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Moreau v. Colvin

United States District Court, D. Maine

April 14, 2015

ARTHUR MOREAU, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

MEMORANDUM DECISION [1]

JOHN H. RICH, III, Magistrate Judge.

This Social Security Disability ("SSD") appeal raises the question of whether the administrative law judge supportably found the plaintiff capable of performing work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that the administrative law judge erred in failing to apply Social Security Ruling 83-20 ("SSR 83-20") to determine the onset date of his disability and in relying on flawed jobs testimony given by a vocational expert. See Plaintiff's Itemized Statement of Errors ("Statement of Errors") (ECF No. 12) at 4-21. I find no reversible error and, accordingly, affirm the commissioner's decision.[2]

Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 404.1520; Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the administrative law judge found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act through March 30, 2009, Finding 1, Record at 13; that, through his date last insured, he had severe impairments of chronic pain syndrome in his upper extremities, degenerative disc disease in his cervical spine, and diminished vision in his right eye, Finding 3, id.; that, through his date last insured, he had the residual functional capacity ("RFC") to perform light work as defined in 20 C.F.R. § 404.1567(b), except for work that required the ability to climb ladders, ropes, or scaffolds, work overhead, reach, handle, and feel with the upper extremities more than frequently, perform tasks requiring binocular vision or depth perception, be exposed to hazards, or understand, remember, and carry out other than simple repetitive instructions, although he could persist to complete simple, repetitive instructions for eight hours a day, five days a week consistently, Finding 5, id. at 16; that, through his date last insured, considering his age (49 years old, defined as a younger individual, on his date last insured, subsequently changing to closely approaching advanced age), education (at least high school), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that he could perform, Findings 7-10, id. at 22-23; and that he, therefore, had not been disabled at any time from January 1, 2009, his alleged onset date of disability, through March 30, 2009, his date last insured, Finding 11, id. at 24. The Appeals Council declined to review the decision, id. at 1-3, making the decision the 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 is whether the determination made is supported by substantial evidence. 42 U.S.C. § 405(g); Manso-Pizarro v. Secretary of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the 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 5 of the sequential evaluation process, at which stage the burden of proof shifts to the commissioner to show that a claimant can perform work other than his past relevant work. 20 C.F.R. § 404.1520(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the commissioner's findings regarding the plaintiff's RFC to perform such other work. Rosado v. Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

I. Discussion

A. SSR 83-20

On December 8, 2010, the plaintiff filed applications for both SSD, or Title II, and Supplemental Security Income ("SSI"), or Title XVI, benefits. See Record at 11, 36-37. "To be eligible to receive SSD benefits [a claimant] ha[s] to have been disabled on or before [his or] her date last insured...; however, eligibility for SSI benefits is not dependent on insured status." Chute v. Apfel, No. 98-417-P-C, 1999 WL 33117135, at *1 n. 2 (D. Me. Nov. 22, 1999). For purposes of SSI benefits, the plaintiff was found disabled as of December 2010. See Record at 37. However, the administrative law judge determined that, for purposes of SSD benefits, he was not disabled as of March 30, 2009, noting, inter alia, that he received no medical treatment from May 2007, after he received a workers' compensation settlement, until February 2010, when he was incarcerated. See id. at 14. She stated that, based on the totality of the evidence, she "could reasonably find that the [plaintiff] was limited to medium level work on March 31, 2009[, ]" but to give him "the benefit of any doubt, " she would find that he was limited as assessed in her RFC determination. Id. at 22. She explained that she was not able to credit his allegations of greater functional limitation as "the record contain[ed] no evidence whatsoever supporting greater limitations[.]" Id.

The plaintiff complains that, because he was found disabled for purposes of SSI, the administrative law judge should have applied SSR 83-20 to infer his onset date of disability in adjudicating his SSD appeal. See Statement of Errors at 4-16; SSR 83-20, reprinted in West's Social Security Reporting Service Rulings 1983-1991, at 49 ("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 provides, in relevant part:

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.

Id. at 51.

The administrative law judge did not cite SSR 83-20; however, a failure to do so is harmless to the extent that the dictates of the rule are otherwise heeded. See, e.g., Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005) ("The ALJ did not refer to SSR 83-20 specifically in his decision, but this omission by itself is not reversible error. We must determine whether the ALJ nevertheless properly applied the requisite analysis. Our review of the decision leads us to conclude that he did not."); Field v. Shalal [ a ], No. CIV. 93-289-B, 1994 WL 485781, at *3 (D.N.H. Aug. 30, 1994) ("The ALJ's failure to explicitly rely on SSR 83-20 does not by itself require remand. In this case, however, the ALJ's reasoning also fails to comport with SSR 83-20's substantive requirements.") (citation omitted).

While SSR 83-20 does not mandate in every instance that a medical advisor be called, or additional evidence be sought, courts have construed one or both of those steps to be essential when the record is ambiguous regarding onset date. See, e.g., Katt v. Astrue, No. 05-55043, 2007 W L 815418, at *1 (9th Cir. Mar. 14, 2007) ("[A]n ALJ must call a medical expert if there is ambiguity in the record regarding the onset date of a claimant's disability. If the medical evidence is not definite concerning the onset date and medical inferences need to be made, SSR 83-20 requires the administrative law judge to call upon the services of a medical advisor and to obtain all evidence which is available to make the determination.") (citation and internal quotation marks omitted); Blea v. Barnhart, 466 F.3d 903, 910 (10th Cir. 2006) ("[A] medical advisor need be called only if the medical evidence of onset is ambiguous.") (citation and internal quotation marks omitted); Briscoe, 425 F.3d at 353 ("The ALJ acknowledged that the medical evidence was inconclusive. Rather than explore other sources of evidence, as SSR 83-20 requires, the ALJ drew a negative inference at that point."); May v. Social Sec. Admin. Comm'r, No. 97-1367, 1997 WL 616196, at *1-*2 (1st Cir. Oct. 7, 1997) (because evidence regarding date on which claimant's mental impairment became severe was ambiguous, SSR 83-20 required administrative law judge to consult medical advisor); Grebenick v. Chater, 121 F.3d 1193, 1200-01 (8th Cir. 1997) ("It is important to understand that the issue of whether a medical advisor is required under SSR 83-20 does not turn on whether the ALJ could reasonably have determined that [claimant] was not disabled before September 30, 1982. Rather, when there is no contemporaneous medical documentation, we ask whether the evidence is ambiguous regarding the possibility that the onset of her disability occurred before the expiration of her insured status. 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 to insure that the determination of onset is based upon a legitimate medical basis.") (citations and internal quotation marks omitted).

The plaintiff argues that the medical evidence of his onset date was ambiguous, as a result of which the administrative law judge erred in rejecting his claim for lack of contemporaneous medical evidence and failing to call a medical advisor. See Statement of Errors at 5. He separately contends that the administrative law judge erred in failing to find that, as of his date last insured, he had limitations on ...


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