Wilson v. SSA

Wilson v. SSA                   13-CV-285-PB       5/6/14
                    UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW HAMPSHIRE


Richard Arthur Wilson

     v.                                 Civil No. 13-cv-285-PB
                                        Opinion No. 

 P
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration


                        MEMORANDUM AND ORDER

     Richard Arthur Wilson seeks judicial review of a ruling by

the Commissioner of the Social Security Administration (“SSA”)

denying his application for Disability Insurance Benefits

(“DIB”).   Wilson claims that the Administrative Law Judge

(“ALJ”) erred in failing to call a medical advisor to assist him

in determining the onset date of his claimed disability.

     For the reasons set forth below, I vacate the decision of

the Commissioner and remand for further administrative

proceedings.


                          I.   BACKGROUND 1

A.   Procedural History

     Wilson applied for DIB on May 14, 2010, 2 claiming that he

became disabled on July 1, 1994 due to depression, post-

1
  The background facts are presented in the parties’ Joint
Statement of Material Facts (Doc. No. 15) and are summarized
here. I also rely on the Administrative Transcript (Doc. No.
7), citations to which are indicated by “Tr.”.
traumatic stress disorder (PTSD), social anxiety disorder,

obsessive compulsive disorder (OCD), and generalized anxiety

disorder. 3   Tr. at 28.   He was fifty-six years old at the time of

his application.    The SSA determined that Wilson’s DLI was

December 31, 1999.    After reviewing his application, it denied

his DIB claim on September 23, 2010.     

   Wilson requested a

hearing before an ALJ, which was held on December 13, 2011.       He

appeared by video and was represented by an attorney.     Tr. at

23.   On December 23, 2011, the ALJ issued a decision finding

that Wilson had not been disabled prior to his DLI.     The Appeals

Council denied Wilson’s request for review on April 4, 2013.

Accordingly, the ALJ’s decision is the final decision of the

Commissioner.

B.    Relevant Medical History

      1.   October 2005 – October 2009

      Wilson’s medical record includes notes from seven hospital

visits prior to his first report of a mental impairment.     On

October 26, 2005, Wilson visited the emergency room at Dartmouth

Hitchcock Medical Center complaining of right shoulder pain

2
  Wilson previously applied and was rejected for Supplemental
Security Income (“SSI”) because his assets exceeded the relevant
threshold for those benefits. Tr. at 29.
3
  Wilson initially alleged that he became disabled on July 1,
1993, but subsequently amended the alleged disability onset date
to July 1, 1994.
                                2
after a fall.   Tr. at 291.   He was diagnosed with a right mid-

shaft clavicle fracture and a right ankle sprain.      Treatment

notes from this visit and four follow-up appointments report

that Wilson appeared healthy apart from his injuries and was

alert, cooperative, ambulatory, neurologically intact, and in no

acute distress.

     Wilson next sought medical care three years later.      On

October 13, 2008, he visited his primary care physician, Dr.

Ellen Eisenberg, M.D., complaining of various chronic and acute

medical problems.   He stated that his last physical exam had

occurred when he was in the service. 4   Tr. at 275.   Wilson

subsequently visited Physician Assistant James Gosselin on

October 15, 2009 with complaints of chronic low back pain.        Dr.

Eisenberg’s and Mr. Gosselin’s notes from these visits indicate

that Wilson was healthy and presented with a stable mood, no

depression, and no psychological symptoms.

     2.   November 2009 – June 2011

     After Wilson first reported psychological difficulties to

his medical providers in November 2009, multiple sources

documented opinions regarding his impairments.    These sources

4
 Wilson reported to the SSA that he had worked as a civilian
electrician from 1976 to 1994. Tr. at 130. His record also
reports a history of earnings between 1967 and 1975. Tr. at 81.
Assuming that the “service” to which Wilson refers is military
in nature, it presumably occurred prior to 1976.
                                3
include James Gosselin; psychiatrists Christine Finn, M.D., and

Douglas Noordsy, M.D.; and psychologists Claudia Zayfert, Ph.D.,

Leslie Bryant, Ph.D, and Michael Schneider, Psy.D.     Wilson also

provided evidence of his own functional limitations.

            a.   Physician Assistant Gosselin

       On November 30, 2009, Wilson reported to Mr. Gosselin that

he experienced difficulty being around people and had struggled

with anxiety all of his life.     He recounted that it had become

such a problem that he eventually quit his job in 1994.     Wilson

stated that he had recently grown sadder, felt worthless, had

lost interest in activities that he previously enjoyed, and had

racing thoughts that he dealt with by falling asleep on his

couch to old sitcoms.     After noting that Wilson was alert and

oriented with respect to place, time, and other people, Mr.

Gosselin diagnosed Wilson with depression and anxiety,

prescribed Lexapro, 5 and referred Wilson to Dr. Finn.   Tr. at

265.

       Wilson returned to Mr. Gosselin on at least three occasions

over the next fourteen months.     During these visits, he noted

that he was able to walk his dog, split firewood, and take care

of his granddaughter three days a week.     On one occasion, Mr.


5
  Lexapro is an antidepressant. Dorland’s Illustrated Medical
Dictionary 654, 1047 (31st ed. 2007).
                                4
Gosselin noted that Wilson was a “healthy male with stable

depression and anxiety.”   On at least one occasion, Wilson

showed no symptoms of depression and was not in acute distress.

Mr. Gosselin noted Wilson’s history of anxiety and depression,

but was unable to determine a particular onset date for his

impairments.

     On June 27, 2011, Mr. Gosselin and Dr. Eisenberg together

opined that Wilson was markedly limited in his ability to

respond appropriately to usual work situations and to changes in

a routine work setting, as well as in his ability to interact

appropriately with the public, with supervisors, and with

coworkers.   As an example, they noted that Wilson required

medication before leaving his house and had difficulty going out

to pick up a pizza.

          b.   Dr. Finn

     Dr. Finn examined Wilson on two occasions in January 2010.

