff's onset date; and improperly

15 discredited her testimony.4 I address each in turn, find that

each has merit, and grant the motion.

A. The ALJ Failed to Properly Weigh Expert Medical Evidence

Sibley argues that the ALJ should have given controlling

weight to her treating physician's opinion.

When determining a claimant's eligibility for disability

benefits, an ALJ must consider all medical opinions in the case

record.

(b). Generally, the ALJ must give

a treating source's opinion controlling weight if it is "well-

supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with . . . other

substantial evidence [in the record.]"

04.1527(c)(2); Polanco-Quinones v. Astrue,

(1st Cir. 2012). If the ALJ does not give the treating

source's opinion controlling weight, he must provide "good

reasons" for the weight he gives it.5

(c);

4 Sibley also argues that the ALJ was required to address her motion to reopen the 2003 benefits termination, and his failure to do so requires remand. Because I conclude that remand is appropriate on other grounds, and the claimant has not identified a jurisdictional basis for me to remand on this basis, I decline to decide this issue.

5 The factors the ALJ must apply when weighing medical opinion evidence are: the length of the treatment relationship 16 Polanco-Quinones,

. He must also explain

the weight given to any other medical opinion in the record.

(c). The ALJ's order "must be sufficiently

specific to make clear to any subsequent reviewers the weight

the adjudicator gave to the treating source's medical opinion

and reasons for that weight." Young v. Astrue, Civil No. 10-CV-

417-JL,

, at *9 (D.N.H. Sept. 15, 2011) (quoting

SSR 96-2P,

(July 2, 1996)). Because the ALJ

failed to discuss any of the factors set out in the regulations

and lacked substantial evidence for relying on the factors he

did consider, I remand the case for further proceedings.

1. The ALJ Failed to Apply the Relevant Factors

The ALJ neglected to discuss any of the factors set out in

the regulations in weighing Dr. Joseph's and Dr. Masewic's

opinions. With respect to Dr. Joseph's opinion, the ALJ cited

its retrospective nature and "discrepancies" between it and Dr.

Joseph's treatment notes as the sole reasons for discounting the

and frequency of examination; the nature and extent of the relationship; the extent to which medical signs and laboratory findings, and the physician's explanation of them, support the opinion; the consistency of the opinion with the record as a whole; whether the treating physician is a specialist in the field; and any other factors that tend to support or contradict the opinion.

(c) (2)-(6). 17 opinion. Tr. at 28. He did not discuss any of the factors

listed in the regulations. See

(c) (2)-(6).

As for Dr. Masewic, the ALJ stated only that "[i]n light of the

discrepancies" he perceived between Dr. Joseph's treatment notes

and his January 2011 evaluation, "I rely instead on the opinion

of State Agency physician Matt Masewic, M.D., who asserted in

March 2009, that the claimant could perform light exertion with

occasional postural functions." Tr. at 28. The ALJ also failed

to evaluate Dr. Masewic's opinion in terms of the factors set

out in the regulations. See

Accordingly, remand is appropriate so that the ALJ can

reassess the medical opinions of Drs. Joseph and Masewic in

accordance with the regulations. On remand, the ALJ is free to

decide that Dr. Joseph's opinion does not merit controlling

weight, but he must provide "good reasons" for the weight he

gives to Dr. Joseph's opinion and the weight he gives to Dr.

Masewic. See

.1527c; Polanco-Quinones,

6.

2. The ALJ Lacked Substantial Evidence for Discounting Dr. Joseph's Opinion

The ALJ provided two reasons for discounting Dr. Joseph's

opinion: first, because the opinion was retrospective in that it 18 was written in January 2011 and related to a period beginning in

October 2004, after Sibley's date last insured; and second,

because Dr. Joseph's treatment notes were not consistent with

his January 2011 opinion. I conclude that these factors do not

constitute substantial evidence justifying the ALJ's decision to

discount Dr. Joseph's opinion.

a. Retrospective Opinion

The ALJ noted that Dr. Joseph's opinion did not deserve

controlling weight because he "did not begin treating the

claimant until October 2004, which was after the claimant's date

last insured." This fact, on its own, is not dispositive.

Before discounting a retrospective medical opinion, an ALJ must

consider whether it substantiates a disability that existed

during the eligible period or is corroborated by contemporaneous

evidence. See Marcotte v. Callahan,

(D.N.H. 1997) (citing Evangelista v. Sec'y of H.H.S.,

(1st Cir. 1987)). The ALJ failed to properly evaluate

Dr. Joseph's retrospective diagnosis.

b. Discrepancies

The ALJ's factual findings of discrepancies between Dr.

