Robert Chulada v. SSA CV-01-083-B 01/31/02
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Chulada
Civil No. 01-083-B
2002 DNH 036
JoAnne Earnhardt. Commissioner.
Social Security Administration
MEMORANDUM AND ORDER
Robert Chulada applied to the Commissioner of the Social
Security Administration for both disability insurance benefits
("DIB") under Title II of the Social Security Act, 42 U.S.C. §
401 et seq., and Supplemental Security Income ("SSI") under Title
XVI of the Act, 42 U.S.C. § 1382 et seq. Following a hearing, an
Administrative Law Judge ("ALJ") granted Chulada's application
for SSI but denied his request for DIB because he determined
that, while Chulada was disabled when he applied for benefits and
therefore was entitled to SSI, he did not become disabled until
after his eligibility for DIB had expired. Chulada argues that
the ALJ's decision must be vacated. Because I agree, I remand
the case to the Commissioner for further proceedings.
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I. OVERVIEW OF THE CASE
Chulada is a former truck driver who claims that he has not
worked since May 1991 and has been disabled from working since
January 1, 1992, when he was 45 years old. In his initial
benefits applications, Chulada specified that he was disabled due
to severe depression and a back injury. The Social Security
Administration denied Chulada's applications initially and upon
reconsideration.
On March 15, 1999, Administrative Law Judge ("ALJ") Kenneth
Harap held a hearing on Chulada's applications, and on June 10,
1999, he issued a written decision. In that the decision, the
ALJ concluded that, as of July 16, 1997, the date he applied for
benefits, Chulada was disabled within the meaning of the Act
because his physical impairments and mental illness prevented him
from returning to his prior work and from making a vocational
adjustment to other work which exists in the national economy.
As a result, the ALJ found Chulada entitled to SSI, which is paid
under a needs-based program not contingent on any earnings
requir e m e n t .
But the ALJ further determined that, through December 31,
1996, the date on which Chulada was last insured under the DIB
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program, Chulada retained the capacity to perform a wide range of
light work, which is readily available throughout the national
economy, and accordingly was not disabled within the meaning of
the Act. In explaining this conclusion, the ALJ specifically
stated that, on or around July 16, 1997, Chulada experienced an
"onset of major depression" that, in combination with the ongoing
physical limitations that precluded him from driving a truck and
limited him to light work, rendered him totally disabled. The
ALJ also repeatedly referred to Chulada's mental condition as
having "deteriorated" on or after July 16, 1997, and stated that
Chulada had "no psychological limitations other than his drug
dependence" on or prior to December 31, 1996.
In this action, Chulada's general, albeit somewhat implicit,
position is that the ALJ lacked a basis for concluding that his
mental illness, which all agree was disabling as of July 16,
1997, (1) was non-existent or not disabling on or prior to
December 31, 1996, and (2) worsened to the point of becoming
disabling only in mid-1997. In support of his first argument,
Chulada also makes a subsidiary assertion that, to the extent
that the ALJ's conclusion that Chulada had "no psychological
limitations other than his drug dependence" prior to 1997 was
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premised on a finding that Chulada was mentally ill prior to 1997
but suffered only from mental illness attributable to his drug
dependence (a finding which would preclude the payment of
disability benefits, s e e , e . g . , Bustamante v. M a s s a n a r i , 262 F.3d
949, 954-55 (9th Cir. 2001)), the ALJ made a medical judgment
beyond his competence as a layperson.
II. RELEVANT EVIDENCE
_____ As mandated by Local Rule 9.1, the parties have submitted a
joint statement of material facts summarizing the evidence that
the ALJ considered in rendering his decision. See Document no.
10. Because all agree that Chulada's psychological condition
rendered him disabled as of July 16, 1997, and because this case
challenges only the ALJ's determinations that (1) Chulada had "no
psychological limitations other than his drug dependence" on or
prior to December 31, 1996; (2) Chulada's mental condition
"deteriorated" to the point of becoming disabling on or around
July 16, 1997, I shall limit my recitation to evidence bearing on
these issues. The balance of the parties' joint statement is
incorporated by reference.
