Moriarty v. SSA

Moriarty v . SSA                      07-CV-342-SM   08/28/08
                   UNITED STATES DISTRICT COURT
                    DISTRICT OF NEW HAMPSHIRE


Daniel Moriarty,
     Claimant

     v.                                 Civil N o . 07-cv-342-SM
                                        Opinion N o . 

Michael J. Astrue, Commissioner,
Social Security Administration,
     Defendant


                            O R D E R


     Pursuant to 

(g), Daniel T . Moriarty moves to

reverse the Commissioner’s decision denying his application for

Social Security Disability Insurance Benefits under Title II of

the Social Security Act, 

 (the “Act”).    He says

the Administrative Law Judge (“ALJ”) erred in concluding that he

was not disabled prior to the date on which his insured status

expired.   The Commissioner objects and moves for an order

affirming his decision.



     For the reasons set forth below, this matter is remanded to

the ALJ for further proceedings.
                        Factual Background

I.   Procedural History.

     Mr. Moriarty is a veteran of the Vietnam War. He served in

the military from 1968 to 1970. Among other things, he served as

an infantry point man for approximately six months, and was

highly decorated for his military service. Although the precise

onset date of his illness is unclear (and is at the core of this

matter), the record amply demonstrates that he suffers from post-

traumatic stress disorder (“PTSD”) and its chronic symptoms,

including anxiety, depression, nightmares and sleep disturbances,

flashbacks, social isolation, recurrent recollections of

traumatic events, and panic attacks.



     For reasons that are neither clear nor material to the

issues presented, claimant did not seek treatment for his illness

until at least 1976, when he says he had an anxiety attack while

living in the State of Washington.   The hospital at which he says

he obtained treatment, however, was unable to locate a record of

that treatment. The earliest extant treatment records pertaining

to claimant’s illness are from the Veterans Administration

Hospital in Manchester, New Hampshire, dating to 1981 -

approximately one and one-half years after his insured status

expired.   Since 1981, however, records of his medical treatment

                                2
are substantial, as is evidence supporting the conclusion that he

is currently disabled (though the court need not, and does not,

resolve that issue).   For example, the Veterans Administration

recognizes that he suffers from a 100 percent service-related

disability.



     In October of 1993, claimant filed an application for

disability insurance benefits under Title II of the Act. An ALJ

denied that application and claimant did not appeal (it is

unclear whether claimant was represented by counsel at the time).

Claimant filed a subsequent application for disability insurance

benefits in 2000, again alleging disability in 1979.   That

application was also denied and claimant’s request for a hearing

before an ALJ was denied on grounds of res judicata. For reasons

that are not material to this proceeding, all agree that the

denial of claimant’s request for a hearing constituted error.



     On June 2 4 , 2004, claimant filed another application for

disability insurance benefits, alleging that he had been unable

to work since January 1 , 1979, due to PTSD, anxiety, a panic

disorder, and depression.   His application was denied.   He then

requested, and was granted, a hearing before an ALJ.

Accordingly, on April 4 , 2007, claimant and his attorney appeared

                                3
before an ALJ, who considered claimant’s application de novo.     On

May 1 0 , 2007, the ALJ issued a written decision, finding that

claimant did not suffer from a medically determinable impairment

prior to his date last insured (September 3 0 , 1979).

Consequently, the ALJ concluded that claimant was not disabled,

as that term is defined in the Act, at any time through the

expiration of his insured status.



      Claimant sought review of the ALJ’s decision by the Appeals

Council, which denied his request. As a result, the ALJ’s denial

of claimant’s application for benefits became the final decision

of the Commissioner, subject to judicial review.     Claimant filed

a timely action in this court, asserting that the ALJ’s decision

was not supported by substantial evidence and seeking a remand to

the ALJ for further proceedings. Claimant then filed a “Motion

for Order Reversing the Decision of the Commissioner” (document

no. 9 ) .   In response, the Commissioner filed a “Motion for Order

Affirming the Decision of the Commissioner” (document n o . 1 0 ) .