Joseph's 2011 report and his treatment notes are not supported

19 by substantial evidence. The record includes only five pages of

treatment notes by Dr. Joseph. See Tr. 285-86, 289-91. Those

notes are from two office visits that occurred on October 14,

2004, and January 19, 2006. In identifying supposed

discrepancies between Dr. Joseph's 2011 opinion and his

treatment notes, the ALJ referred only to the notes from

Sibley's October 2004 office visit. Dr. Joseph treated her from

October 14, 2004, at least through January 2011, when he

completed the evaluation for this case.

It is entirely appropriate to discount a treating

physician's opinion when it is inconsistent with his own

treatment notes. See, e.g., Teague v. Astrue,

(8th Cir. 2011); Smith v. Astrue,

(D.

Mass. 2010). Here, however, the barebones record - five pages

of treatment notes from two visits two years apart - of Dr.

Joseph's treatment relationship with Sibley cannot reasonably be

used to either bolster or negate the credibility of his

conclusions in 2011 about her functionality between 2001 and

2 011. O f . Soto-Cedeno v. Astrue, 38 0 Fed. Appx. 1, at *3 (1st

Cir. 2010) (stating that a lack of treatment notes "does not

justify the rejection" of a treating physician's opinion).

20 Assuming, though, for the sake of analysis that such minimal

notes could undermine or bolster Dr. Joseph's conclusions, the

ALJ lacked substantial evidence to support his findings of

discrepancies.

First, the ALJ noted that when Dr. Joseph examined Sibley

in October 2004, he observed "that she walked quite well with

just a slight limp." He failed to note Dr. Joseph's subsequent

observation that Sibley had "very sharp localized tenderness in

the lateral aspect of the hip centered over the trochanter" and

"discomfort" in her hip socket. Second, the ALJ noted Dr.

Joseph's observation that the "X-rays of the hips were

unremarkable." It is clear from the notes that Dr. Joseph was

not opining on Sibley's pain level or functional limitations

when he made this statement. One of Sibley's motivations for

visiting Dr. Joseph was "to review her hip films to see if there

is any evidence of mechanical failure of her hip implant." His

assessment that her hip X-rays "appear fine" (hedid not say

that they were "unremarkable"), therefore, was merely a

statement that there had been no mechanical failure of Sibley's

hip implant; it does not contradict his 2011 opinion regarding

her severe physical restrictions. Finally, the ALJ noted that

21 after Dr. Joseph gave Sibley an injection of pain relievers,

"the claimant reported that her hip was fine." Id. at 28. In

fact. Dr. Joseph's notes state that the injection "did give her

relief today but how long lasting it is, it is hard to tell.

Hopefully it will help her somewhat." Id. at 290. The ALJ's

characterization of Sibley's statement that her hip was "fine"

is inaccurate.

For the foregoing reasons, the ALJ's reasons for

discounting Dr. Joseph's opinion are not supported by

substantial evidence. On remand, the ALJ is free to find Dr.

Joseph's medical opinion not credible, but he must do so on a

proper basis. See

(c), (d) (2); Polanco-

Quinones,

6.®

6 The ALJ also failed to address any of the medical evidence in the record beyond the evaluations submitted by Drs. Joseph and Masewic. In particular, he neglected medical records and treatment notes from Sibley's visits to Tufts Medical Center, Pulmonary Associates, Newton-Wellesley Orthopedics, St. Joseph Hospital, St. Joseph Family Medical Center, and the Center for Physical Therapy and Exercise. Although some of these records relate to treatment Ms. Sibley received either before or after the relevant time period, they are still relevant to a determination of disability. See Moret Rivera v. Sec'y of Health & Human Services,

(1st Cir. 1994) [No.93-1700, slip op. at 6]. The ALJ also failed to assess the credibility of Sibley's husband's testimony. The ALJ's findings of fact are not conclusive when they are "derived by ignoring evidence." Nguyen v. Chater,

(1st Cir. 1999). 22 B. The ALJ Was Required to Call a Medical Expert

Sibley next argues that the ALJ was required to call a

medical expert to testify about the plaintiff's onset date of

disability in accordance with SSR 83-20. Titles II & XVI: Onset

of Disability, 1983-

(S.S.A 1983)

("SSR 83-20"). I agree.

"The starting point in determining the date of onset of

disability is the individual's statement as to when disability

began."

The date alleged by the claimant should be used so

long as it is consistent with the evidence available.