A. Evidence of Psychological Impairments Prior to 1997
_____ There is strong record evidence that, on or prior to
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December 31, 1996, Chulada suffered from depression. In his
October 28, 1993 psych-med assessment, Nechal Tejwani, M.D.,
diagnosed Chulada as suffering from depression, which he
described as "moderate . . . including some vegetative signs."
In his November 26, 1993 "Evaluation Report," clinician N. Paskow
of the Psychological Center diagnosed Chulada with "vegetative
depression," as well as manic symptoms, mood swings, intense
instability, and racing thoughts. In his August 6, 1997 report,
Hans W. Standow, M.D., described Chulada's depression as both
"major" and "recurrent," thus at least implying that the
depression was not of recent origin. Similarly, in his December
10, 1997 psychological evaluation, Angel R. Martinez, Ph.D.,
diagnosed Chulada as having a "major depressive disorder" which
was "recurrent."1 The January 1996 admission assessment of
Spectrum Addiction Services, Inc., described Chulada as suffering
from "severe" depression. Finally, the December 4, 1996
admission assessment Spectrum Health Systems, Inc., observed that
1By contrast, in August 1997, Thomas Meehan, M.D., of
Bedford Counseling Associates diagnosed Chulada with a "single
episode" of "major depression." And Chulada's intake sheet at
Bedford Counseling Associates states "major depression single
episode R/O recurrent depression." The parties agree that "R/O"
means "rule out." See Joint Statement of Material Facts at 8.
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Chulada suffered from depression.
In addition, there is record evidence that Chulada suffered
from post-traumatic stress disorder. See October 28, 1993 psych-
med assessment of Dr. Tejwani; November 26, 1993 evaluation
report of clinician Paskow; October 1, 1994 discharge summary of
clinician Dean M. Brouden. Finally, there is evidence that
Chulada, at least periodically, had a suicidal ideation. See
October 1, 1994 discharge summary of clinician Brouden; January
1996 admission assessment of Spectrum Addiction Services, Inc.
B. Evidence of a mid-1997 "Deterioration" in Chulada's Mental
Health
There is little to no evidence that Chulada's mental health
"deteriorated" after December 31, 1996. While Chulada's
depression was described as "major" by Drs. Standow and Martinez
in the latter half of 1997, it also was described as "severe"
when Chulada was admitted to Spectrum Addiction Services in
January 1996. In fact, if anything, the evidence suggests that
Chulada's psychological condition improved in 1997.
The record contains several global assessment of functioning
("GAF") scores assigned to Chulada by examining clinicians
between November 1993 and August 1997. In his brief, Chulada
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explains, without contradiction from the Commissioner, that "[a]
GAF score is a subjective determination which represents 'the
clinician's judgment of the individual's overall level of
functioning,'" including his "'psychological, social, and
occupational functioning,'" and that "GAF scores of 55 indicate
moderate psychiatric symptoms causing moderate difficulty in
social or occupational functioning and scores of 50 indicate
serious symptoms in social or occupational functioning."
Plaintiff's Motion for Order Reversing the Decision of the
Commissioner at 8 (citing and quoting the Diagnostic and
Statistical Manual of Mental Disorders at 30, 32 (4th ed. 1994)).
Chulada was assigned GAF scores of 20 on November 26, 1993;
50 on January 11, 1996 (also indicating a GAF score of 50 for the
previous year); 50 on January 17, 1996 (also indicating a GAF
score of 50 for the previous year); 50 on December 4, 1996 (also
indicating a GAF score of 50 for the previous y e a r ) ; 55 on June
5, 1997 (also indicating a GAF score of 50 for the previous
year); and 55 on August 13, 1997 (also indicating a GAF score of
85 for the previous year) .
