UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Trudy E. Warneka

v. Case No. 14-cv-00022-PB Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Trudy Warneka seeks judicial review of a ruling by the

Social Security Administration (“SSA”) denying her application

for Disability Insurance Benefits (“DIB”). Warneka claims that

the Administrative Law Judge (“ALJ”) erred in failing to call a

medical advisor to assist him in determining the onset date of

her claimed disability. For the reasons set forth below, I

vacate the decision of the Commissioner and remand for further

administrative proceedings.

I. BACKGROUND

A. Stipulated Facts

Pursuant to Local Rule 9.1, the parties have submitted a

joint statement of material facts, which is part of the court’s

1 record (Doc. No. 14). The facts relevant to the disposition of

this matter are discussed below.

B. Procedural History

Warneka, a former medical assistant, was 45 years old when

she filed an application for DIB. She primarily claimed that

her migraines, depression, anxiety, obesity, degenerative disc

disease, and chronic shoulder pain were disabling conditions as

of her date last insured (“DLI”). She alleged a disability

onset date of May 15, 2001, which was her last day of work. Her

DLI was December 31, 2003. Warneka’s application was initially

denied on July 17, 2009 because of lack of medical evidence of

disability before her DLI. After the initial denial, Warneka

submitted extensive medical records dating back to 1999.

On November 2, 2010, ALJ Robert Klingebiel held a hearing

on Warneka’s claim. He found her not disabled on December 15,

2010. The Decision Review Board vacated ALJ Klingebiel’s

decision and remanded. On May 17, 2012, ALJ Paul Martin held a

hearing on Warneka’s claim. He issued an unfavorable decision

on May 25, 2012, which is the decision being appealed here.

In his decision, ALJ Martin followed the five-step

sequential evaluation process. See

(a)(4).

At Step One, he found that Warneka did not engage in substantial 2 gainful activity between her alleged onset date and her DLI. At

Step Two, he determined that her migraines were a severe

impairment through her DLI but that her mental health

limitations and her other physical impairments were not severe

as of her DLI. At Step Three, he found that Warneka’s

impairments did not meet or medically equal the severity of a

listed impairment.

ALJ Martin determined that Warneka had the residual

functional capacity (“RFC”) through her date last insured to

perform “medium work1 . . . except she can perform all postural

activities on an occasional basis and can reach overhead only

occasionally.” Tr. at 22. In determining her RFC, the ALJ

noted evidence that conflicted with Warneka’s reports of

disabling migraines. He gave no weight to Warneka’s treating

physicians’ opinions because they “do not indicate that the

claimant’s current limitations date back to 2003.” Tr. at 25.

The ALJ gave “some weight” to the opinion of state agency

consultant Dr. Charles Meader, who opined that Warneka was

1 “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, [the ALJ] determine[s] that he or she can also do sedentary and light work.”

(c).

3 capable of “light exertion work”2 and who wrote his opinion

before Warneka submitted her extensive past medical records.

Tr. at 25; Doc. No. 14 at 1, 22. Finally, at Step Four, the ALJ

found that Warneka was capable of performing her past relevant

work as of her DLI, and therefore was not disabled before her

DLI.

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

2 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, [the claimant] must have the ability to do substantially all of these activities. If someone can do light work, [the ALJ] determine[s] that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.”

(b).

4 v. Comm’r of Soc. Sec.,

(1st Cir. 2000).

Findings of fact made by the ALJ 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 v. Sec’y of Health & Human Servs.,

(1st Cir. 1991) (per curiam) (quoting Rodriguez 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).

The ALJ is responsible for determining issues of credibility and

for drawing inferences from evidence in the record. Irlanda

Ortiz,

. It is the role of the ALJ, not the

court, to resolve conflicts in the evidence.