During these visits, Wilson complained of lifelong anxiety and

difficulty managing social situations.   He reported that he

feared embarrassing himself and drawing attention to himself,

had thoughts that everyone was looking at him, had difficulty

being in crowds, had a tendency to rethink things he had said,

had anxious ruminations that interfered with his sleep, suffered

from headaches and sweaty palms, and checked to see that his
                                 5
garage door was closed up to twenty times a day.     Wilson stated

that he was experiencing increasing anxiety due to an upcoming

court appearance and the prospect of participating in a social

anxiety group.     At his first appointment, he noted that Lexapro

took the edge off his depression, but residual symptoms

remained.   At the next appointment, Wilson denied any symptoms

of depression and reported an improvement in his mood.

     Dr. Finn observed that Wilson was stressed with an anxious

mood and affect.    She noted that he was alert and oriented, with

good judgment, good insight, a linear and goal-directed thought

process, an appropriate fund of knowledge, and intact attention

and memory.   Dr. Finn concluded that Wilson’s symptoms were

consistent with dysthymia, 6 but he was “not greatly functionally

impaired by it.”    Tr. at 262.   She also opined that Wilson

appeared to have generalized anxiety disorder, social phobia,

specific phobia, and obsessive compulsive disorder (OCD). 7     She


6
  Dysthymia involves a “[d]epressed mood for most of the day, for
more days than not . . . .” Am. Psychiatric Ass’n, Diagnostic
and Statistical Manual of Mental Disorders 168 (5th ed. 2013)
[hereinafter DSM-V].
7
  Generalized anxiety disorder involves “excessive anxiety and
worry (apprehensive expectation) about a number of events or
activities.” 

. Social phobia, also known as social
anxiety disorder, involves “a marked, or intense, fear or
anxiety of social situations in which the individual may be
scrutinized by others.” 

. Specific phobia involves
“[m]arked fear or anxiety about a specific object or situation .
                                6
assigned Wilson a Global Assessment of Functioning (“GAF”) score

of sixty. 8    Dr. Finn then referred Wilson to Drs. Noordsy and

Zayfert for further treatment.     Tr. at 251, 257.

              c.   Dr. Noordsy

     Wilson visited Dr. Noordsy monthly between January and June

2010 and quarterly for the remainder of the year.     He informed


. . .” 

. Obsessive compulsive disorder involves
either “[r]ecurrent and persistent thoughts, urges, or images
that are experienced . . . as intrusive and unwanted, and that
in most individuals cause marked anxiety and distress,” or
“[r]epetitive behaviors . . . or mental acts . . . that the
individual feels driven to perform in response to an obsession
or according to rules that must be applied rigidly,” or both.

.
8
  A GAF score of fifty-one to sixty indicates “[m]oderate
symptoms (e.g., flat affect and circumstantial speech,
occasional panic attacks) OR moderate difficulty in social,
occupational, or school functioning (e.g., few friends,
conflicts with peers or co-workers).” Am. Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 34 (4th
ed. text rev. 2000). In contrast, a score of forty-one to fifty
indicates “[s]erious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) OR any serious
impairment in social, occupational, or school functioning (e.g.,
no friends, unable to keep a job).” 

 A score of sixty-one
to seventy indicates “[s]ome mild symptoms (e.g., depressed mood
and mild insomnia) OR some difficulty in social, occupational,
or school functioning (e.g., occasional truancy, or theft within
the household), but generally functioning pretty well, has some
meaningful interpersonal relationships.” 

 The SSA has
remarked that the GAF Scale “does not have a direct correlation
to the severity requirements in our mental disorders listings,”
Revised Medical Criteria for Evaluating Mental Disorders and
Traumatic Brain Injury, 

, 50,764-65 (Aug. 21,
2000), and the American Psychiatric Association no longer
recommends its use due to “its conceptual lack of clarity . . .
and questionable psychometrics in routine practice.” DSM-V,
supra note 6, at 16.
                                7
Dr. Noordsy that he had been sexually abused by a family priest

at around age ten and had stopped working in 1994 due to

persistent anxiety about returning to work the following day.

Wilson noted that he had always experienced social discomfort,

particularly in situations where he was alone with a man,

because he was afraid that someone would make an advance on him.

Consequently, all of his friends were women.   Wilson reported

that he had experienced worsening depression for several years

in addition to anxiety and nervousness around strangers.

Although his symptoms had improved since he began taking

Lexapro, Wilson nevertheless told Dr. Noordsy that he wished he

could have a “cell to stay in where he can be left alone.”

Wilson informed Dr. Noordsy that he was overwhelmed and anxious

when challenged by stressors or changes in routine.    He noted

that he was fine while at home, enjoyed weekly visits with his

parents, and could shop for groceries at IGA or Walmart, but did

not visit other stores because of social discomfort.    He

reported that he did not want to use the buttons on credit card

machines because he felt as if everyone in the room was staring

at him.   Wilson subsequently reported that he only left the

house to visit his therapist.

     After several sessions with Dr. Noordsy, Wilson informed

him that he still had symptoms of anxiety which had improved
                                 8
somewhat.    He noted that Lexapro helped him to maintain a

generally good mood, but it did not significantly affect his

anxiety.    Wilson also reported that his OCD symptoms had

improved and that he had learned to let go of compulsions much

more quickly.    He reported that he had stopped participating in

therapy with Dr. Zayfert in March due to her suggestion that he

participate in group therapy and vocational training, which made

him anxious and unable to sleep.       In contrast, medication

combined with psychotherapy with Dr. Bryant had helped ease his

depression.    During one visit in April, Wilson reported that he

had cried the day before, felt more down about losses, and had

suicidal thoughts every day without a plan or intent to act on

them.   In the following months, Wilson reported that he was

having no abnormal or psychotic thoughts.       Thoughts of suicide

returned in September, but without psychotic symptoms.       Wilson

agreed to follow Dr. Noordsy’s advice to continue exercising

regularly as a means of managing his anxiety and depression.       He

also told Dr. Noordsy that he was applying for disability

benefits and considering starting his own business.