C. Evidence of Drug Dependence On or Prior to December 31, 1996
There is uncontradicted record evidence that Chulada, at
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least periodically, suffered from drug dependence on or prior to
December 31, 1996. On November 26, 1993, clinician N. Paskow of
The Psychological Center diagnosed Chulada with polysubstance
dependence. The Psychological Center's October 1, 1994 discharge
summary stated that Chulada had polysubstance dependence and
opioid dependence. In January 1996, Spectrum Addiction Services
diagnosed Chulada with opioid dependence. In his August 6, 1997
report. Dr. Standow notes that Chulada admitted to a prior heroin
addiction, and diagnosed Chulada with polysubstance dependence,
in remission. In an August 13, 1997 intake statement, Bedford
Counseling Associates diagnosed Chulada with "polysubstance
dependence 8 mos. sobriety." Dr. Martinez's December 10, 1997
psychological evaluation is to similar effect.
Ill. RELEVANT LAW
The standard of review I apply in evaluating Chulada's
argument is familiar and can be succinctly summarized. I must
uphold the ALJ's determination that Chulada was not disabled
prior to December 31, 1996 if there is "substantial evidence," 42
U.S.C. § 405(g), that Chulada was not then precluded from
"engag[ing] in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which [could
have been] expected to result in death or which ha[d] lasted for
a continuous period of not less than 12 months."
42 U.S.C. §
4 2 3 ( d ) (1)(A). Substantial evidence exists where "a reasonable
mind, reviewing the evidence in the record as a whole, could
accept it as adequate to support [the ALJ's] conclusion," Irlanda
Ortiz v. Sec'v of Health & Human S e r v s .,
955 F.2d 765, 769 (1st
Cir. 1991) (per curi a m ) (citation and internal quotation marks
o mitted), even where the record can be construed to support
another conclusion, see Rodriquez Pagan v. Sec'v of Health &
Human S e r v s .,
819 F.2d 1, 3 (1st Cir. 1987) (per curi a m ) .
In making his disability determination, the ALJ applies a
five-step sequential analysis set forth at 20 C.F.R. §§ 404.1520
and 416.920. In this case, the first four steps of that process
are not in issue, so I proceed directly to an overview of step
five. At this point in the process, the Commissioner must show
that, despite the impairment or impairments which preclude the
claimant from returning to his past relevant work, "there are
jobs in the national economy that [the] claimant can perform."
Heqqarty v. Sullivan,
947 F.2d 90, 995 (1st Cir. 1991) (per
curiam) . "Although the ALJ should ordinarily be entitled to rely
on claimant's counsel to structure and present the claimant's
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case in a way that adequately explores the claims, 'the ALJ is
responsible in every case to ensure that an adequate record is
developed . . . consistent with the issues raised.'" Brunei v.
Earn h a r d t , Civil No. 00-402-B, slip op. at 24-25 (D.N.H. Jan. 7,
2002) (citing and quoting Hawkins v. C h a t e r , 113 F.3d 1162, 1164,
1167 (10th Cir. 1997)). This responsibility, coupled with the
fact that "the absence of evidence is not evidence," Thompson v.
S ullivan ,
987 F.2d 1482, 1491 (10th Cir. 1993), means that a
step-five determination that a claimant is not disabled is not
supported by substantial evidence where the "claim itself seems
on its face to be substantial, where there are gaps in the
evidence necessary to a reasoned evaluation of the claim, and
where it is within the power of the [ALJ], without undue effort,
to see that the gaps are somewhat filled." H e q q a r t y ,
947 F.2d at
997 (citation and internal quotation marks o m i t t e d ) . The ALJ
cannot, however, fill record gaps with findings that are beyond
his professional competence; if medical or vocational judgments
requiring specialized training are necessary to an informed
disability ruling, they must be made by experts. See Nquven v.
