Bica v . SSA 09-CV-014-SM 11/09/09
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Susan E . Bica,
Claimant
v. Civil N o . 09-cv-014-SM
Opinion N o . 2009 DNH 171
Michael Astrue, Commissioner
of Social Security,
Respondent
O R D E R
Pursuant to 42 U.S.C. § 405(g), Susan Bica moves for an
order reversing the Commissioner’s decision to deny her
application for Social Security disability insurance benefits
under Title II of the Social Security Act,
42 U.S.C. § 423. In
the alternative, she asks the court to remand the case. The
Commissioner moves for an order affirming his decision. For the
reasons given, the matter is remanded to the Administrative Law
Judge (“ALJ”) for further proceedings consistent with this
opinion.
Standard of Review
The applicable standard of review in this case provides, in
pertinent part:
The [district] court shall have power 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. The findings of
the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive
. . .
42 U.S.C. § 405(g). However, the court “must uphold a denial of
social security disability benefits unless ‘the [Commissioner]
has committed a legal or factual error in evaluating a particular
claim.’ ” Manso-Pizarro v . Sec’y of HHS,
76 F.3d 1 5 , 16 (1st
Cir. 1996) (quoting Sullivan v . Hudson,
490 U.S. 8 7 7 , 885
(1989)).
Background
The parties have submitted a Joint Statement of Material
Facts (document n o . 1 3 ) . That statement is part of the court’s
record, and the factual background will be summarized here only
to the extent necessary to provide context for this decision.
For purposes of establishing eligibility for Social Security
disability insurance benefits, Bica’s last date insured was June
3 0 , 2003. On September 1 9 , 2006, she applied for disability
insurance benefits, alleging an onset date of June 2 9 , 2003,
which was the last time she engaged in substantial gainful
activity. She claimed she was unable to work due to a ruptured
disc, anxiety, depression, and headaches. As Bica suffered her
2
ruptured disc in 2004, after her last date insured, all agree
that she is not entitled to benefits based on that impairment.
Starting in May of 2001 and continuing through 2006, Bica
was treated as an outpatient at the New England Center for
Comprehensive Counseling Services by D r . Priscilla Cusi, a
psychiatrist.1 Her chief complaints were depression and anxiety.
Dr. Cusi initially diagnosed Bica as being bipolar, but
subsequently characterized her as having a “mood disorder.” Dr.
Cusi provided therapy and prescribed a variety of medications.
In April and May of 2003, Bica was examined by Nurse Practitioner
James Harris. In April she complained of anxiety, and in May she
complained of headaches. As noted, she was last insured on June
3 0 , 2003.
Between the date she was last insured and the time she
applied for disability insurance benefits over three years later,
Bica was treated extensively for her mood disorder and headaches.
For her mood disorder she saw D r . Cusi and then saw D r . T.M.
Cadorette of Monadnock Behavioral Health. For her headaches, she
saw a neurologist, D r . Eugene Lasser, and Sharon Lockwood, PA,
both of Foundation Neurology, as well as D r . Tatiana Nabioullina.
1
From May of 2001 through June of 2003, Bica saw D r . Cusi
monthly. From April of 2004 through December of 2006, Bica saw
Dr. Cusi another thirty-four times.
3
At the time of her application, Bica was taking Lexapro and
Trilepta for depression, Lorazopram for anxiety, and Emerge,
Nadolol, and Protonix for headaches.
In addition to medical documentation from most of Bica’s
treating sources, the record includes a “Psychiatric Review
Technique” form directed to the period from June 2 9 , 2003,
through June 3 0 , 2003; 2 “Mental Residual Functional Capacity
Assessment” forms dated November 1 6 , 2007 (by D r . Cadorette),
November 2 1 , 2007 (by D r . Nadine Dubrule, a treating physician),
and December 1 , 2007 (by D r . Susan Vonderheide, a treating
psychologist); a June 1 6 , 2008, “Headaches Residual Functional
Capacity Questionnaire” completed by PA Lockwood; an independent
occupational health consultation assessment dated December 1 4 ,
2007; 3 and opinion letters from D r . Vonderheide dated June 2 0 ,
and July 3 0 , 2008. 4
2
That form, completed by medical consultant D r . Nicholas
Kalfas, is all but blank. The principal notation says: “The only
source available is from D r . Cusi, whose notes are barely legible
and which do not provide sufficient information from which to
ascertain the claimant’s function during the period in question.”