     Dr. Noordsy noted that Wilson showed substantial

improvement on Lexapro but opined that psychotherapy was likely




                                   9
to be the most helpful treatment.    He prescribed Buspirone 9 to

Wilson in March, increased Wilson’s dose of Lexapro in May, and

prescribed Clonazepam 10 in June for extreme anxiety before

increasing the dosage of that drug in September.    Tr. at 232.

Wilson reported that he felt much better as a result of the

increased dosage of Lexapro and had not had an “episode” in more

than two weeks.

     Dr. Noordsy noted on several occasions that Wilson was

oriented times four; 11 had a linear, logical, coherent, and goal-

directed thought process; normal memory; fair to good judgment,

attention, and concentration; intact, logical, and coherent

associations; calm or full affect with some tension; an anxious

and sad mood that showed occasional improvement; and suicidal

thoughts without psychotic symptoms.    He reported that Wilson

was preoccupied with public appearances.    Dr. Noordsy diagnosed




9
  Buspirone is “an antianxiety agent used in the treatment of
anxiety disorders and for short-term relief of anxiety symptoms
. . . .” Dorland’

, at 269.
10
  Clonazepam is used “as an antipanic agent in the treatment of
panic disorders . . . .” Id. at 379.
11
  Orientation times four refers to recognition of one’s
temporal, spatial, personal, and situational environment. See,
e.g., Abad v. Astrue, No. 2:11-CV-00629, 

, at *5
(S.D.W. Va. Sept. 5, 2012).

                                10
Wilson with social anxiety disorder, major depression, 12 OCD, and

possibly a dependent personality disorder. 13   He assigned Wilson

a current GAF score of fifty and determined that his highest GAF

score in the past year was seventy, 14 indicating significant

fluctuation in Wilson’s symptoms over the course of his

treatment.    Dr. Noordsy concluded that Wilson had experienced

lifelong social anxiety that likely preceded the sexual abuse at

age ten.

            d.   Dr. Zayfert

       Wilson visited Dr. Zayfert on at least six occasions

between January and March of 2010 for evaluation and treatment

for depression, social anxiety, and OCD.     He informed Dr.

Zayfert that he had been depressed for five years, but the

depression had worsened in October 2009 due to family

difficulties.     He noted that Lexapro helped mitigate his

depressive symptoms.     Wilson reported that he had always been

anxious around people, had avoided school, had few friends,

feared being the center of attention, experienced anxiety in

12
  Major depressive disorder involves “either depressed mood or
the loss of interest or pleasure in nearly all activities . . .
.” DSM-V, supra note 6, at 163.
13
  A dependent personality disorder “is a pattern of submissive
and clinging behavior related to an excessive need to be taken
care of.” Id. at 645.
14
     See supra note 8 for a narrative description of these scores.
                                  11
daily social situations, and was unable to work due to his

anxiety, which also caused him severe distress.   Wilson further

noted that he checked the locks in his home eight to twenty

times per day, filled in grooves in the dirt created by his

granddaughter’s bike, always parked his car in the same place,

and kept his wood pile neat.   He explained that this behavior

did not interfere much with his daily functioning, primarily

because he did very little.    Wilson told Dr. Zayfert that he was

surprised to learn that his wife, whom he relied on for

financial support, had filed for divorce.   He added that his

family had suggested that he apply for disability benefits.

Wilson voiced an interest in volunteering as a means of learning

to cope with being around people.

     Dr. Zayfert noted that Wilson was cooperative and fidgety

with rapid speech, alert and attentive concentration, normal

memory, a logical and coherent thought process, good judgment,

fair insight, intact associations, a broad affect, and a

euthymic mood.    She reported that Wilson became less avoidant in

later sessions.   She also noted that he began experiencing

suicidal thoughts.   Dr. Zayfert diagnosed Wilson with social

phobia and major depressive disorder in partial remission.    She

concluded that Wilson’s anxiety had been present most of his

life and had contributed to significant impairment in his social
                                 12
and occupational functioning, including leading to his

“retirement” from work.     Dr. Zayfert opined that Wilson suffered

from significant anxiety when he believed that attention was

focused upon him.   She determined that Wilson’s current and

highest GAF score in the past year was fifty.    According to Dr.

Zayfert, Wilson was most likely to benefit from group treatment

for social anxiety, though he remained unclear about his

treatment goals and motivation for change.    She specifically

noted that Wilson “voiced minimal motivation to engage in

treatment for social anxiety” and that his major life stressors

impeded his readiness to engage in active treatment.

          e.   Dr. Bryant

     Dr. Bryant provided individual psychotherapy to Wilson once

or twice a week between April 2010 and August 2011.    On May 12,

2011, she wrote a letter to Wilson’s attorney noting her

impressions of Wilson’s impairments and functionality.

According to Dr. Bryant’s letter, Wilson first realized he

needed help for mental health issues when his ex-wife

unexpectedly announced that she was seeking a divorce.    Up to

that point, Wilson had “avoided medical or mental health

treatment at all costs” due to his extreme social discomfort at

the thought of being examined by doctors.    Dr. Bryant opined



                                  13
that Wilson suffered from PTSD 15 stemming from sexual abuse,

superimposed on debilitating social anxiety that had preceded

the trauma.   She noted that it was very difficult for Wilson to

leave home and that he required a tranquilizer to go to the

grocery store.   According to Dr. Bryant, Wilson’s symptoms were

only marginally improved by medication.   She did not believe

that he was capable of providing for himself.

     On June 1, 2011, Dr. Bryant reported that Wilson had

extreme limitations in his ability to interact appropriately

with supervisors and coworkers and to respond appropriately to

usual work situations and changes in a routine work setting,

moderate limitations in his ability to interact with the public,

and no limitations in his ability to understand, remember, and

carry out instructions.   She noted that Wilson rarely left home

due to his severe social anxiety and PTSD.   Dr. Bryant reported

that these limitations were first present in October 1994 and

currently prevented him from becoming employed.