If

the date of onset must be inferred from ambiguous evidence, the

ALJ must call on a medical adviser to make that inference, even

if the ALJ has not made a determination about the claimant's

present disability. Id.; Ryan v. Astrue, No. 08-CV-17-PB,

, at *8 (D.N.H. Aug. 21, 2008) .

In her initial application, Sibley indicated that her date

of onset was April 1, 2003. During the hearing and in a post­

hearing memorandum, Sibley amended her alleged date of onset to

On remand, the ALJ shall address the entire medical record in determining whether Sibley was disabled during the relevant period. 23 June 9, 1992, the date of onset as determined by the SSA in its

original award of SSDI benefits. At the hearing, the ALJ used

the April 1, 2003, date "for the sake of argument," essentially

conceding that the onset date was ambiguous. In his decision,

he stated that the date of onset was April 1, 2003, but did not

address Sibley's efforts to amend the date. He provided no

explanation for his conclusion that the appropriate onset date

was April 1, 2003. Here, the date of onset was remote,

ambiguous, and disputed. Accordingly, the ALJ was required to

call a medical adviser to testify as to the onset date.7

C. Substantial Evidence Does Not Support the ALJ's Determination of Sibley's Credibility

The ALJ concluded that Sibley's "credibility as to the

severity of her symptoms is, at best, suspect." Tr. 27. The

ALJ is responsible for determining issues of credibility.

Irlanda Ortiz,

. I defer to an ALJ's credibility

determinations if they are based on substantial evidence. Ward,

; Irlanda Ortiz,

. Here, the ALJ

failed to identify substantial evidence to support his

7 The claimant does not explain what effect an earlier onset date would have on the outcome of her claim, given that she received benefits until February or March 2003. 24 credibility finding. Accordingly, it is not entitled to

deference.

1. No Documentation of Exacerbations Between April 1, 2003, and September 30, 2004

The first factor the ALJ considered in determining Sibley's

lack of credibility was that the record showed "occasional

office visits but no documentation of exacerbations requiring

emergency room visits or hospitalization" between April 1, 2003,

and September 30, 2004. Although true, the ALJ failed to

consider relevant evidence of Sibley's hospitalizations and

emergency room visits before April 1, 2003, and after September

30, 2004.8

For example, a treatment note from an office visit with Dr.

Gregory Williams on October 6, 2004 - less than one week after

the date last insured - states that Sibley visited the emergency

room on October 5, 2004. Tr. 298. Additionally, the ALJ

° Medical evidence from a period "after a claimant's insured status expires may be considered for what light (if any) it sheds on the question whether claimant's impairment(s) reached disabling severity before claimant's insured status expired." Rivera, 19 F.3d at *5 (emphasis in the original). Medical evidence from before the alleged date of onset is also relevant because it aids the claimant in proving that "her impairment(s) reached a disabling level of severity by that date."

An ALJ's findings of fact are not conclusive when they are "derived by ignoring evidence." Nguyen,

. 25 ignored record evidence showing that Sibley underwent multiple

joint surgeries before and after the relevant time period and

visited the emergency room multiple times, including on January

6, 2003, id. at 276; October 5, 2004, id. at 264-66; April 8,

2005, id. at 256; and October 24, 2005, id. at 248. Thus, the

fact that the record may not demonstrate that her impairments

worsened between April 1, 2003, and September 30, 2004, does not

constitute substantial evidence that her complaints are not

credible.

2. Sibley's Symptoms are "nominal in severity"

Second, the ALJ discredited Sibley's testimony about the

severity of her hip pain, finding that "the record shows her

symptoms have remained nominal in severity over time." The ALJ

identified no evidence in the record that supports this

conclusion, and, in fact, medical evidence in the record shows

that her pain has been quite severe over time, requiring regular

prescriptions for and injections of heavy painkillers and

repeated visits to doctors, not to mention multiple joint

replacements and other surgeries.9 The ALJ's bald statement,

9 For example, on July 12, 2004, Sibley visited Dr. Gregory Williams for a cortisone shot and renewal of her Vicodin prescription for her foot pain and back pain. Tr. 300. At an 26 unsupported by the record and unexplained in his decision, that

Sibley's pain has been "nominal in severity" cannot constitute

substantial evidence that she is not credible.