(Tr. at 296.)
3
In that assessment, D r . Barbara O’Dea wrote: “Her [Bica’s]
psychiatric and neurological difficulties of poor memory,
attention and learning difficulties, and low stress tolerance,
would make any further efforts at full time work even if
modified, very difficult.” (Tr. at 335.)
4
On June 2 0 , D r . Vonderheide opined that Bica was “still
unable to work either part-time or full-time . . . [and] will
4
After conducting a hearing at which Bica was represented by
counsel, the ALJ issued a decision in which he reported the
following relevant findings:
3 . Through the date last insured, the claimant had the
following severe impairments: a mood disorder and
migraine headaches (20 CFR 404.1520(c)).
4 . Through the date last insured, the claimant did not
have an impairment or combination of impairments that
met or medically equaled one of the listed impairments
in 20 CFR Part 4 0 4 , Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
5 . After careful consideration of the entire record,
the undersigned finds that, through the date last
insured, the claimant had the residual functional
capacity to perform medium work as defined in 20 CFR
404.1567(c) except for more than semi-skilled tasks.
7 . The claimant was not under a disability as defined
in the Social Security Act, at any time from June 2 9 ,
2003, the alleged onset date, through June 3 0 , 2003,
the date last insured (20 CFR 404.1520(f)).
continue to suffer from long-term mental and physical handicaps
which will prevent her from working for any employer.” (Tr. at
373.) On July 3 0 , she opined that “Ms. Bica has been unable to
work full-time since early 2003 . . . due to a combination of
physical and psychiatric factors, including back and neck
problems, as well as Major Depression, Obsessive-Compulsive
Disorder, as well as difficulty with her cognition at times.”
(Id. at 411.) D r . Vonderheide’s treatment notes, however, are
not part of the record.
5
(Administrative Transcript (hereinafter “Tr.”), at 12-15
(emphasis added).) That i s , the ALJ did not determine whether
Bica was disabled at the time of the hearing.
Discussion
According to Bica, the ALJ’s decision should be reversed,
and the case remanded, because the ALJ did not: (1) consider all
the medical evidence in the record; (2) properly develop the
record; (3) consider all of her impairments and their combined
effect on her ability to work; or (4) recognize and consider non-
exertional limitations in assessing her residual functional
capacity. She further argues that the ALJ’s decision is not
supported by substantial evidence. The Commissioner disagrees,
categorically.
To be eligible for disability insurance benefits, a person
must: (1) be insured for such benefits; (2) not have reached
retirement age; (3) have filed an application; and (4) be under a
disability. 42 U.S.C. §§ 423(a)(1)(A)-(D). The only question in
this case is whether the ALJ erred in determining that Bica was
not under a disability at a time when she was insured.
For the purpose of determining eligibility for disability
insurance benefits,
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[t]he term “disability” means . . . inability 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.
42 U.S.C. § 423(d)(1)(A).
In order to determine whether a claimant is disabled for the
purpose of determining eligibility for disability insurance
benefits, an ALJ is required to employ a five-step process. See
20 U.S.C. §§ 404.1520.
The steps are: 1 ) if the [claimant] is engaged in
substantial gainful work activity, the application is
denied; 2 ) if the [claimant] does not have, or has not
had within the relevant time period, a severe
impairment or combination of impairments, the
application is denied; 3 ) if the impairment meets the
conditions for one of the “listed” impairments in the
Social Security regulations, then the application is
granted; 4 ) if the [claimant’s] “residual functional
capacity” is such that he or she can still perform past
relevant work, then the application is denied; 5 ) if
the [claimant], given his or her residual functional
capacity, education, work experience, and age, is
unable to do any other work, the application is
granted.
Seavey v . Barnhart, 276 F.3d 1 , 5 (1st Cir. 2001) (citing
20
C.F.R. § 416.920, which outlines the same five-step process as
the one prescribed in
20 C.F.R. § 1520).
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The claimant bears the burden of proving that she is
disabled. See Bowen v . Yuckert, 482 U.S. 1 3 7 , 146 (1987). She
must do so by a preponderance of the evidence. See Mandziej v .