     On August 30, 2010, Dr. Bryant diagnosed Wilson with PTSD

and generalized social phobia.   She noted that Wilson was unable


15
  PTSD involves “[e]xposure to actual or threatened death,
serious injury, or sexual violence” resulting in certain
characteristic symptoms that create “clinically significant
distress or impairment in social, occupational, or other
important areas of functioning.” DSM-V, supra note 6, at 271-
72.
                                14
to function in social situations, avoided stress by remaining

isolated at home, and had avoided medical treatment for years

due to his social anxiety and PTSD.    She opined that these

limitations had been present since 1993.

          f.     Dr. Schneider

     On September 23, 2010, state agency medical consultant Dr.

Michael Schneider reviewed Wilson’s complete medical record and

concluded that it contained no medical evidence from Wilson’s

alleged onset date to his DLI. 16   Noting that Wilson’s mental

health treatment began in 2010, Dr. Schneider stated that he was

unable to substantiate the existence of a severe impairment

prior to Wilson’s DLI.

          g.   Wilson’s Function Reports 17

     In two function reports dated August 16, 2010 and January

13, 2011, Wilson reported that he lived alone on his sixteen-

acre property.    He noted that he frequently walked his dog, rode

his bicycle on a rail trail, did housework and laundry, prepared

frozen dinners, did small chores outside, checked for mail, and

16
  Although Wilson alleges that he became disabled on July 1,
1994, see supra note 3, Dr. Schneider limited his assessment to
the period between December 31, 1994 and December 31, 1999. Tr.
at 172. The discrepancy is immaterial, as there is no evidence
in the record from the latter half of 1994 that would have
changed Dr. Schneider’s conclusions.
17
  These reports include entries written by Wilson along with
several written by his attorney on his behalf.
                                15
watched television.   He stated that he had a hard time falling

asleep, but was able to do so on the sofa in front of the

television.   Before his ex-wife left him, she prepared all his

meals and did most of the housework.    She continued to help him

with chores, appointments, and grocery shopping once a month.

Wilson reported that if he had to go to the grocery store alone,

he would choose to go at a time when there were few people in

the store.    Other than food, he purchased everything he needed

on the internet.   The only times that Wilson left his land were

to ride on the rail trail, go to therapy, and shop with his ex-

wife.

     Wilson recounted that despite difficulties, he had been

able to be around other people and work in the past.   He used to

bicycle with his sons when they were younger, but he is no

longer in contact with them.    Wilson also noted that he used to

go boating with his ex-wife, but he sold the boat because

boating required contact with people.   He stated that he became

extremely stressed when he talked to anyone and by the mid-1990s

had discontinued all social relationships except for with his

ex-wife.   He had no friends and had built his house in the

middle of his property so that he would not have to make

friends.   He dreaded any upcoming interactions with people and

continued to have dreams that provoked anxiety about work.
                                 16
Wilson complained of problems concentrating and getting along

with others.   He reported extreme fear when he was around other

people, especially if he was the center of attention.      Wilson

stated that he avoided men, particularly in confined areas such

as cars, because of his fear of being molested.

     In a Disability Report dated October 20, 2010, Wilson’s

attorney stated that Wilson avoided all public interaction, did

not go to restaurants or movies, and isolated himself in his

home to avoid seeing his neighbors.

C.   Administrative Hearing – December 13, 2011

     At the hearing, Wilson testified that he had been sexually

molested as a child and had only realized its impact after

beginning psychiatric treatment.     Tr. at 348.   He noted that he

did not like being the center of attention and felt extremely

uncomfortable around other people, especially men.     He first

realized he had anxiety after telling a doctor of the frequent

episodes in which he felt extremely nervous and uncomfortable,

with chest pain and sweaty hands.

     Wilson testified that he stopped working in July 1994

because of anxiety.   Tr. at 342-43.    He had cut back his

workweek to four days between 1992 and 1994, but still spent

every weekend worrying about returning to work on Monday.

Wilson noted that he did not pursue treatment or go to the
                                17
hospital, even when he was experiencing back pain, because he

was too nervous to see a doctor.       He reported that from 1994 to

1999 he did not go to church or visit relatives.      He did not

attend his son’s school events because there were too many

people there.    Instead, Wilson reported that he preferred to

stay at home and use the computer.      He noted that his ex-wife

did all the shopping in the mid to late 1990s.      Later, he

occasionally accompanied her on shopping trips.

       Wilson reported that he always felt that his neighbors were

watching him when he was outside of his home.      Consequently, he

purchased sixteen acres of property around 2001 and placed his

mobile home in the middle of the property, 400 feet from his

nearest neighbors, to avoid interacting with them.      Tr. at 345,

359.

       Although a VE attended the hearing, the ALJ did not solicit

her testimony.    Tr. at 363.

D.     The ALJ’s Decision

       In her decision dated December 23, 2011, the ALJ first

found that Wilson’s DLI was December 31, 1999.      She then

proceeded with the five-step sequential evaluation process set

forth in 

(a)(4) to determine whether an

individual is disabled.     At step one, the ALJ found that Wilson

had not engaged in substantial gainful activity from July 1,
                                  18
1993 18 through his DLI, December 31, 1999.   At step two, the ALJ

relied on Social Security Ruling (SSR) 88-3 for the proposition

that a claimant bears the burden of proof at step two to prove

the existence of a medically determinable impairment, 19 as well

as SSR 96-4p for the proposition that a claimant’s symptoms are

insufficient to establish a medically determinable impairment in

the absence of medical signs or laboratory findings. 20   The ALJ


18
  Wilson’s actual alleged disability onset date is July 1, 1994.
See supra note 3.
19
  SSR 88-3 does not exist, but the proposition for which it was
cited is undoubtedly correct. See, e.g., May v. Soc. Sec.
Admin. Comm’r, 

 (1st Cir. 1997) (per curiam)
(unpublished table decision) (citing Bowen v. Yuckert, 

, 146 n.5 (1987)). Although the claimant bears the burden of
proof at this stage of the sequential evaluation process, the
ALJ may deny a claim at step two “only where ‘medical evidence
establishes only a slight abnormality or 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’ . . .
[because] the step two severity requirement is intended ‘to do
no more than screen out groundless claims.’” 