Those motions are pending.



II.   Stipulated Facts.

      Pursuant to this court’s Local Rule 9.1(d), the parties have

submitted a statement of stipulated facts which, because it is

                                  4
part of the court’s record (document n o . 1 1 ) , need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.



                          Standard of Review

I.   Properly Supported Findings by the ALJ are
     Entitled to Deference.

     Pursuant to 

(g), the court is empowered “to

enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the

cause for a rehearing.”    Factual findings of the Commissioner are

conclusive if supported by substantial evidence.1     See 

(g), 1383(c)(3); Irlanda Ortiz v . Secretary of Health &

Human Services, 

 (1st Cir. 1991).      Moreover,

provided the ALJ’s findings are supported by substantial

evidence, the court must sustain those findings even when there

may also be substantial evidence supporting the contrary



1
     Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Consolidated Edison C o . v . NLRB, 

 9 7 , 229
(1938). It is something less than the weight of the evidence,
and the possibility of drawing two inconsistent conclusions from
the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence. Consolo v . Federal
Maritime Comm’n., 

 0 7 , 620 (1966).

                                  5
position. See Tsarelka v . Secretary of Health & Human Services,

 (1st Cir. 1988) (“[W]e must uphold the

[Commissioner’s] conclusion, even if the record arguably could

justify a different conclusion, so long as it is supported by

substantial evidence.”).   See also Rodriguez v . Secretary of

Health & Human Services, 

 1 8 , 222-23 (1st Cir. 1981).



     In making factual findings, the Commissioner must weigh and

resolve conflicts in the evidence. See Burgos Lopez v . Secretary

of Health & Human Services, 

 7 , 40 (1st Cir. 1984)

(citing Sitar v . Schweiker, 

 9 , 22 (1st Cir. 1982)).    It

is “the responsibility of the [Commissioner] to determine issues

of credibility and to draw inferences from the record evidence.

Indeed, the resolution of conflicts in the evidence is for the

[Commissioner], not the courts.”       Irlanda Ortiz, 

(citation omitted).   Accordingly, the court will give deference

to the ALJ’s credibility determinations, particularly where those

determinations are supported by specific findings. See

Frustaglia v . Secretary of Health & Human Services, 

 9 2 ,

195 (1st Cir. 1987) (citing Da Rosa v . Secretary of Health &

Human Services, 

 4 , 26 (1st Cir. 1986)).




                                   6
II.   The Parties’ Respective Burdens.

      An individual seeking Social Security disability benefits is

disabled under the Act if he or she is unable “to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

to result in death or which has lasted or can be expected to last

for a continuous period of not less than 12 months.”      

(d)(1)(A).   The Act places a heavy initial burden on the

claimant to establish the existence of a disabling impairment.

See Bowen v . Yuckert, 

 3 7 , 146-47 (1987); Santiago v .

Secretary of Health & Human Services, 

 , 5 (1st Cir.

1991).   To satisfy that burden, the claimant must prove that his

impairment prevents him from performing his former type of work.

See Gray v . Heckler, 

 (1st Cir. 1985) (citing

Goodermote v . Secretary of Health & Human Services, 

 , 7

(1st Cir. 1982)).   Nevertheless, the claimant is not required to

establish a doubt-free claim.    The initial burden is satisfied by

the usual civil standard: a “preponderance of the evidence.”        See

Paone v . Schweiker, 

 0 8 , 810-11 (D. Mass. 1982).



      If the claimant has shown an inability to perform his

previous work, the burden shifts to the Commissioner to show that

there are other jobs in the national economy that he can perform.

                                  7
See Vazquez v . Secretary of Health & Human Services, 

 ,

2 (1st Cir. 1982).   See also 20 C.F.R. 1512(g).   If the

Commissioner shows the existence of other jobs that the claimant

can perform, then the overall burden to demonstrate disability

remains with the claimant. See Hernandez v . Weinberger, 

 (1st Cir. 1974); Benko v . Schweiker, 

 9 8 ,

701 (D.N.H. 1982).



