UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Stephanie Amaral

v. Civil No. 15-cv-359-JD Opinion No.

Carolyn W. Colvin, Acting Commissioner Social Security Administration

O R D E R

Stephanie Amaral seeks judicial review, pursuant to

(g), of the decision of the Acting Commissioner of

the Social Security Administration, denying her application for

social security disability benefits after Amaral was awarded

supplemental security income. Amaral moves to reverse and

remand the decision, contending that the Administrative Law

Judge (“ALJ”) erred in failing to call a medical expert to

determine Amaral’s disability onset date, erred in the weight

given to her treating physician’s opinion, erred in evaluating

her mental health impairments, and erred in assessing Amaral’s

residual functional capacity. The Acting Secretary moves to

affirm.

Standard of Review

In reviewing the final decision of the Acting Commissioner

in a social security case, the court “is limited to determining whether the ALJ deployed the proper legal standards and found

facts upon the proper quantum of evidence.” Nguyen v. Chater,

(1st Cir. 1999); accord Seavey v. Barnhart,

(1st Cir. 2001). The court defers to the ALJ’s

factual findings as long as they are supported by substantial

evidence. § 405(g). “Substantial evidence is more than a

scintilla. It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Astralis

Condo. Ass’n v. Sec’y Dep’t of Housing & Urban Dev.,

(1st Cir. 2010).

Background

Amaral applied for supplemental security income (“SSI”),

under Title XVI, and disability insurance benefits (“DIB”),

under Title II, on September 9, 2012, when she was fifty-two

years old. For purposes of SSI, she was determined to be

disabled because of anxiety related disorders and affective/mood

disorders beginning on June 1, 2012, but she was not awarded SSI

because she had too much income. For purposes of DIB, the

agency concluded that she had not been disabled through her last

insured date on December 31, 2008.

The administrative record of medical treatment begins in

2004 when Amaral required a physical and mental examination for

purposes of her application to be a foster care provider. The

2 results were normal. In June of 2005, Amaral was treated at a

hospital emergency department for symptoms she associated with

anxiety but a CT scan revealed pulmonary emboli in her lungs.

She was admitted to the hospital and was prescribed

anticoagulant medication.

Just after she was released from the hospital, on June 13,

2005, Amaral saw her treating physician, Dr. Badman, and

reported having difficulty with anxiety. A week later, Amaral

told Dr. Badman that she continued to have anxiety but her

medication was very beneficial. Ten days later, however, Amaral

again experienced breakthrough anxiety and began counselling.

In July of 2005, Dr. Badman explained to Amaral that

anxiety medication was not a long-term solution and discussed

alternatives. Amaral reported a panic attack to Dr. Badman on

July 21, 2005, and he told her to stop the new medication.

Through the remainder of 2005, Dr. Badman’s treatment notes show

that Amaral was diagnosed with anxiety disorder but that she was

doing well on her medication.

The treatment notes in 2006 generally show diagnoses of

anxiety disorder and depression. In September, Dr. Badman noted

that Amaral’s anxiety was stable. In 2007, Amaral reported

during a neurological examination that she had had severe

depression and anxiety but also said that her medication had

3 done a good job of taking care of her anxiety. Treatment notes

in 2008 are similar and include one report that Amaral felt she

was always on the verge of anxiety decompensation.

Two state agency medical experts reviewed Amaral’s records

in December of 2012. They found insufficient evidence to assess

her condition before December 31, 2008, her last insured date.

In February of 2014, Jeffrey Wagner, Ph.D. conducted a

psychological evaluation of Amaral. He completed a Mental

Impairment Medical Source Statement in which he assessed panic

disorder, agoraphobia, major depression, attention deficit

disorder, and generalized anxiety. Dr. Wagner found that Amaral

was seriously limited in all mental aptitudes and abilities to

do unskilled work. He also found marked limitations in Amaral’s

activities of daily living, social functioning, and

concentration, persistence, and pace. Dr. Wagner checked a box

to show that Amaral’s impairments had existed since September of

2003.

Dr. Badman completed a Physical Impairment Medical Source

Statement on February 7, 2014. He indicated diagnoses of

anxiety, GERD, TMJ syndrome, lower back pain/degenerative disc

disorder, and DVT/pulmonary embolism. Dr. Badman also indicated

that Amaral’s limitations had existed since 2005 and would

frequently interfere with her attention and concentration. He

4 found that she could not do even a low stress job and was likely

to be absent more than four days per month.

In 2012, Amaral stated in her function report that she was

overwhelmed by tasks outside of her house and that her panic

attacks frequently caused her to seek care. She said that she

took care of her children with help from her mother. She also

said that she slept little and felt exhausted but that she could

take care of household cleaning and pets, attend to

appointments, shop, and drive during daylight hours.