 (quoting
Barrientos v. Sec’y of Health & Human Servs., 

 (1st
Cir. 1987); McDonald v. Sec’y of Health & Human Servs., 

 (1st Cir. 1986); SSR 85-28, 

, at *3
(Jan. 1, 1985)).
20
  See SSR 96-4P, 

, at *2 (July 2, 1996). SSR 96-
4P does not discuss the determination of a claimant’s disability
onset date. The parties debate whether Wilson’s providers’
observations of his nervousness and other traits can be properly
classified as signs (which may be used to establish the
existence of a medically determinable impairment) or symptoms
(which, on their own, may not). See 

 at *1 & n.2 (citing 

-.1529, 416.928-.929) (“[S]ymptoms, such as .
. . nervousness, are an individual’s own perception or
                                19
subsequently determined that there were no medical signs or

laboratory findings prior to Wilson’s DLI to substantiate the

existence of a medically determinable impairment during that

period, and consequently found that Wilson had not been disabled

between July 1, 1993 and December 31, 1999.



                        II. STANDARD OF REVIEW

     Under 

(g), I must review the pleadings and

the administrative record and enter a judgment affirming,

modifying, or reversing the final decision of the Commissioner.

My review “is limited to determining whether the ALJ used the

proper legal standards and found facts [based] upon the proper

quantum of evidence.”    Ward v. Comm’r of Soc. Sec., 

 (1st Cir. 2000).

     The ALJ is responsible for determining issues of

credibility and for drawing inferences from evidence in the

record.   Irlanda Ortiz v. Sec’y of Health & Human Servs., 955



description of the impact of his or her . . . impairment(s). . .
. However, when any of these manifestations is a[] . . .
psychological abnormality that can be shown by medically
acceptable clinical diagnostic techniques, it represents a
medical ‘sign’ rather than a ‘symptom.’”). I need not decide
that question because, as discussed below, the ALJ only
discussed the providers’ opinions as they applied to the insured
period and made no findings whatsoever regarding whether there
was sufficient evidence to establish a medically determinable
impairment at any point after Wilson’s DLI.
                                

, 769 (1st Cir. 1991) (per curiam) (citing Rodriguez v.

Sec’y of Health & Human Servs., 

 (1st Cir.

1981)).   It is the role of the ALJ, not the court, to resolve

conflicts in the evidence.     

    The ALJ’s findings of fact are

accorded deference as long as they are supported by substantial

evidence.   

    Substantial evidence to support factual findings

exists “if a reasonable mind, reviewing the evidence in the

record as a whole, could accept it as adequate to support his

conclusion.”      

 (quoting Rodriguez, 

).   If the

substantial evidence standard is met, factual findings are

conclusive even if the record “arguably could support a

different conclusion.”      

 at 770 (citing Rodriguez Pagan v.

Sec’y of Health & Human Servs., 

 (1st Cir. 1987)

(per curiam)).

     Findings are not conclusive, however, if they are derived

by “ignoring evidence, misapplying the law, or judging matters

entrusted to experts.”     Nguyen v. Chater, 

 (1st

Cir. 1999) (per curiam) (citing Irlanda Ortiz, 955 F.2d at

769; Da Rosa v. Sec’y of Health & Human Servs., 

(1st Cir. 1986) (per curiam)).




                                     21
                           III.    ANALYSIS

      In the present case, uncontradicted medical evidence

supports Wilson’s contention that the onset of his claimed

disability preceded his DLI.      The issue presented in this appeal

is whether the ALJ was entitled to disregard that evidence and

determine that Wilson was not disabled prior to his DLI without

first consulting a medical advisor pursuant to SSR 83-20, 

 (Jan. 1, 1983).   Because the ALJ erred in failing to

consult a medical advisor, I remand the case for further

proceedings consistent with this Memorandum and Order.

A.    SSR 83-20

      Wilson contends that the ALJ contravened SSR 83-20 by

inferring, without the assistance of a medical advisor, that he

was not disabled prior to his DLI. 21    The Ruling notes that for

“disabilities of nontraumatic origin,[22] the determination of

onset involves consideration of the applicant’s allegations,

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

concerning impairment severity.”     SSR 83-20, 

, at

*2.   The “starting point in determining the date of onset of


21
  Social Security Rulings are binding on ALJs. 

(b)(1); accord McDonald, 

.
22
  There is no evidence that Wilson was subjected to any trauma
after his DLI that might have precipitated his alleged mental
impairments.
                                22
disability is the individual’s statement as to when disability

began,” which “should be used if it is consistent with all the

evidence available.”   Id. at *2-3.   The date of work stoppage is

also “frequently of great significance in selecting the proper

onset date.”   Id. at *2.   These two factors are significant,

however, only to the extent that they are “consistent with the

severity of the condition(s) shown by the medical evidence,”

which “serves as the primary element in the onset

determination.”   Id. at *1-2.   An ALJ cannot determine an onset

date in the absence of medical evidence.    Id.   Nonetheless,

     [w]ith   slowly   progressive   impairments,[23]   it  is
     sometimes   impossible   to   obtain  medical    evidence
     establishing the precise date an impairment became
     disabling.    Determining 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.       In such
     cases, it will be necessary to infer the onset date
     from the medical and other evidence that describe the
     history and symptomatology of the disease process.

Id. at *2.

