UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Bruce T. Carleton

v. Case No. 15-cv-259-PB Opinion No.

Carolyn W. Colvin, Acting Commissioner, U.S. Social Security Administration

MEMORANDUM AND ORDER

Bruce Carleton challenges the Social Security

Administration’s denial of his claim for Disability Insurance

Benefits (“DIB”). The Acting Commissioner, in turn, moves for

an order affirming the decision. Because the ALJ ignored the

requirements of SSR 83-20 and failed to call a medical advisor

to determine the onset date of Carleton’s disability, I

determine that his decision was not supported by substantial

evidence. As a result, I grant Carleton’s motion and remand the

case to the Commissioner for further proceedings consistent with

this Memorandum and Order.

I. BACKGROUND

In accordance with Local Rule 9.1, the parties have

submitted a joint statement of stipulated facts (Doc. No. 11).

See LR 9.1. Because that joint statement is part of the court’s record, I need not recount it here. I discuss facts relevant to

the disposition of this matter as necessary below.

II. STANDARD OF REVIEW

Under

(g), I have the authority to review

the pleadings submitted by the parties and the administrative

record, and to enter a judgment affirming, modifying, or

reversing the “final decision” of the Commissioner. That review

is limited, however, “to determining whether the [Administrative

Law Judge] 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). I defer to the

Administrative Law Judge’s (ALJ’s) findings of fact, so long as

those findings are supported by substantial evidence.

Substantial evidence 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, the ALJ’s

factual findings are conclusive, even where the record “arguably

could support a different conclusion.” Id. at 770. Findings

2 are not conclusive, however, if the ALJ derived his findings 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

Bruce T. Carleton is a former laborer, pipefitter, power

washer, boiler worker, and working foreman. Doc. No. 11 at 2.

He was 48 years old on December 31, 2005, his date last insured.

Carleton filed for DIB on August 13, 2012, claiming

disability as of June 15, 2003. Id. at 1. The Social Security

Administration denied his application, and in January 2014 a

hearing was held before ALJ Jonathan Baird. Id. Following that

hearing, the ALJ issued a written decision denying Carleton’s

application. Tr. at 68-76 (ALJ’s written decision).

The ALJ based his ruling on a determination that Carleton

was not disabled prior to his date last insured, but made no

finding of present disability. To arrive at this conclusion,

the ALJ employed the familiar five-step analysis described in

. At step one, he found that Carleton had not 3 engaged in substantial gainful activity between June 15, 2003,

his alleged onset date, and December 31, 2005, his date last

insured. Tr. at 70. At step two, the ALJ determined that

Carleton suffered from “degenerative disc disease with

associated right leg symptoms,” through his date last insured.

Tr. at 70. The ALJ further noted that Carleton’s condition was

a “severe impairment,” but at step three determined that the

impairment did not meet or medically equal any of those listed

in the relevant regulations. Tr. at 70-71. The ALJ then

decided that Carleton retained the Residual Functional Capacity

(“RFC”) to perform light work with certain restrictions, such as

only occasionally climbing ramps or stairs and avoiding

concentrated exposure to excessive vibration. Tr. at 71. Based

on this RFC, the ALJ found at step four that Carleton could not

perform his past relevant work. Tr. at 74. Lastly, at step

five, the ALJ consulted a vocational expert and concluded that

Carleton could find work in the national economy as a price

marker, order caller, or ticket seller, despite his limitations.

Tr. at 75. The ALJ therefore concluded that Carleton was not

disabled as of his date last insured. Tr. at 76.

Carleton requested review of the ALJ’s decision, but in May

2015 the Appeals Council denied his request. Tr. at 1-4. As a

result, the ALJ’s decision constitutes the Commission’s final

decision, and this case is now ripe for review.

4 Carleton makes four general arguments challenging the ALJ’s

decision. First, Carleton argues that the ALJ ignored medical

evidence in his file that supported his claim. Second, he

claims that the ALJ wrongly concluded that his testimony at the

hearing was not credible. Third, he criticizes various aspects

of the ALJ’s instructions to the vocational expert, who

testified that Carleton could perform certain jobs in the

national economy despite his limitations. And fourth, Carleton

argues that the ALJ violated Social Security Ruling 83-20 by

failing to consult a medical advisor to determine the onset date

of Carleton’s disability. Carleton’s fourth argument is

persuasive, and requires a remand here.

In alleging that the ALJ ignored SSR 83-20, Carleton

fashions what is now a well-worn argument in this court. As I

ruled previously in Ryan v. Astrue,

, Wilson v.

Colvin,

(D.N.H. 2014), Fischer v. Colvin,

, and Warneka v. Colvin,

, SSR 83-20

“ordinarily requires the ALJ to consult a medical advisor before

concluding that a claimant was not disabled as of [his] date

last insured.”1 Fischer,

; see SSR 83–20, 1983

1 As the Commissioner notes, the First Circuit is currently considering an appeal from Fischer. See Fischer,

, appeal docketed, No. 15-1041 (1st Cir. Jan. 8, 2015). As of the date of this order, however, the First Circuit has not handed down its ruling. Accordingly, I continue to apply SSR 83-20 as

(Jan. 1, 1983). Because the ALJ failed to do so here,

his finding was not supported by substantial evidence, and a

remand is warranted.

I begin with the familiar framework of SSR 83-20. SSR 83–

20 guides the determination of a disability's onset date.

Warneka,

. To establish when a disability began,

the Ruling breaks disabilities into two general categories:

those of “traumatic origin” and those of “nontraumatic origin.”