     In assessing a disability claim, the Commissioner considers

both objective and subjective factors, including: (1) objective

medical facts; (2) the claimant’s subjective claims of pain and

disability, as supported by the testimony of the claimant or

other witnesses; and (3) the claimant’s educational background,

age, and work experience. See, e.g., Avery v . Secretary of

Health & Human Services, 

 9 , 23 (1st Cir. 1986);

Goodermote, 

.   When determining whether a claimant

is disabled, the ALJ is also required to make the following five

inquiries:


     (1)   whether the claimant is engaged in substantial
           gainful activity;

     (2)   whether the claimant has a severe impairment;

     (3)   whether the impairment meets or equals a listed
           impairment;



                                 8
       (4)   whether the impairment prevents the claimant from
             performing past relevant work; and

       (5)   whether the impairment prevents the claimant from
             doing any other work.

. Ultimately, a claimant is disabled only if

his:


       physical or mental impairment or impairments are of
       such severity that he is not only unable to do his
       previous work but cannot, considering his age,
       education, and work experience, engage in any other
       kind of substantial gainful work which exists in the
       national economy, regardless of whether such work
       exists in the immediate area in which he lives, or
       whether a specific job vacancy exists for him, or
       whether he would be hired if he applied for work.

(d)(2)(A).



       With those principles in mind, the court reviews claimant’s

motion to reverse and the Commissioner’s motion to affirm his

decision.



                              Discussion

I.     Background - The ALJ’s Findings.

       In concluding that M r . Moriarty was not disabled within the

meaning of the Act, the ALJ first determined that he had not been

engaged in substantial gainful employment from his alleged onset


                                   9
date of January 1 , 1979, through his date last insured of

September 3 0 , 1979. Next, the ALJ concluded that “the objective

medical evidence contained in the record does not establish the

existence of a medically determinable impairment through the date

last insured that could have reasonably been expected to produce

the claimant’s symptoms.”   Administrative Record (“Admin. Rec.”)

at 19-20.   Accordingly, at step two of the five-step sequential

analysis, the ALJ concluded that claimant was not disabled, as

that term is defined in the Act, at any time from his alleged

onset date through his date last insured.



II.   Claimant’s Mental Impairments.

      On appeal, claimant raises two related issues. First, he

says that, at step two of the sequential analysis, the ALJ

improperly concluded that he does not suffer from a severe mental

impairment. Next, he asserts that the ALJ erred in concluding

that he was not, as of the date on which his insured status

expired (September 3 0 , 1979), disabled as a result of that mental

impairment. The problem presented in this case is this: despite

claimant’s assertion that the symptoms of his PTSD rendered him

disabled as of January, 1979, and despite his recollection that

he was hospitalized as a consequence of those symptoms at least

once in the mid-1970’s, there are no medical records of his

                                10
having obtained treatment prior to the date on which his insured

status expired.   Accordingly, the ALJ concluded:


    The undersigned notes that in order for an impairment
    to be medically determinable it must result from
    anatomical, physiological, or psychological
    abnormalities that can be shown by medically acceptable
    clinical and laboratory diagnostic techniques. It
    cannot be determined based only on an individual’s
    recollections or subjective complaints. Thus,
    regardless of how genuine the claimant’s complaints may
    appear to b e , when there are no medical signs or
    laboratory findings to substantiate the existence of a
    medically determinable physical or mental impairment
    that could reasonably be expected to produce the
    claimant’s symptoms, a finding of not disabled is
    required at step two of the sequential evaluation
    process. Such is the case in this instance.


Admin. Rec. at 19 (citations omitted).



