WARE v. BARNHART

2004 | Cited 0 times | D. Maine | June 24, 2004

REPORT AND RECOMMENDED DECISION1

This Social Security Disability ("SSD") appeal raises thequestion whether the commissioner properly found that theplaintiff, who alleges that he has been disabled from workingsince August 1, 1989 by mild mental retardation and/or borderlineintellectual functioning, adjustment disorder with depressed moodand a learning disability, was not disabled as of September 30,1991, his date last insured. I recommend that the decision of thecommissioner be affirmed.

In accordance with the commissioner's sequential evaluationprocess, 20 C.F.R. § 404.1520, Goodermote v. Secretary of Health& Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), theadministrative law judge found, in relevant part, that the plaintiff hadacquired sufficient quarters of coverage to remain insured onlythrough September 30, 1991, Finding 1, Record at 14; that as ofhis date last insured he had no impairment that significantlylimited his ability to perform basic work-related functions andtherefore did not have a severe impairment, Finding 4, id.; andthat, therefore, he was not under a disability at any timethrough his date last insured, Finding 5, id. The AppealsCouncil declined to review the decision, id. at 4-6, making itthe final determination of the commissioner, 20 C.F.R. § 404.981;Dupuis v. Secretary of Health & Human Servs., 869 F.2d 622, 623(1st Cir. 1989).

The standard of review of the commissioner's decision iswhether the determination made is supported by substantialevidence. 42 U.S.C. § 405(g); Manso-Pizarro v. Secretary ofHealth & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In otherwords, the determination must be supported by such relevantevidence as a reasonable mind might accept as adequate to supportthe conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401(1971); Rodriguez v. Secretary of Health & Human Servs.,647 F.2d 218, 222 (1st Cir. 1981).

The administrative law judge reached Step 2 of the sequentialevaluation process. Although a claimant bears the burden of proofat this step, it is a de minimis burden, designed to do no morethan screen out groundless claims. McDonald v. Secretary ofHealth & Human Servs., 795 F.2d 1118, 1123 (1st Cir. 1986). Whena claimant produces evidence of an impairment, the commissionermay make a determination of non-disability at Step 2 only whenthe medical evidence "establishes only a slight abnormality orcombination of slight abnormalities which would have no more thana minimal effect on an individual's ability to work even if theindividual's age, education, or work experience were specificallyconsidered." Id. at 1124 (quoting Social Security Ruling85-28). The plaintiff, who has been determined to be disabled forpurposes of Supplemental Security Income ("SSI") benefits,complains that the administrative law judge failed to comply withSocial Security Ruling 83-20 ("SSR 83-20"), which requiresdetermination of the onset date of disability. See ItemizedStatement of Errors ("Statement of Errors") (Docket No. 9) at2-5. He argues, in addition, that the administrative law judge'sStep 2 finding of non-severity is unsupported by substantialevidence. See id. at 5-6. I find no reversible error.

I. Discussion

A. Failure To Comply With SSR 83-20

At the outset of his decision, the administrative law judgeacknowledged that the plaintiff was receiving SSI benefits "basedon a determination that he became disabled several years afterthe expiration of his insured status." Record at 11. Nonetheless,he did not cite or otherwise purport to apply SSR 83-20, whichprovides: In addition to determining that an individual is disabled, the decisionmaker must also establish the onset date of disability. In many claims, the onset date is critical; it may affect the period for which the individual can be paid and may even be determinative of whether the individual is entitled to or eligible for any benefits.SSR 83-20, reprinted in West's Social Security ReportingService Rulings 1983-1991, at 49.

A failure to apply SSR 83-20 is error; however, it has beenheld not to constitute reversible error if the rule's dictatesnonetheless are heeded. See, e.g., Field v. Shalal [sic], No.CIV. 93-289-B, 1994 WL 485781, at *3 (D.N.H. Aug. 30, 1994) ("TheALJ's failure to explicitly rely on SSR 83-20 does not by itselfrequire remand In this case, however, the ALJ's reasoning alsofails to comport with SSR 83-20's substantive requirements.")(citation omitted). In this case I find that those dictates werefollowed. SSR 83-20 contemplates the possibility that, to infer onsetdate, a process of inference may be necessary, providing: In some cases, it may be possible, based on the medical evidence to reasonably infer that the onset of 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. If there is information in the file indicating that additional medical evidence concerning onset is available, such evidence should be secured before inferences are made. If reasonable inferences about the progression of the impairment cannot be made on the basis of the evidence in file and additional relevant medical evidence is not available, it may be necessary to explore other sources of documentation. Information may be obtained from family members, friends, and former employers to ascertain why medical evidence is not available for the pertinent period and to furnish additional evidence regarding the course of the individual's condition. . . . The available medical evidence should be considered in view of the nature of the impairment (i.e., what medical presumptions can reasonably be made about the course of the condition). 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 SGA (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.Id. at 51-52.