3. Sibley Failed to Pursue "regular treatment modalities"

Third, the ALJ claimed to disbelieve Sibley because she

"does not rely on regular treatment modalities." The ALJ did

not specify which types of treatment were available to Sibley of

which she did not take advantage. Moreover, the record clearly

shows that Sibley did rely on office visits, medication,

emergency room visits as needed, and surgery as needed. The

ALJ's statement, unsupported by the record, that Sibley did not

rely on regular treatment modalities also cannot constitute

substantial evidence of her lack of credibility.

appointment with Dr. Gregory on August 13, 2004, she complained of "total body joint aches, fatigue, and [being] overweight." Id. at 299. Dr. Williams found her complaints sufficiently credible to continue prescribing Vicodin. Id. On October 6, 2004, she reported to Dr. Williams that she experienced shooting pain "all the way down her leg." Id. at 298. She said that her right leg was "giving out on her, and prednisone shots have not helped." Id. Dr. Williams observed that " [h]er gait shows inability to abduct the right hip due to pain." Id. He referred her to an orthopedist for further evaluation. Id. On January 19, 2006, Dr. Joseph recommended total knee replacement. Id. at 285. 27 4. Daily Activities

Finally, the ALJ stated that Sibley "reports no significant

problems with daily activities" and is "able to do simple

chores, run errands, care for her two children, and partake in

recreational activities." Again, the ALJ failed to identify any

specific evidence in the record to support these findings. It

is unclear what chores, errands, or childcare the ALJ believes

Sibley could accomplish. Her testimony refutes this conclusion.

See Tr. at 47-48 (stating that she sleeps all day so she can be

awake when her children are home, is unable to shower on her

own, cannot stand to cook and therefore can only supervise her

family in the kitchen, and cannot drive). Her husband's

testimony corroborated hers. He testified that he performed

most of the physical child care tasks because Sibley was unable

to do so. Id. at 72.

Accordingly, I remand for the ALJ to make credibility

findings on a proper basis. The ALJ "is still free to find the

appellant's testimony . . . is not credible." Da Rosa v . Sec' y

of Health & Human Servs.,

(1st Cir. 1986) .

However, he must support his result with substantial evidence

and "make specific findings as to the relevant evidence he

28 considered in determining to disbelieve the appellant."

at

2 6 .10

10 Sibley also argues that the ALJ's failure to discuss or decide her motion to reopen the 2003 termination of SSDI constituted error requiring remand. I find no basis in the record for the Commissioner's argument that the ALJ implicitly denied the motion at the hearing when he noted the gap between the termination date in 2003 and the claimant's 2009 filing of a new application. See Doc. No. 12-1. The claimant identifies no case law or regulation that requires an ALJ to address a motion to reopen, and I find none. Accordingly, I decline to decide this issue. Although the SSA's internal practice manual requires the ALJ to make a decision on a motion to reopen, see HALLEX I 2-9- 01, http://www.ssa.gov/OP_Home/hallex/I-02/I-2-9-l.html ("If . . . the record shows that in connection with the current application the claimant specifically requested reopening and revision of an unfavorable determination or decision on a prior application, the ALJ must include in the decision a finding on the reopening and revision issue, and supporting rationale."), generally, the manual does not carry the force of law. Chaluisan v. Comm'r Soc. Sec., 481 F. A p p 'x 788, 791 (3d Cir. 2012); Newton v. Apfel,

(5th Cir. 2000); Moore v. Apfel,

(9th Cir. 2000); Schweiker v. Hansen,

(1981). The Fifth Circuit, however, has held that "where the rights of individuals are affected, an agency must follow its own procedures," and, if the claimant can show that a violation of HALLEX was prejudicial, review in federal court is available. Newton,

. The Ninth Circuit, in contrast, has concluded that HALLEX is "strictly an internal guidance tool, providing policy and procedural guidelines to ALJs and other staff members. As such, it does not prescribe substantive rules and therefore does not carry the force and effect of law." See Moore,

. I need not address or resolve this issue because the claimant has not demonstrated prejudice. See Butterick v. Astrue,

, 668 n.3 (10th Cir. 2011) (declining to decide whether to follow the Fifth Circuit's or Ninth Circuit's 29 IV. CONCLUSION

For the foregoing reasons, I deny the Commissioner's motion

to affirm (Doc. No. 12) and grant Sibley's motion to reverse or

remand (Doc. No. 11). Pursuant to

(g), I remand

the case to the Social Security Administration for further

proceedings consistent with this decision.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

February 15, 2013

cc: Simon R. Brown, Esq. Mark Bronstein, Esq. T. David Plourde, Esq.

approach because the claimant "has not affirmatively shown that she was prejudiced by the alleged HALLEX violations"). Thus, while I urge the ALJ to address the claimant's motion to reopen, I find no jurisdictional basis for requiring him to do so. 30