See SSR 83–20,

, at *1-*2. For disabilities of

traumatic origin – like, say, emotional shock from a car

accident – the onset date is generally uncomplicated: it occurs

“the day of the injury.” Id. at *2. For nontraumatic origin

disabilities – like, say, a slowly-progressing form of anxiety –

the “determination of onset involves consideration of the

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

and other evidence concerning impairment severity.” Id.

Moreover, with “slowly progressive impairments,” the Ruling

notes that

it is sometimes impossible to obtain medical evidence establishing the precise date an impairment became disabling. Determining the proper onset date is particularly difficult, when, for example, the alleged onset and the date last worked are far in the past and adequate medical records are not available. In such cases,

I and my colleagues have in the past unless and until the First Circuit instructs otherwise.

6 it will be necessary to infer the onset date from the medical and other evidence. . .

Id.

Where “precise evidence” of onset is unavailable, SSR 83-20

ordinarily requires ALJs to call a medical advisor to infer the

correct date. Id. at *3. In other words, if the evidence of

onset is “ambiguous,” the ALJ must generally call a medical

advisor. May v. Soc. Sec. Admin. Com'r,

(1st Cir.

1997)(per curiam)(unpublished table decision); see also

Grebenick v. Chater,

, 1200–1201 (8th Cir. 1997)

(“If the medical evidence is ambiguous and a retroactive

inference is necessary, SSR 83–20 requires the ALJ to call upon

the services of a medical advisor. . . .”); Spellman v. Shalala,

(5th Cir. 1993) (same).

Here, the ALJ declined to call a medical advisor to infer

Carleton’s onset date. The Commissioner defends this decision

by making two primary arguments. First, she disagrees with my

reading of SSR 83-20 and argues that a medical advisor must only

be called if “a claimant has been found presently disabled, and

the onset date of the disability cannot be determined without

drawing inferences from medical evidence.” Doc. No. 9-1 at 8.

And second, she contends that even if SSR 83-20 applies, the

record here contains unambiguous evidence showing that Carleton

was not disabled prior to his date last insured.

7 I reject the Commissioner’s first argument for the same

reasons that I explained in Ryan. As I held there, the ALJ must

still call a medical advisor to infer onset when, as in this

case, he does not determine whether the claimant is presently

disabled. See Ryan,

. To hold otherwise

would allow ALJs to avoid calling a medical advisor by

sidestepping the question of present disability – which, in my

view, violates the policy behind SSR 83-20. See

(discussing

the policy underpinning SSR 83-20).

The Commissioner’s second argument fails because the

medical evidence of Carleton’s disability was ambiguous. In

Fischer, I noted that “even a record that furnishes only weak

support for a claim remains ambiguous.” Fischer,

. Thus, if a record supports “any legitimate inference of

disability prior to the date last insured,” it “requires

consultation with a medical advisor.”

The evidence here was sufficient to meet this low bar.

Carleton alleges that onset occurred on June 16, 2003, over a

decade ago. As the ALJ notes, however, “there is remarkably

little evidence available prior to the claimant’s date last

insured of December 31, 2005.” Tr. at 72. “In fact,” he wrote,

“there only appears to be two pieces of evidence total from

prior to the date last insured.” Tr. at 72. Nonetheless,

although these treatment notes do not explicitly record a date

8 of onset, they do establish that Carleton had serious disc and

back problems. A June 2003 treatment note, for instance,

indicates that Carleton suffered from an “annular tear with

moderate disc bulge” that produced “persistent radicular leg

pain [in] both legs.” Tr. at 696. Carleton’s March 2005

“progress note” indicated that he had suffered a “back injury”

two years ago. Tr. at 824. These findings, at minimum, support

a “legitimate inference of disability prior to the date last

insured.” Fischer,

, 19.

Moreover, the ALJ’s own decision reveals that the evidence

prior to December 31, 2005 was ambiguous. The ALJ notes that

only two pieces of evidence existed from 2003 to 2005, but

nonetheless concludes that “the limitations described in

[Carleton’s] residual functional capacity were reasonably

present prior to the date last insured.” Tr. at 72 (emphasis

added). Later, the ALJ states that “[t]here is little evidence

from prior to the claimant’s date last insured to support a

finding of disability,” Tr. at 73, but “there is nonetheless

sufficient evidence to warrant a finding of medically

determinable severe impairments.” Tr. at 74. While these

findings do not, of course, conclusively establish that Carleton

was disabled prior to his date last insured, they do show that

there was sufficient evidence of his disability that the ALJ

should have called a medical advisor to infer a date of onset.

9 SSR 83-20 explicitly addresses cases like these.

“Determining the proper onset date is particularly difficult,”

the Ruling notes, “when . . . the alleged onset and the date

last worked are far in the past and adequate medical records are

not available.” See SSR 83–20,

, at *2. This is

such a case. The alleged onset date and the date last worked

were both more than a decade before the ALJ’s hearing. As a

result, the ALJ should have followed the dictates of 83-20 and

called a medical advisor to infer the date of onset. The ALJ’s

failure to do so was erroneous and necessitates a remand.

IV. CONCLUSION

Carleton’s motion to reverse the decision of the

Commissioner (Doc. No. 6) is granted. The Commissioner’s motion

to affirm (Doc. No. 9) is denied. 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 April 29, 2016

cc: Christine Woodman Casa, Esq. Michael T. McCormack, Esq.

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