A hearing before an ALJ was held on Amaral’s application on

February 28, 2014. Amaral testified that she started having

severe panic attacks in 2006. After a near accident, she only

drove short distances on back roads. Amaral and her husband and

mother started caring for foster children in 2004 and sometimes

had six children in the home. She adopted three of the foster

children and stopped taking foster children in 2011.

The ALJ issued her decision on March 27, 2014, finding that

Amaral had not been disabled before her last insured date,

December 31, 2008, and that jobs existed that Amaral could do.

Amaral sought review by the Appeals Council, which was denied,

making the ALJ’s decision the final decision of the Acting

Commissioner.

5 Discussion

In support of her motion to reverse and remand the Acting

Commissioner’s decision, Amaral contends that the ALJ was

required by Social Security Ruling (“SSR”) 83-20 to consult with

a medical expert, that the ALJ improperly assessed Dr. Badman’s

opinion, that the ALJ relied on her lay knowledge in assessing

Amaral’s residual functional capacity, and that the ALJ did not

follow the Psychiatric Review Technique required by

.1520a(e). The Acting Commissioner moves to affirm,

arguing that the ALJ properly found that Amaral was not disabled

before December 31, 2008.

A. Medical Expert Consultation

To be eligible for DIB, a claimant must demonstrate, among

other things, that she was insured for disability benefits when

she became disabled.

(a). For that reason, a

claimant must have been disabled on or before her last insured

date to qualify for DIB. Hughes v. Colvin,

, at

*1 (D. Me. Jan. 19, 2016). SSI, however, is not dependent on

the claimant’s insured status. Lennon v. Colvin,

, at *3 n.2 (D.N.H. Aug. 4, 2015).

SSR 83–20, Titles II and XVI: Onset of Disability,

, *3 (S.S.A. 1983), provides that the determination of the

onset date of disabling impairments “depends on an informed

6 judgment of the facts in the particular case. This judgment,

however, must have a legitimate medical basis.” As a result, an

ALJ must consult a medical advisor when the medical evidence as

to the claimant’s onset date is ambiguous. Sullivan v. Colvin,

, at *1 (D.N.H. Mar. 11, 2015).

Amaral contends that because she was found to be disabled

as of September 9, 2012, for purposes of SSI, the onset date of

her disability is ambiguous and the ALJ was required under SSR

83-20 to consult a medical advisor to make that determination.

The Acting Commissioner argues that SSR 83-20 does not apply

because the medical evidence before December 31, 2008, Amaral’s

last insured date, is not ambiguous. Instead, the Acting

Commissioner asserts, the contemporaneous medical evidence shows

that Amaral was not disabled by anxiety or affective disorders

before her last insured date.

“[A]n ALJ need not consult a medical advisor if the record

provides unambiguous evidence that the claimant did not become

disabled as of the date last insured.” Fischer v. Colvin,

, at *6 (D.N.H. Oct. 30, 2014). Evidence is

unambiguous, however, “only if ‘no legitimate basis [in the

record] can support an inference of disability’ as of the date

last insured.”

(quoting Mason v. Apfel,

(D. Mass. 1998)). Otherwise, an ALJ must consult a medical

7 advisor to determine whether a claimant was disabled as of her

last insured date. Fischer,

, at *6.

Amaral’s medical records prior to her last insured date,

December 31, 2008, document diagnoses for anxiety and depression

and ongoing issues related to anxiety and depression. Dr.

Badman, who treated Amaral since at least 2005 and continued to

treat her through the time of the hearing, stated that Amaral’s

disabling limitations due to anxiety and depression had existed

since 2005. Further, the two agency doctors who reviewed

Amaral’s records in 2012 concluded that the medical records

prior to December 31, 2008, were insufficient to determine

whether she was disabled. As such, the record is ambiguous as

to whether Amaral was disabled before her last insured date.

Although the ALJ interpreted those records to show that

Amaral was not disabled prior to December 31, 2008, that was not

allowed under SSR 83-20. Instead, the ALJ was required to

consult a medical advisor to determine the onset date of

Amaral’s disability. Therefore, the case must be remanded for

further administrative proceedings.

B. Remaining Issues

Because the case will be remanded, it is not necessary to

address the issues Amaral raises about the ALJ’s evaluation of

8 Dr. Badman’s opinion, the residual functional capacity

assessment, or the ALJ’s Psychiatric Review Technique.

Conclusion

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

and remand (document no. 9) is granted. The Acting

Commissioner’s motion to affirm (document no. 10) is denied.

The case is remanded pursuant to Sentence Four of § 405(g).

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

April 4, 2015

cc: Laurie Smith Young, Esq. Michael T. McCormack, Esq.

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