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Hughes v. Colvin

United States District Court, D. Maine

January 19, 2016

DENNIS HUGHES, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

MEMORANDUM DECISION [1]

John H. Rich III United States Magistrate Judge

This Social Security Disability (“SSD”) appeal raises the question of whether the administrative law judge’s failure to apply Social Security Ruling 83-20 (“SSR 83-20”) to infer the plaintiff’s onset date of disability requires remand. The plaintiff contends that, in violation of SSR 83-20, the administrative law judge neglected to call a medical advisor to aid in making that determination. See Plaintiff’s Itemized Statement of Errors (“Statement of Errors”) (ECF No. 15) at 3-8. Because I find that the medical evidence of the plaintiff’s onset date was not ambiguous, I find no reversible error and, accordingly, affirm the commissioner’s decision.

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 December 31, 2005, Finding 1, Record at 13; that, through his date last insured, he had medically determinable impairments of mild bilateral hearing loss, gastroesophageal reflux, and bilateral carpal tunnel syndrome, but had no severe impairment or combination of impairments, Findings 3-4, id. at 14; and that he, therefore, had not been disabled from October 31, 2000, his alleged onset date of disability, through December 31, 2005, his date last insured for SSD benefits, Finding 5, id. at 20. 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 2 of the sequential evaluation process. Although a claimant bears the burden of proof at Step 2, it is a de minimis burden, designed to do no more than screen out groundless claims. McDonald v. Secretary of Health & Human Servs., 795 F.2d 1118, 1124 (1st Cir. 1986). When a claimant produces evidence of an impairment, the commissioner may make a determination of non-disability at Step 2 only when the medical evidence “establishes only a slight abnormality or [a] combination of slight abnormalities which would have no more than a minimal effect on an individual’s ability to work even if the individual’s age, education, or work experience were specifically considered.” Id. (quoting Social Security Ruling 85-28).

I. Discussion

On March 19, 2012, the plaintiff filed applications for both SSD, or Title II, and Supplemental Security Income (“SSI”), or Title XVI, benefits. See Record at 11. “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). On reconsideration, the plaintiff was found disabled for purposes of SSI benefits effective March 19, 2012, the date his application was filed. See Record at 11.[2] He continued to be found not disabled for purposes of SSD benefits. See id. He appealed that determination, leading to the decision of which he complains. See id.

The plaintiff contends that, because he had already been 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 3-5; 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.

SSR 83-20 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 that a medical advisor be called in every instance, 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 at Step 2 of the five-step sequential evaluation process for failure to demonstrate that he had a severe impairment as of his date last insured, December ...


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