UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Nancy Keith McFall

v. Case No. 15-cv-160-PB Opinion No.

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

MEMORANDUM AND ORDER

In June 2012, Nancy Keith McFall applied for disability

insurance benefits (“DIB”), alleging disability as of April 30,

1989. The SSA initially denied McFall’s claim in August 2012,

and denied her claim again upon reconsideration in November

2012. Thereafter, a hearing was held before an Administrative

Law Judge (“ALJ”), where McFall, represented by counsel,

appeared and testified. The ALJ then issued a written decision

finding that McFall had failed to show that she suffered from a

severe impairment before her March 31, 1997 date last insured,

or through the date of the ALJ’s decision. The ALJ therefore

concluded that McFall was not disabled. McFall now challenges

the Social Security Administration’s decision to deny her claim.

The Social Security Commissioner, in turn, seeks to have the

ruling affirmed. I. BACKGROUND

A. Medical Evidence and Hearing Testimony

McFall applied for DIB on June 15, 2012, alleging

disability as of April 30, 1989. Tr. at 19 (Doc. No. 7).

McFall last met the Social Security Act’s insured status

requirement on March 31, 1997, and there are no medical records

predating her March 31, 1997 date last insured (“DLI”). Rather,

the first treatment notes in the record were from June 1997

(several months after her DLI), when McFall was admitted to

Pembroke Hospital due to bipolar affective disorders,

psychiatric disorders not otherwise specified, polysubstance

abuse, increased anxiety, difficulty sleeping and suicidal

ideation. Tr. at 22, 161, 164. Before that admission, McFall

had undergone no psychiatric treatment. Tr. at 161.

At the hospital, McFall reported that she had suffered a

head injury as a teenager, and that, for several years before

June 1997, she had engaged in substance abuse and experienced

paranoid ideation. Tr. at 159. McFall was diagnosed with

bipolar disorder and polysubstance abuse and placed on a

fourteen-day treatment plan. Tr. at 159, 162. Upon discharge,

she was described as alert, partially cooperative, with

continued paranoid ideas, irritable mood, and fair judgment.

Tr. at 159. McFall was referred to Northeast Psychological

2 Associates for further treatment, but there are no records

indicating that she followed through with that referral. Tr. at

22, 159-60.

At her October 13, 2013 hearing before the ALJ, McFall

described the circumstances surrounding her June 1997 treatment

at Pembroke Hospital. She testified that she had had problems

sleeping since she was involved in a car accident as a teenager,

and continued to have problems sleeping as of the date of her

hearing. Tr. at 39-41. She stated that she was diagnosed with

bipolar disorder in 1997 (presumably at Pembroke Hospital), and

testified that the condition significantly affected her ability

to function on a daily basis. Tr. at 53. She also told the ALJ

that, at around that same time she was hospitalized, she had

increased her alcohol consumption. Tr. at 53. When asked about

the suicidal ideations, depression and anxiety mentioned in the

Pembroke Hospital notes, McFall said that she “went through that

for a short period,” and that she “couldn’t do anything” while

affected. Tr. at 54.

Based on the evidence before the ALJ, there were no

additional treatment records until May 2012, about one month

before McFall applied for DIB.1 In May 2012, McFall sought

1 After the ALJ issued his decision, McFall submitted additional records to the Appeals Council. Those records suggested that, from approximately September 2008 until 2012, McFall underwent treatment with APRN Mary Warren in Nashua, New Hampshire. Tr. 3 treatment for abdominal swelling and discomfort and chronic

diarrhea. Tr. at 258. McFall was diagnosed with hepatic

failure due to alcohol use. Tr. 263. In July 2012, McFall was

again treated for abdominal pain and distention. Tr. 252-53.

At her October 2013 hearing, McFall testified that these

abdominal symptoms have since been resolved, and stated that she

no longer drinks alcohol. Tr. at 35, 50.

B. ALJ’s Decision

In his decision, the ALJ evaluated McFall’s claim under the

five step sequential process described in 20 C.F.R. §

at 61-64. According to APRN Warren’s notes, McFall had ongoing sleep problems, was taking antipsychotic medications, rarely left her home, and was struggling with weight gain. Tr. at 61- 64. In its letter denying McFall’s request for review, the Appeals Council noted that it had “looked at medical records from Mary H. Warren, APRN,” but nonetheless denied McFall’s request. Tr. at 2.

In reviewing the Commissioner’s decision, I am limited to considering the evidence that was submitted to the ALJ. See Mills v. Apfel,

(1st Cir. 2001). When a claimant submits evidence in the first instance to the Appeals Council, and the Appeals Council denies the claimant’s request for review, I may reverse that decision only if the Council gave “an egregiously mistaken ground for this action.”