     In these circumstances, SSR 83-20 specifies at least three

steps that an ALJ may, and in some circumstances must, take to

23
  The impairments alleged by Wilson fall into this category.
See, e.g., Spellman v. Shalala, 

 (5th Cir. 1993)
(anxiety and depression); Meyer-Williams v. Comm’r of Soc. Sec.,
No. 8:09-CV-1954-T-17MAP, 

, at *4 n.1 (M.D. Fla.
Feb. 17, 2011) (OCD), rep. & rec. adopted sub nom. Williams v.
Comm’r of Soc. Sec., No. 8:09-CIV-1954-T-17, 

(M.D. Fla. Mar. 8, 2011); Magnusson v. Astrue, 

(PTSD).
                                23
infer an onset date.   First, “[i]f there is information in the

file indicating that additional medical evidence concerning

onset is available, such evidence should be secured before

inferences are made.” 24   Id. at *3.   Second,

      [i]f reasonable inferences about the progression of
      the impairment cannot be made on the basis of the
      evidence in file and additional relevant medical
      evidence is not available, it may be necessary to
      explore other sources of documentation.   Information
      may be obtained [with the claimant’s consent] from
      family members, friends, and former employers to
      ascertain why medical evidence is not available for
      the   pertinent period  and  to   furnish  additional
      evidence regarding the course of the individual’s
      condition.[25]

Id.   Third, if an ALJ lacks “a legitimate medical basis” to

identify a particular onset date because the evidence regarding

onset is ambiguous, he or she “should call on the services of a

medical advisor” to assist in inferring an onset date that is

supported by a “[c]onvincing rationale.”     Id.; see also May, 

 (citing Bailey v. Chater, 

 (4th Cir.

1995); Spellman, 

; Morgan v. Sullivan, 

  The ALJ sought additional medical evidence from Dartmouth
Hitchcock Medical Center covering the period from 1994 to 1999,
but was informed that Wilson had received no treatment there
during that period. Tr. at 164-65.
25
  The ALJ did not seek Wilson’s permission to contact
individuals who knew him prior to his DLI. The best source of
such information – Wilson’s ex-wife – attended the hearing and
was acknowledged by the ALJ but was never asked to testify. See
Tr. at 337.
                                24
1079, 1082 (9th Cir. 1991)) (“[T]he evidence regarding the date

on which claimant’s mental impairment became severe is

ambiguous.    Therefore, [SSR] 83-20 required the ALJ to consult a

medical advisor.”).

B.   Application

     The ALJ did not reference SSR 83-20 in her decision.      Nor

did she attempt to determine whether Wilson is currently

disabled.    Instead, without consulting a medical advisor, she

discounted Wilson’s testimony concerning the onset of his

disability, refused to credit the uncontradicted medical

evidence on the issue, and determined without the assistance of

a medical advisor that he was not disabled as of his DLI.      The

ALJ based this determination on the fact that the record does

not contain any evidence that Wilson had sought contemporaneous

treatment for the condition that gave rise to his claimed

disability.    This was an error of law that requires remand.

     SSR 83-20 specifically contemplates the possibility that an

onset date may precede any medical treatment.    See 

, at *3 (“[I]t 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.”).    If the medical evidence from the period
                                 25
after a claimant’s DLI could permit a reasonable inference that

the claimant became disabled during the insured period, the

absence of pre-DLI medical evidence, standing alone, is not a

sufficient basis to deny benefits.   See id.; see also Bird v.

Comm’r of Soc. Sec. Admin., 

 (4th Cir. 2012)

(when pre-DLI medical records are lacking, post-DLI evidence may

be the “most cogent proof” of pre-DLI disability so long as “the

record is not so persuasive as to rule out any linkage”); Blea

v. Barnhart, 

 (10th Cir. 2006)

(same); cf. May, 

 (citing Arnone v. Bowen, 

 (2d Cir. 1989)) (“[T]he absence of medical treatment

records from the [insured] period . . . [did not] justif[y] the

ALJ’s finding that the treating source’s report was too

speculative a basis for establishing a severe

impairment.”); Moret Rivera v. Sec’y of Health and Human Servs.,

 (1st Cir. 1994) (per curiam) (unpublished table

decision) (“Medical evidence generated after a claimant’s

insured status expires may be considered for what light (if any)

it sheds on the question whether claimant’s impairment(s)

reached disabling severity before claimant’s insured status

expired.”).   To be sure, the absence of treatment during the

insured period is a factor that the ALJ may consider in making

credibility determinations.   See, e.g., Bird, 

                                26
n.2; Guranovich v. Astrue, 

 (7th Cir.

2012); Grebenick v. Chater, 

 (8th Cir. 1997).

But it cannot obviate the need to call a medical advisor where

other medical evidence in the record leaves the onset date

ambiguous.    See, e.g., May, 

.

     The evidence in this case clearly leaves that issue

ambiguous.   Although there is a gap of five years between

Wilson’s DLI and his earliest medical records, Drs. Bryant,

Finn, Noordsy, and Zayfert - the four mental health specialists

who either treated or examined Wilson - all specified that

Wilson’s mental impairments and concomitant functional

limitations existed prior to his DLI.   See Tr. at 171, 253, 259,

262, 295.    The remaining medical sources - Dr. Schneider, a non-

examining psychologist; Dr. Eisenberg, an internist; and Mr.

Gosselin, a physician assistant specializing in internal

medicine - simply stated that they were unable to specify an

onset date because Wilson first sought treatment for his mental

impairments in 2009.    See Tr. at 172, 184, 329.   That by no

means implies that these providers believed that Wilson was not

disabled prior to his DLI.    See, e.g., May, 

; Hall

v. Astrue, No. 11-CV-134-JL, 

, at *7 (D.N.H. Nov.

29, 2011), rep. & rec. adopted sub nom. Hall v. U.S. Soc. Sec.