III. ANALYSIS

Warneka argues that the ALJ erred by failing to call a 5 medical advisor in accordance with Social Security Ruling

(“SSR”) 83-20.3 SSR 83-20 requires an ALJ to call a medical

advisor in some circumstances in order to determine the onset

date of a claimant’s impairments. See SSR 83-20,

(Jan. 1, 1983). She also relies on Wilson v. Colvin, which

interpreted SSR 83-20. See Wilson v. Colvin,

(D.N.H. 2014). In response, the Commissioner argues

that even if SSR 83-20 applies to this case, the ALJ was not

required to call a medical advisor because contemporaneous

medical evidence demonstrates that Warneka was not disabled

before her DLI.4

3 Warneka also argues that the ALJ erred by failing to find her depression, anxiety, obesity, degenerative disc disease, and chronic shoulder pain to be severe; by finding her capable of performing “medium” work; and by finding her capable of performing her past relevant work as a medical assistant. Because I agree with her argument about SSR 83-20 and vacate the Commissioner’s decision on that basis, I do not address her other arguments. 4 The Commissioner also contends that the SSA need not follow district court opinions when such opinions conflict with the SSA’s interpretation of a SSR and there has been no contrary holding by the First Circuit. See Doc. No. 12-1 at 3 (citing

; SSR 96-1p,

, at *2). Here, she argues that this court’s holding in Wilson was contrary to the SSA’s interpretation of SSR 83-20, and therefore the SSA will not follow Wilson. See

The Commissioner does not, however, argue that I must give deference to the SSA’s interpretation. Specifically, she makes no argument that Auer deference is applicable to the SSA’s interpretation of a SSR. See Auer v. 6 A. SSR 83-20

SSR 83-20 relates to the determination of a disability’s

onset date. See SSR 83-20,

. For “disabilities of

nontraumatic origin,” SSR 83-20 states that the ALJ’s

determination of a disability onset date “involves consideration

of the applicant’s allegations, work history, if any, and the

medical and other evidence concerning impairment severity.” Id.

at *2. The applicant’s allegations are the “starting point,”

the day the impairment caused the claimant to stop working is

“frequently of great significance,” and medical evidence “serves

as the primary element in the onset determination.” Id.

In some cases, when precise evidence is not available and

an onset date must be inferred, an ALJ must call on a medical

advisor to assist in determining the onset date. Id. at *3.

SSR 83-20 provides in part:

In some cases, it may be possible, based on the medical evidence to reasonably infer that the onset of

Robbins,

(1997) (holding that an agency’s interpretation of its own regulation is entitled to deference as long as it is not “plainly erroneous or inconsistent with the regulation”). While I agree that Wilson is not precedent that binds the SSA in other cases, I must decide this case in accordance with the law as I understand it. The SSA has not given me reason to reconsider Wilson. Accordingly, I do not address the SSA’s contention that Wilson was incorrectly decided.

7 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. . . . The onset date should be set on the date when it is most reasonable to conclude from the evidence that the impairment was sufficiently severe to prevent the individual from engaging in [substantial gainful activity] (or gainful activity) for a continuous period of at least 12 months or result in death. Convincing rationale must be given for the date selected.

(emphasis added).

When an ALJ determines that a claimant suffers from a

present disability but the onset of the disability must be

inferred from ambiguous evidence, courts agree that the ALJ must

consult with a medical advisor before denying a claim for

benefits. Ryan v. Astrue,

(citing Walton v.

Halter,

(3d Cir. 2001); Grebenick v. Chater,

(8th Cir. 1997); Bailey v. Chater,

(4th Cir. 1995). Courts disagree, however, as to whether

an ALJ must consult with a medical advisor when the ALJ skips

over the question of present disability and denies a disability

claim by determining that a claimant was not disabled as of her

8 date last insured. Id. at 18. In such cases, this court has

repeatedly held that an ALJ must consult a medical advisor when

the onset date of a disability is ambiguous. See Fischer v.

Colvin,

; Wilson,

; Ryan,

.

Requiring an ALJ to consult with a medical advisor when the

ALJ makes no finding regarding present disability supports the

policy that SSR 83-20 advances. Specifically, a disability

onset date can be an extremely difficult determination to make

when a claimant suffers from a progressive impairment. Ryan,

. That difficulty does not disappear, however,

when an ALJ bypasses a determination of present disability and

instead denies a disability claim based on a finding that the

claimant was not disabled as of her DLI.