    In response, claimant says the lack of objective medical

evidence of a mental impairment prior to his date last insured is

not fatal to his application for disability benefits. In support

of that position, claimant says that while objective medical

evidence is necessary to prove that his impairments are, in fact,

disabling, such evidence is not necessary to establish the onset

date of his disability.   And, says claimant, the ALJ erred by,

first, failing to determine whether he currently suffers from a

severe mental impairment, and then by failing to determine the

onset date of that impairment.

                                 11
     As to the first of those two steps, claimant asserts that

there is ample medical evidence in the record to support his

claim that he is currently disabled by virtue of his PTSD.       See

Claimant’s memorandum (document n o . 9-2) at 6 n.4. The court

agrees.   For example, as early as 1982, D r . Grimm, a psychologist

on staff with the VA Hospital opined that:


     The evidence for a severe anxiety disorder is clear and
     persuasive. The fact that the [patient’s] premorbid
     functioning was excellent, that onset of symptoms was
     precipitous and not associated with any temporally
     appropriate stressor, and that imperfectly repressed
     trauma related to the stresses of combat have been
     recovered through hypnosis all point to a diagnosis of
     post-traumatic stress disorder, delayed, chronic.
     Indeed I have seldom seen a case of this disorder which
     so clearly met diagnostic criteria.


Admin. Rec. at 308. See also Mental Residual Functional Capacity

Questionnaire completed by D r . Perla Kissmeyer, claimant’s

treating psychiatrist at the VA Hospital, Admin. Rec. at 452. If

the opinions offered by D r . Grimm and/or D r . Kissmeyer are

credited, a finding that claimant suffers from a severe

impairment - that i s , PTSD - is all but compelled.2


2
     Neither claimant’s stray comment, as reported by a clinical
social worker in 1981, that he had been “doing quite well up
until December of [1980]” Admin. Rec. at 333, nor the fact that
Dr. Kissmeyer opined that his global assessment of functioning
was in the 55 to 65 range, substantially undermines the evidence
that he is disabled. Those points are well-addressed in
claimant’s memoranda and need not be repeated.

                                 12
     Moreover, the precedent in this area unmistakably

establishes that step two in the sequential analysis is a “de

minimis screening step,” designed to filter out “groundless

claims” filed by individuals whose impairments have no more than

a minimal effect on their ability to work.   McDonald v . Secretary

of Health & Human Services, 

 (1st Cir. 1986).

See also Timmons v . Apfel, 

, at *5 (D.N.H. Aug.

1 7 , 1999) (“Although the burden lies with the claimant, he need

only make a de minimis showing to surpass a denial of benefits at

step two. The step-two requirement is merely a threshold,

designed to do no more than screen out groundless claims.”)

(citations and internal punctuation omitted).   See generally SSR

85-28 (Nov. 3 0 , 1984) (“Great care should be exercised in

applying the not severe impairment concept. If an adjudicator is

unable to determine clearly the effect of an impairment or

combination of impairments on the individual’s ability to do

basic work activities, the sequential evaluation process should

not end with the not severe evaluation step.”).



     Nevertheless, the problem identified by the ALJ remains:

notwithstanding claimant’s assertion that his mental impairments

were disabling on or before September 3 0 , 1979, and despite the

retrospective diagnosis offered by claimant’s treating

                                13
psychiatrist that he was disabled by reason of his PTSD by 1979

and possibly as early as 1976, see Admin. Rec. at 158 and 449,

there are no medical records or laboratory findings from the

relevant period to support such a finding.   Thus, the question

presented by claimant’s appeal is whether the absence of medical

records for the relevant temporal period is necessarily fatal to

his claim.   It is not.



     As the ALJ correctly noted, objective medical evidence is

necessary to establish the existence of a disabling impairment.