Admin., Comm’r, 

 (D.N.H. Dec. 19,
                                 27
2011); cf. Biron v. Astrue, No. 09-40084-FDS, 

,

at *7 (D. Mass. Aug 13, 2010) (acceptable medical source

expressly concluded that claimant was asymptomatic throughout

the insured period).    Further, apart from the inference that the

ALJ drew from the fact that Wilson did not seek medical

treatment for his claimed disability until several years after

his DLI, there is no non-medical evidence in the record that

conflicts with the mental health specialists’ retrospective

opinions. 26   See May, 

.   An ALJ requires such

evidence in a case like this to determine that a claimant’s

impairments were not severe prior to his or her DLI “in the

26
  On the contrary, Wilson’s testimony – which neither the
medical sources of record nor the ALJ discredited – is
consistent with the existence of disabling mental impairments
prior to his DLI. See, e.g., Tr. at 343 (chest pain, sweating,
nervousness, hiding from others); Tr. at 345 (fear of being
looked at); Tr. at 347 (stress when around coworkers and
discomfort when within arm’s reach of men, including his own
sons); Tr. at 348 (sexual abuse as a child); Tr. at 350, 356
(reliance on wife to do household chores and errands); Tr. at
350 (cutting back work hours, constantly worrying about
returning to work); Tr. at 351 (avoidance of doctors despite
physical ailments); Tr. at 355 (panic attacks); Tr. at 357
(avoiding friends and family); Tr. at 358 (avoiding sons’ school
functions); Tr. at 361 (excessive drinking after work); Tr. at
363 (interrupted sleep); Tr. at 364 (racing thoughts). Given
Wilson’s testimony regarding his anxiety around doctors and his
fear of being examined, the dearth of medical records prior to
2005 and the lack of allegations regarding mental impairments
between October 2005 and October 2009 does not approach the
“overwhelmingly compelling non-medical evidence” that would be
necessary to render the record unambiguous. See May, 

 (quoting Rivera v. Sullivan, 

 (2d Cir.
1991)) (internal quotation marks omitted).
                                28
absence of competing medical opinions.”     Id.; accord Bird, 

.

     The Commissioner nevertheless maintains that a remand is

not required because the decision whether to call a medical

advisor was completely within the discretion of the ALJ.    The

Commissioner claims that this is so because SSR 83-20 provides

that an ALJ “should call on the services of a medical advisor”

in certain circumstances, rather than “shall” or “must” call on

those services.   See, e.g., Eichstadt v. Astrue, 

 (7th Cir. 2008) (quoting SSR 83-20, 

, at *3)

(subscribing to this view).   I disagree.   The First Circuit’s

decision in May makes clear that an ALJ is required to employ

the services of a medical advisor when the available evidence

regarding disability onset is ambiguous.     See 

(citing SSR 83-20, 

).

     In May, as in this case, the ALJ denied a claimant’s DIB

application at step two of the sequential evaluation process on

the ground that the claimant’s mental impairments were not

severe prior to his DLI.   See 

   The First Circuit remanded

for further administrative proceedings, holding that SSR 83-20

“required the ALJ to consult a medical advisor” due to the

ambiguous evidence concerning the precise date on which May’s



                                29
impairments became severe. 27   

 (emphasis added).   It is

consequently established in this circuit that SSR 83-20’s

reference to a medical advisor is mandatory when the evidence of

record regarding disability onset date is ambiguous, at least in

cases in which the ALJ has previously found that the claimant

was disabled on the date he or she applied for benefits. 28



27
  As in this case, the claimant challenged only the ALJ’s step
two finding that he did not suffer from a severe mental
impairment prior to his DLI. See May, 

. The court
thus spoke in terms of the date on which the claimant’s
impairments became severe, but its holding would be equally
applicable if an ALJ found, based on ambiguous evidence, that a
claimant was not disabled prior to his or her DLI at steps four
or five of the sequential evaluation process. See 

(a)(4)(iv-v) (discussing a claimant’s ability to
perform past relevant work or to make an adjustment to other
work); SSR 83-20, 

, at *3 (“The onset date should
be set on the date when it is most reasonable to conclude from
the evidence that the impairment was sufficiently severe to
prevent the individual from engaging in SGA (or gainful
activity) for a continuous period of at least 12 months or
result in death.”).
28
  The Commissioner relies on the First Circuit’s statement in
Rodriguez Pagan that “[u]se of a medical advisor in appropriate
cases is a matter left to the Secretary’s discretion; nothing in
the Act or regulations requires it,” see 

, but that
case preceded May by ten years and did not mention SSR 83-20.
She also cites my decision in Hurd v. Commissioner, Social
Security Administration for the proposition that the Social
Security regulations do not “explicitly direct[] the ALJ to
consult a medical expert,” see 

, but she
neglects to mention my subsequent holding that “the
circumstances of the case required him to obtain expert advice.”
See 

 (emphasis added) (citing Karlix v. Barnhart, 

 (8th Cir. 2006); Armstrong v. Comm’r, Soc. Sec. Admin.,

 (9th Cir. 1998); SSR 83-20, 

).
                                30
     The Commissioner argues that this case is distinguishable

from May because the ALJ in that case expressly found that the

claimant was disabled on the date he applied for benefits

whereas in this case, the ALJ found only that Wilson was not

disabled at any time prior to his DLI.    The Commissioner

contends that SSR 83-20 is inapplicable in the latter scenario.

I reject this argument because I find no support for it either

in May or the language of SSR 83-20.

     First, the ALJ’s finding in May that the claimant was

presently disabled was immaterial to the First Circuit’s

decision.   See 

.   That finding was mentioned once,

in the second sentence of the court’s opinion.    There is

absolutely no indication that it factored into the court’s

holding that SSR 83-20 applied in that case and required the ALJ

to call a medical advisor.    The only factor specifically

mentioned by the court that triggers the medical advisor

provisions in SSR 83-20 is ambiguity in the record regarding

disability onset.   See 

   As already discussed, that

prerequisite was clearly met here.