Chater,
944 F. Supp. 1 2 1 , 129 (D.N.H. 1996) (citing Paone v .
Schweiker,
530 F. Supp. 8 0 8 , 810-11) (D. Mass. 1982)). Finally,
In assessing a disability claim, the [Commissioner]
considers objective and subjective factors, including:
(1) objective medical facts; (2) plaintiff’s subjective
claims of pain and disability as supported by the
testimony of the plaintiff or other witness; and (3)
the plaintiff’s educational background, age, and work
experience.
Mandziej, 944 F. Supp. at 129 (citing Avery v . Sec’y of HHS,
797
F.2d 1 9 , 23 (1st Cir. 1986); Goodermote v . Sec’y of HHS,
690 F.2d
5 , 6 (1st Cir. 1982)).
As noted, claimant advances five separate grounds for
remanding this case. One, however, is dispositive. In support
of her argument that the ALJ’s decision is not supported by
substantial evidence, Bica cites three cases from this district,
along with Social Security Ruling 83-20, 1983 WL 31249 (S.S.A.),
for the proposition that “if a question arises as to when the
claimant’s impairments become so severe as to render the claimant
disabled, the ALJ should consult a medical expert.” (Clm’t’s
Memo. of Law, at 14.) In light of Moriarty v . Astrue, N o . 07-cv-
342-SM,
2008 WL 4104139 (D.N.H. Aug. 2 8 , 2008), and Ryan v .
8
Astrue, N o . 08-cv-17-PB, 2008 WL 3925081 (D.N.H. Aug. 2 1 , 2008),
claimant’s argument carries the day.
SSR 83-20 points out that “[d]etermining the proper onset
date is particularly difficult, when, for example, the alleged
onset and the date last worked are far in the past and adequate
medical records are not available.” 1983 WL 31249, at * 2 . This
case presents just such a situation. In her 2006 application,
Bica claimed a 2003 onset date. The record does include notes
made by Bica’s treating psychiatrist, D r . Cusi, from 2001 through
2003, but D r . Kalfas (Tr. at 2 9 6 ) , D r . Cadorette (id. at 3 4 1 ) ,
the ALJ (id. at 3 2 ) , and claimant’s counsel (id.) have all
commented on the illegibility of D r . Cusi’s notes, and D r . Kalfas
went even further, stating that those notes “do not provide
sufficient information from which to ascertain the claimant’s
function during the period in question” (id. at 2 9 6 ) . Moreover,
there are no appraisals, by medical professionals, of the impact
of Bica’s various impairments on her ability to perform work-
related activities that are contemporaneous with the alleged
onset date. Finally, while Bica’s counsel argued at the hearing
that she had “five or six doctors agreeing that [Bica was] 100
percent disabled” at the time of the hearing (id. at 2 8 ) , which
was certainly enough to place Bica’s current condition at issue,
the ALJ did not determine whether Bica was disabled at the time
9
of the hearing, and, obviously, did not consult a medical expert
to determine an onset date. That was a legal error.
As Judge Barbadoro explained in Ryan, the fact that the ALJ
did not determine whether Bica was disabled at the time of the
hearing did not obviate the need to determine an onset date.
Rather, the ALJ had an obligation first to address the issue of
present disability and then, if necessary, establish the onset
date. 2008 WL 3925081, at *7-*8. This case may not involve
medical conditions that are as obviously progressive as the
claimant’s Huntington’s Disease in Ryan, but Bica’s impairments
have some commonalities with the claimant’s mental illness in
Moriarty. Furthermore, Bica testified that she had suffered from
headaches, depression, and anxiety since her youth (Tr. at 54-
5 5 ) , and the ALJ himself noted that “[m]ore recent medical
records establish possible worsening in her medical condition,”
which reinforces the idea that Bica’s impairments are, like those
in Ryan, progressive in nature. In sum, this case must be
remanded so that the ALJ can determine, in the first instance,
whether Bica is currently under a disability and then, if
necessary, determine an onset date with the assistance of a
medical expert.
10
Conclusion
For the reasons given, claimant’s motion to remand for a new
administrative determination (document no. 11) is granted, and
the Commissioner’s motion to affirm his decision (document no.
12) is denied. Pursuant to sentence four of 42 U.S.C. § 405(g),
this matter is remanded to the ALJ for further proceedings. The
Clerk of the Court shall enter judgement in accordance with this
order and close the case.
SO ORDERED.
Steven J./McAuliffe
Chief Judge
November 9, 2009
cc: Janine Gawryl, Esq.
Robert J. Rabuck, Esq.
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