Accordingly, SSR

83-20 should not be limited to cases in which the ALJ makes a

determination of present disability before addressing the onset

date of the disability.

B. Application of SSR 83-20

Here, although far from conclusive, Warneka has produced

evidence to trigger the requirement that the ALJ call on the

assistance of a medical advisor. Rather than address the issue

of present disability, the ALJ simply determined that Warneka 9 was not disabled as of her DLI. Where, as here, there is enough

evidence that a medical advisor could plausibly find that the

claimant was disabled before the DLI, the ALJ cannot bypass the

determination of current disability without calling on a medical

advisor.

There is evidence in the record showing that Warneka is

presently disabled. In June 2010, Dr. Birgit Houston completed

a physical RFC assessment, noting limitations in almost all

categories, and concluding that Warneka was not capable of

gainful employment on a sustained basis. Tr. at 1193-96.

Similarly, Dr. Mimi Thein completed a mental RFC assessment in

June 2010, noting clinical findings of “psychotic symptoms,”

“persistent depression,” and “suicidal ideation (no intent or

plan),” and noting limitations in almost all work-related

activities. Tr. at 1197-1201.

Warneka has also produced evidence that she suffered from

disabling conditions before her DLI. The record shows that she

met with Dr. Elizabeth Blencowe, a psychiatrist, starting in

February 1999 and thereafter on an approximately quarterly basis

for the duration of the insured period. Tr. at 1209-17. During

that time, Dr. Blencowe prescribed various medications for

Warneka’s depression and anxiety. Tr. at 1209-17. At the 10 hearing, Warneka testified that in the time before her last day

of work, she “was calling in sick because . . . [she] was so

depressed [she] couldn’t get out of bed.” Tr. at 45.

Warneka has also produced medical evidence that supports

her contention that her migraines were disabling before her DLI.

Specifically, on April 13, 2001, Dr. Chandra Tokala wrote that

Warneka was experiencing almost daily migraines. Tr. at 805.

At that time, Warneka reported to Dr. Tokala that “any kind of

activity” exacerbated the pain of her migraines. Tr. at 805.

Furthermore, in 2011, Dr. Birgit Houston wrote, “I have taken

care of Trudy Warneka for many years. During the years 2000 and

2001, she suffered from frequent migraine headaches, which led

to frequent absenteeism from work for periods of time up to

several days. She has continued to have migraine headaches

since leaving her employment.” Tr. at 1273. In fact, in

finding her migraines to be severe, the ALJ noted that they

“caused more than mild work related limitations during the

period at issue.” Tr. at 20.

The Commissioner argues that regardless of any pre-DLI

evidence of Warneka’s migraines, there is limited evidence that

migraines continued to affect her ability to work through the

date of the hearing. The ALJ, however, made no finding with 11 respect to Warneka’s current conditions. Had the ALJ determined

that Warneka’s conditions (including her migraines) were not

disabling as of the hearing, he could have denied her claim on

that basis. See Rossiter v. Astrue,

(“When a

claimant suffering from a progressive impairment is not even

disabled by the time of the hearing, there is no reason for the

ALJ to consult a medical expert to decide whether the claimant

was disabled at some earlier point.”). Although there is

limited evidence of migraines affecting her current functioning,

there is ample evidence of other conditions that, in combination

with her migraines, significantly affect her current

functioning. Because the ALJ opted to bypass the issue of

present disability, however, SSR 83-20 required him to call on a

medical advisor.

To be sure, the record also contains evidence that

conflicts with Warneka’s contentions. See Tr. at 24 (citing Tr.

at 803, 908). It is precisely in this kind of situation,

however, where it is necessary for an ALJ to call on a medical

advisor to assist in reviewing ambiguous evidence. On remand,

the ALJ is free to conclude that Warneka is not entitled to

benefits, but only if he first (1) finds on the basis of

substantial evidence that she is not presently disabled, or (2) 12 relies on the opinion of a medical advisor to find that Wilson

was not disabled prior to her DLI.

IV. CONCLUSION

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

to affirm (Doc. No. 12) and grant Warneka’s motion to reverse

(Doc. No. 10). Pursuant to sentence four of

(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

March 31, 2015

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

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