While, as the plaintiff observes, see Statement of Errors at3, the administrative law judge never explicitly inferred anyonset date, he implicitly found that the onset date postdated thedate last insured, see Finding 4, Record at 14. Inasmuch as (i)that implicit finding was supported by substantial evidence, and(ii) the decision in other material respects comports with thedictates of SSR 83-20, no useful purpose would be served inremanding the case for purposes of fixing a precise onset date.

The court in Field held that the administrative law judgeflouted the requirements of SSR 83-20 in failing either to (i) assess whether the claimant's alleged onsetdate conflicted with other evidence of record or (ii) retain amedical advisor to assist him in inferring a reasonable onsetdate and determining whether that date was consistent with theclaimant's allegations. Field, 1994 WL 485781, at *3.

In this case, by contrast, the administrative law judge weighedwhether the medical and other evidence of record conflicted withthe alleged onset date. With respect to the medical evidence, heaccurately observed that:

1. In May 1986 — prior to the alleged onset date — theplaintiff was treated at the Augusta Mental Health Institute("AMHI") for what was assessed as a "brief" episode of adjustmentreaction, with no evidence of mental illness and no depressionnoted upon discharge. See Record at 12, 384, 386.2

2. There is no indication that the plaintiff required anyfurther mental-health treatment until 1999, when he experiencedacute symptoms of depression and psychosis after he abruptlyceased a longtime habit of marijuana use. See id. at 12-13,153, 321-22.

3. Medical records from the relevant period, when the plaintiffsought emergency-room treatment for various physical conditions,reveal no significant medical (or mental-health) condition. Seeid. at 13, 127-41.

4. Although a WAIS-III test administered in July 2001 indicatedthat the plaintiff's intellectual functioning was in theborderline to mentally retarded range, the psychologist whoadministered the test, Mary Alyce Burkhart, Ph.D., speculatedthat a lack of effort may have contributed to his low testscores. See id. at 13, 204-05. With respect to the non-medical evidence, the administrativelaw judge also accurately noted that the plaintiff had been ableto work for a number of years (prior to the alleged onset date)and independently raise two children (during and after therelevant period). See id. at 13, 28-29, 90. He supportablyfound these facts to argue against a conclusion that theplaintiff was mentally retarded prior to his date last insured.See id. at 13, 206, 222, 226.3

Finally, in contrast to the administrative law judge inField, the administrative law judge took the precaution ofcalling upon the services of a medical advisor, psychiatristUlrich B. Jacobsohn, M.D., at hearing for purposes ofascertaining whether the plaintiff was disabled by mentalimpairment(s) during the relevant period. See id. at 16, 33-38,73. As the administrative law judge pointed out, see id. at 13,Dr. Jacobsohn indicated there was insufficient evidence to permithim to form an opinion concerning the plaintiff's condition as ofSeptember 1991, see id. at 34-35, 37-38. In short, afterconsidering the factors identified as relevant in SSR 83-20 anddrawing upon the resources of a medical advisor as SSR 83-20advises, the administrative law judge determined (in essence)that the onset of the plaintiff's disabling mental impairment(s)postdated his date last insured. As noted above, that conclusionis well-supported by the evidence of Record.

One further point merits discussion. The plaintiff asserts thatalthough Dr. Jacobsohn "complained that the [1986 AMHI] recordwas incomplete," the administrative law judge failed to recess toobtain the missing records. Statement of Errors at 4. As counselfor the plaintiff suggested at oral argument, SSR 83-20 imposesan affirmative (and heightened) duty on an administrative lawjudge to obtain such additional medical evidence concerning onset date of disability as the fileindicates is available. See SSR 83-20, at 51. Counsel for thecommissioner conceded that the administrative law judge made noattempt to obtain the missing records.

Nonetheless, even assuming arguendo that the administrativelaw judge thereby erred, the First Circuit has signaled that aclaimant must make a showing of prejudice to warrant remand onthe basis of failure to develop the record. See Faria v.Commissioner of Soc. Sec., No. 97-2421, 1998 WL 1085810, at **1(1st Cir. Oct. 2, 1998) (affirming district court's denial ofSocial Security appeal in case in which claimant had not shownhow he was prejudiced by administrative law judge's failure tosecure treatment notes or ask further questions); see also,e.g., Nelson v. Apfel, 131 F.3d 1228, 1235 (7th Cir. 1997)(claimant who "fail[s] to point to any specific facts that werenot brought out during the hearing, and fail[s] to provide anynew medical evidence" has not shown prejudice; "Mere conjectureor speculation that additional evidence might have been obtainedin the case is insufficient to warrant a remand") (citation andinternal quotation marks omitted) (cited with favor in Faria).

In this case, the plaintiff falls short of making the requisiteshowing. His counselsuggested at oral argument that it isapparent from the face of the hearing transcript (specifically,Dr. Jacobsohn's remarks) that the AMHI records both exist andwould have made a material difference. Assuming arguendo thatthe records are indeed obtainable, I am unpersuaded that Dr.Jacobsohn's remarks demonstrate that their absence wasprejudicial. While Dr. Jacobsohn questioned the accuracy of the1986 AMHI diagnosis and observed that the Record contained onlythe discharge summary (omitting numerous pages of nursing andother notes), he did not state that the missing records werepivotal, would likely resolve his questions or would likely shed light on the date of onset. See Record at36-37. Indeed, he pointedly "complained" not about the missing1986 records but about the gap between the 1986 and the 1999episodes of treatment. See id. at 34-35 ("[I]t would be very,very difficult, and almost impossible to go to the bridge thatcovers the period [19]89 to [19]91, based on those twohospitalizations with no information of how he was functioning inbetween."). The plaintiff has not suggested that any additionalmedical records are available for that gap period.