See, e.g., 

 (“A physical or mental impairment

must be established by medical evidence consisting of signs,

symptoms, and laboratory findings, not only by your statement of

symptoms.”).   See also Social Security Ruling (“SSR”) 96-4p, 

 at *1 (July 2 , 1996) (“No 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 b e , unless

there are medical signs and laboratory findings demonstrating the

existence of a medically determinable physical or mental

impairment.”).   Importantly, however, if a claimant is found to

suffer from a disabling impairment, objective medical evidence,

while preferred, is not essential to resolving the onset date of

that disability.

                                14
    Social Security Ruling 83-20, entitled “Titles II and XVI:

Onset of Disability,” makes clear that there are three factors

that must be considered when determining the onset date of a

claimant’s disability: “the applicant’s allegations, work

history, if any, and the medical and other evidence concerning

impairment severity.”   SSR 83-20, 

 at *2 (1983).

Nowhere in the SSR is there any suggestion that the absence of

medical records establishing an onset date is fatal to an

individual’s disability claim.   In fact, the SSR provides just

the opposite, specifically noting that in some cases it may be

necessary to infer the onset date of a claimant’s disability from

non-medical evidence.


    In some case, 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 [the] file and additional relevant medical evidence
    is not available, it may be necessary to explore other

                                 15
     sources of documentation. Information may be obtained
     from family members, friends, and former employers
     . . . to furnish additional evidence regarding the
     course of the individual’s condition.


SSR 83-20, 

 at * 3 (emphasis supplied).



     In light of the foregoing, the ALJ’s observation that “the

medical records establish that he did not complain of symptoms of

mental illness until nearly 2 years after he was last insured,”

Admin. Rec. at 1 9 , while likely correct, is not dispositive of

claimant’s application for disability benefits. The first step

in the inquiry is to determine whether claimant is currently

disabled.   If s o , the next step is to determine the onset date of

that disability.   And, critically, the absence of medical

evidence prior to the expiration of claimant’s insured status is

not dispositive of his assertion that he suffered from a

disabling mental impairment during that period.



     Given the absence of objective medical findings during the

relevant period, prior to rejecting claimant’s application, the

ALJ should have considered (and discussed in his decision) the

other relevant factors that are set forth above (e.g., the

claimant’s allegations; the testimony of friends, family, co-

workers, and former employers about claimant’s condition and its

                                 16
effect on his ability to engage in substantial gainful activity;

and the claimant’s work history).     See SSR 83-20, 

at *2-3. Additionally, the ALJ probably should have called upon

a medical consultant to assist him in inferring the likely onset

date of claimant’s impairment(s).     See 

 at * 3 . See also

Deblois v . Secretary of Health & Human Services, 

 6 , 81

(1st Cir. 1982) (discussing the ALJ’s obligation to consult

medical experts to determine the onset date of claimant’s war-

related serious mental disorder); Ryan v . Commissioner, 

, slip o p . at 17 (D.N.H. Aug. 2 1 , 2008) (“Courts agree that

SSR 83-20 ordinarily requires an ALJ to consult a medical advisor

when the ALJ has made a finding of disability but the onset of

the disability must be inferred from ambiguous evidence.”)

(citations omitted); Hurd v . Commissioner, 

 4 4 , 

 at *8 (D.N.H. Feb. 2 5 , 2008) (“Determining the onset date

of a disabling impairment is a complex issue that generally

should be made after consulting medical experts.”); Mason v .

Apfel, 

 4 2 , 150 (D.Mass. 1998) (“Where, as SSR 83-20

directs, the onset date must be inferred from the medical and

other evidence describing the history and symptomatology of the

disease process, the administrative law judge is required to

retain the assistance of a medical advisor. Without that

assistance, the administrative law judge does not have an

                                 17
adequately developed record upon which to base his decision.”)

(emphasis supplied and citation omitted).