C h a t e r ,
172 F.3d 31, 35-36 (1st Cir. 1999) (per curi a m ) .
IV. ANALYSIS
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As previously noted, Chulada challenges the ALJ's
conclusions that (1) Chulada suffered no function-limiting
psychological impairments other than his drug dependence on or
prior to December 31, 1996; and (2) Chulada's mental condition
"deteriorated" to the point of becoming disabling only on or
around July 16, 1997. Chulada asserts that these conclusions are
unsupported and that, to the extent that the first conclusion was
premised on a finding that Chulada's pre-1997 psychological
impairments were attributable to his drug dependence, this
finding could not be made without the assistance of a medical
advisor. I agree.
It is unclear from his decision why the ALJ determined that
Chulada's condition did not become disabling until after his
eligibility for DIB had expired. If the ALJ's first conclusion
was premised on a finding that Chulada suffered from no
psychological impairments at all on or prior to December 31,
1996, the record not only fails to support his conclusion, but it
utterly contradicts it. See supra Section II-A. Alternatively,
if, as is more likely the case, the ALJ's first conclusion is
premised on a finding that Chulada's documented psychological
impairments on or prior to December 31, 1996 were attributable to
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his drug dependence and therefore not a proper basis for a
benefits award, s e e , e . g . , Bus t a m a n t e , 262 F.3d 949, 954-55
(explaining the operation of the Contract with America
Advancement Act,
42 U.S.C. §§ 4 2 3 ( d ) (2)(C) and 1 3 8 2 c ( a ) (3)(J ) ,
which states that "an individual shall not be considered to be
disabled for purposes of [benefits under Titles II or XVI of the
Act] if . . . drug addiction would (but for this subparagraph) be
a contributing factor to the Commissioner's determination that
the individual is disabled"), the conclusion rests upon a medical
finding which the ALJ cannot make without a supporting opinion
from a qualified medical advisor, see N q u v e n ,
172 F.3d at 35
(collecting cases which emphasize that the ALJ, as a layperson,
is not qualified to interpret raw medical data without a
supporting medical o p i n i o n ) . Finally, as I suggested supra in
Section II-B, the ALJ's second conclusion lacks substantial
evidentiary support.
IV. CONCLUSION
When a court finds that the administrative record does not
contain substantial evidence supporting the Commissioner's
decision, it ordinarily should vacate the decision and remand the
matter for further proceedings consistent with the reasoning in
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its opinion. See 42 U.S.C. § 405(g); Seavev v. E a r n h a r d t , ___
F .3d ___ ,
2001 WL 1631477, at * 6 (1st Cir. Dec. 27, 2001). This
is such a case.
While the medical evidence that exists about Chulada's
psychological condition prior to 1997 suggests that Chulada's
admittedly disabling (as of July 16, 1997) mental conditions
were, if anything, more severe on or prior to December 31, 1996,
such evidence is not extensive. Moreover, it is possible that a
medical expert would link Chulada's pre-1997 psychological
impairments to his non-qualifying drug dependence and opine that
such impairments would not have been disabling but for the drug
use. Finally, even if I were to find Chulada's mental illness to
have been disabling on or prior to December 31, 1996, I have no
grounds for identifying an onset date based on the present record
evidence.
Accordingly, I vacate the judgment denying Chulada
disability insurance benefits and remand this matter to the
Commissioner with instructions that she either identify an onset
date prior to Chulada's date last insured and award him benefits
or generate evidence that Chulada's disabling (as of July 16,
1997) psychological impairments were not in fact disabling,
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within the meaning of the Act, on or prior to December 31, 1996.
The Commissioner's Motion for an Order Affirming the Decision of
the Commissioner (document no. 9) is denied and the Plaintiff's
Motion for Order Reversing the Decision of the Commissioner
(document no. 6) is g r a n t e d .
The Clerk shall enter judgment accordingly.
SO ORDERED.
Paul Barbadoro
Chief Judge
January 31, 2002
cc: Raymond J. Kelly, Esq.
David L. Broderick, Esq.
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