“Alternatively, the court may remand a case for further consideration if material new evidence is submitted and the party introducing the evidence shows good cause for failing to present that evidence to the ALJ.” Larocque v. Barnhart,

(D.N.H. 2006). In this case, McFall, represented by counsel, does not mention APRN Warren’s notes, let alone assert that the Appeals Council committed an “egregious” error in denying her request for review. Likewise, she does not argue that there was good cause for her failure to present APRN Warren’s treatment notes to the ALJ. I therefore do not consider APRN Warren’s notes here. 4 404.1520(a)(4). At step one, the ALJ found that McFall had not

engaged in substantial gainful activity during the period from

her alleged onset date through her DLI. Tr. at 21. The ALJ

then resolved the case at step two, determining that McFall had

not established that she suffered from a severe medically

determinable impairment at any time from her alleged onset date

through her DLI.

To support this conclusion, the ALJ explained that McFall

had “experienced an acute episode in June 1997,” at which time

she “had medically determinable impairments that could

reasonably produce work-related functional limitations.” Tr. at

23. The ALJ also noted that, in June 1997, McFall described

“symptoms of paranoia and substance abuse dating back one to two

years” and “being unable to work for the previous three years.”

Tr. at 22. The ALJ concluded, however, that this evidence was

inadequate to establish a medically determinable impairment

because “there is no evidence to support this degree of

symptomology or limitations prior to the date last insured,” and

because the record contained no evidence of follow-up treatment

after McFall’s hospitalization. Tr. at 23. According to the

ALJ, that lack of follow-up “suggests that [McFall’s] symptoms

had largely resolved.” Tr. at 23.

With respect to McFall’s history of substance abuse, the

ALJ noted that McFall “did admit that she was abusing substances

5 during the period of her hospitalization in June 1997, as well

as subsequently,” and that she was diagnosed with alcoholic

hepatitis and portal hypertension in June 2012. Tr. at 23. The

ALJ thus found “sufficient support in the limited evidence of

record that [McFall] does have some issues with substance

abuse.” Tr. at 23. Nonetheless, in light of the limited record

evidence, and the absence of “evidence documenting higher

functioning absent substance abuse and a significant

deterioration with such abuse,” the ALJ concluded that there was

insufficient support to find that McFall’s alcohol abuse was

material to the finding of disability, “or that it produces any

specific work-related functional limitations throughout the

period under review.” Tr. at 23.

The ALJ further concluded that, even if there was

sufficient evidence that McFall was disabled before her DLI,

McFall’s claim nonetheless failed because McFall did not “have

disability continuing to the present date or ending within the

12-month period in which she applied,” as required by

. Tr. at 23. According to the ALJ, “the record

contains no evidence whatsoever for fifteen years prior to the

application date. Even as of the application date, the record

contains only a few brief notes from May 2012 to July 2012,

which fail to support any specific work-related functional

6 limitations.” Tr. at 23. The ALJ was therefore “unable to find

[McFall] disabled.” Tr. at 23.

In January 2014, McFall asked the Appeals Council to review

the ALJ’s decision. Tr. at 12-15. The Appeals Council denied

McFall’s request. Tr. at 1-4. As such, the ALJ’s decision

constitutes the Commissioner’s final decision, and this matter

is now ripe for judicial review.

II. STANDARD OF REVIEW

Pursuant to

(g), I have the authority to

review the administrative record and the pleadings submitted by

the parties, 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

7 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

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

Here, McFall challenges the ALJ’s conclusion that she

produced insufficient evidence that she suffered from a severe

impairment before her DLI. She contends that her 1997 Pembroke

Hospital records, coupled with her testimony before the ALJ,

satisfied her burden. The Commissioner counters that

substantial evidence supports the ALJ’s conclusion that McFall

did not have such an impairment. The Commissioner further

argues that the ALJ properly concluded that McFall failed to

establish that she was disabled when she applied for DIB, or

8 suffered from a disability that ended within a twelve-month

period before she applied. McFall does not specifically address

the ALJ’s alternative basis for finding that McFall was not

disabled. For the reasons set forth below, I conclude that the

ALJ permissibly found that McFall did not suffer from a severe

impairment before her DLI.

At step two of the five-step evaluation process, the

claimant bears the burden of proving “that [s]he has a medically

severe impairment or combination of impairments.”2 Bowen v.

Yuckert,

, 146 n.5 (1987). An impairment, or

combination of impairments, is severe if it “significantly

limits [the claimant’s] physical or mental ability to do basic

work activities” and “lasted or [is] expected to last for a

continuous period of at least 12 months.”

(c); 404.1509. To establish the requisite

impairment(s), “there must be medical signs and laboratory

findings.”

(a). Thus, “[n]o symptom or

combination of symptoms can be the basis for a finding of

disability, no matter how genuine the individual's complaints

may appear to be, unless there are medical signs and laboratory

2Although the claimant bears the burden of proving that she suffers from a severe impairment, the First Circuit has explained that “the step two severity requirement is intended to do no more than screen out groundless claims.” May v. Soc. Sec. Admin. Comm’r,

, at *1 (1st Cir. 1997) (Table) (citation and internal punctuation omitted). 9 findings demonstrating the existence of a medically determinable

physical or mental impairment.” SSR 96-4p,

(1996).