     Parenthetically, the court notes that the Commissioner

asserts that “SSR 83-20 does not apply” to this case because a

“condition precedent to the application of SSR 83-20, that

claimant had been found disabled at some later point, does not

exist in this case.”   Respondent’s memorandum (document n o . 10-2)

at 1 0 . This court (Barbadoro, J.) has, however, expressly

rejected that proposition, concluding that there i s :


     no support for the Commissioner’s position either in
     the language of SSR 83-20 or in the underlying policies
     that the ruling was designed to serve. SSR 83-20
     straightforwardly states that an ALJ “should call on
     the services of a medical advisor when onset must be
     inferred.” It does not authorize ALJs to circumvent
     the ruling by withholding a finding on present
     disability and denying the claim based upon a
     determination that the claimant was not disabled as of
     her date last insured. In short, there is no support
     in the text of SSR 83-20 for the Commissioner’s
     position.

     The Commissioner’s interpretation of SSR 83-20 is also
     inconsistent with the public policy that the ruling was
     intended to serve. As the ruling notes, an onset date
     finding will often be determinative of a claim for
     benefits. Such findings can be extremely difficult to
     make when a claimant suffers from a progressive
     impairment such as Huntington’s disease that is not
     diagnosed until long after the alleged onset date of
     the claimed disability. This difficulty does not
     disappear when an ALJ bypasses a determination of
     present disability and instead denies a DIB claim based


                                 18
     on a finding that the claimant was not disabled as of
     her date last insured. Accordingly, there is no good
     reason why SSR 83-20 should be limited to cases in
     which the ALJ makes a determination of disability
     before addressing the onset date of disability.


Ryan, 

 4 8 , slip o p . at 18-19.   That reasoning applies

with equal force in this case.



                              Conclusion

     Having carefully reviewed the administrative record and the

arguments advanced by both the Commissioner and claimant, the

court concludes that there is not substantial evidence in the

record to support the ALJ’s determination that claimant is not

entitled to disability benefits. The ALJ erred in concluding

that because there is no objective medical evidence prior to

September 3 0 , 1979, to support a medically determinable mental

impairment, he was precluded from finding that claimant was

disabled prior to that date.



     In resolving claimant’s application for disability benefits,

the ALJ should first determine whether claimant is presently

disabled.   Then, if he concludes that claimant is disabled, he

should determine the onset date of that disability.       See, e.g.,

Nelson v . Commissioner of Social Security, 

 at *2


                                   19
(D. M e . May 2 4 , 2005) (“The administrative law judge did not

follow this procedure. Rather than determining that the

plaintiff was disabled as of the date of decision and then

proceeding to fix the date of onset, he erroneously assessed

whether, for purposes of SSD, she was disabled as of her DLI.

This was a regrettable error.”).



     Finally, the court notes that the lack of objective medical

evidence of a disabling impairment prior to the expiration of

claimant’s insured status does not necessarily doom his claim for

disability benefits. When objective medical evidence is lacking,

the ALJ must evaluate other evidence to infer the onset date of a

claimant’s disability.   See generally SSR 83-20.    In this case,

such evidence takes the form of claimant’s testimony and the

professional opinions of his treating physicians (at least one of

whom - D r . Kissmeyer - has opined that claimant was totally

disabled by reason of his PTSD prior to September of 1979).        And,

as noted above, if the ALJ concludes that claimant is presently

disabled, he should give serious consideration to employing the

services of a qualified medical consultant to assist him in

inferring the date on which the symptoms caused by claimant’s

PTSD likely became disabling.




                                 20
      For the foregoing reasons, claimant’s motion to reverse the

decision of the Commissioner (document no. 9) is granted to the

extent it seeks remand to the ALJ for further proceedings.      In

all other respects, claimant’s motion is denied.    The

Commissioner’s motion to affirm his decision (document no. 10) is

denied.   Pursuant to sentence four of 

(g), this

matter is hereby remanded to the ALJ for further proceedings

consistent with this order.    The Clerk of Court shall enter

judgment in accordance with this order and close the case.


      SO ORDERED.



                               Steven J./McAuliffe
                               United States District Judge

August 28, 2008

cc:   Raymond J. Kelly, Esq.
      T. David Plourde, Esq.




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