In summary, while the administrative law judge's handling ofthe matter of onset date of disability is indeed flawed, I do notdiscern reversible error.

B. Step 2 Finding

The plaintiff next posits that the administrative law judgeerred in finding that he had failed to meet the de minimis Step2 burden of demonstrating that his mental impairments would havehad more than a minimal impact on his ability to work during therelevant period. See Statement of Errors at 5-6. I amunpersuaded.

As an initial matter, the plaintiff argues that theadministrative law judge wrongly characterized Dr. Jacobsohn ashaving concluded there was insufficient evidence to establish theexistence of mental illness. See id. The plaintiff asserts that"Dr. Jacobsohn's testimony, more fairly read, was that he couldnot form an opinion without additional records which he felt werereadily available." See id.

Dr. Jacobsohn did indeed suggest that he could not form anopinion without additional records; however, he never describedsuch records as "readily available." See Record at 34-35,37-38. In fact, he suggested that records for the period from the1986 to the 1999 hospitalizations (rather than the additionalrecords from the 1986 hospitalization) were pivotal. See id.Neither Dr. Jacobsohn nor anyone else has asserted that such records exist, let alone that they are readilyavailable.4

The plaintiff finally argues that the administrative law judgeerred in determining his intellectualfunctioning impairment tohave been non-severe as of his date last insured on the basis ofhis purported lack of effort on the WAIS-III test. SeeStatement of Errors at 6. As the plaintiff observes, see id.,Dr. Burkhart noted that "[e]ven if one assumes [the plaintiff's]intellectual potential is in the borderline range of intellectualfunctioning, he has limited intellectual strength to apply towork-related activities," see Record at 206, and at least oneDisability Determination Services ("DDS") non-examiningconsultant rated him as suffering moderate difficulties inmaintaining concentration, persistence and pace, see id. at350.

Nonetheless, substantial evidence supports the administrativelaw judge's finding that any intellectual-functioning impairmentwas non-severe as of the plaintiff's date last insured. Two DDSconsultants, David R. Houston, Ph.D., and Scott Hoch, Ph.D., wereasked to assess the plaintiff's mental impairments both currentlyand as of his date last insured. See id. at 44, 208, 340. Whileboth found that the plaintiff's mental impairments thenmoderately affected his ability to maintain concentration,persistence and pace, both concluded that there was insufficientevidence to assess the impact of the plaintiff's mentalimpairments as of his date last insured. See id. at 218, 221,350, 352.

What is more, the administrative law judge supportably foundthe WAIS-III scores inconsistent with the plaintiff's level offunctioning during the relevant time, including his ability toraise his two children independently. See id. at 13, 206, 222,226. In addition, although not mentioned by the administrativelaw judge, Dr. Jacobsohn testified at hearing that there was aprobability that the plaintiff's IQ had been affected by, anddeclined as a result of, the major mental illness he had sufferedin 1999. See id. at 39-40. The administrative law judge accordingly supportably found theplaintiff's mental impairments to have been non-severe as of hisdate last insured.

II. Conclusion

For the foregoing reasons, I recommend that the decision of thecommissioner be AFFIRMED.

1. This action is properly brought under 42 U.S.C. § 405(g).The commissioner has admitted that the plaintiff has exhaustedhis administrative remedies. The case is presented as a requestfor judicial review by this court pursuant to LocalRule 16.3(a)(2)(A), which requires the plaintiff to file an itemizedstatement of the specific errors upon which he seeks reversal ofthe commissioner's decision and to complete and file a fact sheetavailable at the Clerk's Office. Oral argument was held before meon June 21, 2004, pursuant to Local Rule 16.3(a)(2)(C) requiringthe parties to set forth at oral argument their respectivepositions with citations to relevant statutes, regulations, caseauthority and page references to the administrative record.

2. The Record indicates that the plaintiff was treated at AMHIfrom May 5-26, 1986, shortly after his girlfriend moved out oftheir home, taking their infant daughter with her. See Recordat 380-81, 384. His discharge diagnoses were adjustment disorderwith depressed mood and substance abuse, mixed. See id. at381.

3. In his Statement of Errors, the plaintiff complains that"whether [he] suffered from mild mental retardation or borderlineintellectual functioning, neither is addressed in the Decision,nor at all seemingly considered in the question of the onset ofdisability." Statement of Errors at 5. This is not a faircharacterization of the decision, which, as discussed above,addressed the WAIS-III scores but supportably discounted theirvalidity.

4. Nor, for that matter, did Dr. Jacobsohn indicate that themissing 1986 AMHI records were readily available. See Record at37.

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