Moreover, a claimant is not entitled “to disability

benefits unless [s]he can demonstrate that h[er] disability

existed prior to the expiration of h[er] insured status.” Cruz

Rivera v. Sec’y of Health and Human Servs.,

(1st

Cir. 1986); see

(a). It is not enough “for a

claimant to establish that her impairment had its roots before

the date that her insured status expired.” Moret Rivera v.

Sec’y Health & Human Servs.,

(1st Cir. 1994)

(Table). Instead, “the claimant must show that her

impairment(s) reached a disabling level of severity” before her

DLI.

An ALJ may, however, consider medical evidence

generated after a claimant’s DLI “for what light (if any) it

sheds on the question whether claimant’s impairment(s) reached

disability severity before claimant’s insured status expired.”3

(emphasis in original).

3Although not raised by the parties, I note as an initial matter that SSR 83-20 does not require a remand here. As interpreted in this district, “SSR 83-20 ordinarily requires the ALJ to consult a medical advisor before concluding that a claimant was not disabled as of her date last insured.” Fischer v. Colvin,

. That general rule does not apply, however, in cases where the ALJ expressly finds that the claimant is not presently disabled. Lennon v. Colvin,

; Wilson v. Colvin,

(D.N.H. 2014). Here, the ALJ supportably found that McFall “was not under a disability . 10 In this case, substantial evidence supports the ALJ’s

conclusion that McFall failed to show that was disabled before

her DLI. First, as the ALJ noted, McFall did not produce any

medical records or other evidence predating her March 31, 1997

DLI. Tr. at 22. Second, the ALJ addressed McFall’s post-DLI

records in detail, considering “what light (if any),” Moret

Rivera,

, they shed on the severity of her

pre-DLI impairments. Tr. at 22-23. As the ALJ explained, those

records indicated that McFall (1) experienced an acute episode

several months after her DLI, (2) described certain symptoms

pre-dating her DLI, and (3) had some substance abuse issues.

Tr. at 22-23. Yet, McFall presented no evidence to show that

she experienced the “degree of symptomology or limitations

[exhibited in June 1997] prior to the date last insured.” Tr.

at 23. Indeed, the records indicate that McFall had not

undergone any psychiatric treatment before her post-DLI

hospitalization, Tr. at 161; and, when asked about the suicidal

ideations, depression and anxiety mentioned in the Pembroke

Hospital notes, McFall testified that she “went through that for

. . at any time from April 30, 1989 [McFall’s alleged onset date] . . . through the date of this decision.” Tr. at 24. McFall does not challenge this conclusion. See Doc. No. 8-1 at 4. Thus, because the ALJ found that McFall was not presently disabled, there was no need to consult a medical advisor to determine a nonexistent onset date. See Lennon,

. 11 a short period.” Tr. at 54 (emphasis added). Third, the record

before the ALJ did not include any evidence that McFall sought

follow-up treatment after her 1997 hospitalization, or any

additional care until 2012. See Tr. at 22. This apparent

fifteen year gap in treatment was itself evidence that McFall

did not suffer from a severe impairment.4 See Moret Rivera,

(“A gap in the medical evidence may itself be

evidence that claimant's condition was not as dire as

alleged.”); Irlanda Ortiz,

(same). And fourth,

McFall presented no additional evidence – for instance, an

expert medical opinion – addressing whether her impairments were

“severe” before her DLI.

In sum, it was McFall’s burden to show that she suffered

from a severe impairment, or combination of impairments, before

March 31, 1997. Although that burden is not particularly

onerous, see May,

, at *1, it nonetheless required

McFall to present “medical signs and laboratory findings” to

support her claim.

(a). Yet, she produced

no records predating her DLI, no records covering the

approximately fifteen-year period after her DLI, and no opinion

4Again, as explained in greater detail in note 1, supra, the records that McFall later submitted to the Appeals Council indicate that she did, in fact, receive medical treatment between 1997 and 2012. Yet, because McFall (represented by counsel) failed to submit that evidence to the ALJ, and under the facts of this case, I may not consider those records here. 12 evidence regarding the severity of her impairments before her

DLI. The ALJ considered the limited evidence before him, and

supplied a thorough explanation for why it was insufficient.

Given that history, and under the facts of this case, the ALJ

did not err in concluding that McFall failed to establish that

her impairments “reached a disabling level of severity” before

her DLI. Moret Rivera,

. I therefore

affirm.

IV. CONCLUSION

For the foregoing reasons, I grant the Commissioner’s

motion to affirm (Doc. No. 10), and deny McFall’s motion to

reverse (Doc. No. 9). The clerk is directed to enter judgment

accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge March 9, 2016

cc: John A. Wolkowski, Esq. Terry Ollila, Esq.

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