     The scant attention paid to the ALJ’s present disability

finding in May is not surprising, given that nothing in SSR 83-

20 indicates that such a determination - or lack thereof -



                                 31
should matter when the evidence of record is otherwise ambiguous

as to the onset of disability.   As I have noted elsewhere,

     [s]ome courts attach significance to the statement in
     the introduction to SSR 83–20 that “in addition to
     determining that an individual is disabled, the
     decisionmaker must also establish the onset date of
     disability.”   This sentence merely acknowledges the
     fact that an ALJ must make an onset date determination
     if he finds that the claimant was disabled when she
     applied for benefits. It does not in any way suggest
     SSR 83–20 is inapplicable in cases where an ALJ denies
     a claim for DIB by finding that the claimant was not
     disabled as of her date last insured.

Ryan v. Astrue, 

, 19 n.7 (citations

omitted); see Grebenick, 

 (same).   But see Bird,

 (reaching the opposite conclusion); Eichstadt,

 (same); Key v. Callahan, 

 (6th

Cir. 1997) (same).   This introductory quotation, and the

numerous others that the Commissioner relies upon, are simply

inapposite. 29


29
  These quotations (with the Commissioner’s emphasis and
alterations as noted) include: “[t]he onset date of disability
is the first day an individual is disabled as defined in the Act
and the regulations,” SSR 83-20, 

, at *1; the
Ruling’s purpose is “[t]o state the policy and describe the
relevant evidence to be considered when establishing the onset
date of disability under the provisions of titles II and XVI of
the Social Security Act (the Act) and implementing regulations,”
id.; an applicant for DIB benefits cannot be found to be
disabled unless “insured status is also met at a time when the
evidence establishes the presence of a disabling condition,”
id.; the claimant’s allegations and date of work stoppage are
significant “only if it [sic] is consistent with the severity of
the condition(s) shown by the medical evidence,” id.; and an
                                32
     The Commissioner further contends that my reading of SSR

83-20 is inconsistent with SSA policy and would impose an undue

administrative burden on the agency.   Again, I disagree.    First,

I can conceive of no reasonable public policy basis for the SSA

to interpret the Social Security Act in a manner that would

permit, and possibly encourage, an ALJ to avoid the

inconvenience of either calling a medical advisor or making a

finding regarding present disability in a case in which the

evidence of a claimant’s disability onset date is

ambiguous.   Cf. Grebenick, 

-01 (citing Reid v.

Chater, 

 (10th Cir. 1995)) (in the absence of

contemporaneous medical evidence, the obligation to call a

medical advisor turns on whether the evidence regarding onset is

ambiguous, not whether the ALJ could reasonably conclude that

the claimant was not disabled before his or her DLI).   Further,

an ALJ always has the option to expressly find that a claimant



inference regarding the disability onset date “must have a
legitimate medical basis,” id. at *3. According to the
Commissioner, all of this language “clearly indicates that if an
ALJ finds that a claimant is not disabled, no inquiry into an
onset date is required.” Doc. No. 17. That is true if an ALJ
determines that a claimant is not presently disabled, see, e.g.,
Cohen v. Barnhart, 

 (1st Cir. 2003) (per curiam)
(unpublished table decision), but I fail to see how any of this
language supports the proposition that SSR 83-20 applies only
after the ALJ determines that “the claimant has established a
disability, and the record is ambiguous as to the onset of that
disability.” See Doc. No. 17.
                                33
is not disabled as of the date of the hearing, which would

obviate the need to call a medical advisor to determine a

(nonexistent) onset date. 30    See, e.g., Cohen, 

; Rossiter v. Astrue, 

.     Consequently,

there is no merit to the Commissioner’s concern that ALJs might

be “require[d] . . . to consult a medical expert regardless of

whether there is any evidence of a medically determinable severe

impairment or of disability . . . .”     See Doc. No. 17.

Unfortunately, the ALJ in this case did not make any findings

regarding present disability, and I am limited to reviewing

those findings that she did make.     See, e.g., Letellier v.

Comm’r of Soc. Sec. Admin., 

 (citing SEC v.

Chenery Corp., 

 (1947)).



                          IV.    CONCLUSION

      The ALJ in this case failed to comply with SSR 83-20,

which (1) applies regardless of whether the ALJ has made a


30
  The Commissioner points me to the SSA’s internal guidance
manual for the proposition that it serves “no purpose to make
findings regarding the claimant’s impairments or ability to work
after the date last insured,” see Social Security
Administration, Office of Hearings and Appeals, Litigation Law
Manual § I-5-4-40 (Sept. 28, 2005), but the section from which
that quotation is taken concerns cases – not at all like the
present one - in which “cessation of a prior period of
disability is confirmed” and the claimant is seeking a
subsequent period of disability. Id.
                                34
finding regarding post-DLI disability, see, e.g., Grebenick, 

, and (2) requires use of a medical advisor

whenever the evidence regarding a claimant’s disability onset

date is ambiguous.   See, e.g., May, 

.   Although a

DIB claimant bears the burden to prove that he or she was

disabled during the insured period, see 

 this does not

relieve the ALJ of the duty to apply SSR 83-20 as necessary to

ensure that the record is fully developed.   See, e.g., Mason v.

Apfel, 

 (D. Mass. 1998). 31


31
  Prior decisions of this court have either not followed the
reasoning of the remaining cases cited by the Commissioner or
distinguished those cases on their facts, and the Commissioner
has offered no persuasive reason for me to reach different
conclusions. See Sam v. Astrue, 

 (9th Cir.
2008), distinguished by Rossiter, 

; Eichstadt, 

, declined to follow by Rossiter, 

, and
Ryan, 

; Nix v. Barnhart, 

, 396–97
(5th Cir. 2005) (per curiam), declined to follow by Rossiter,

, and Moriarty v. Astrue, 

; Scheck v.
Barnhart, 

 (7th Cir. 2004), distinguished by
Rossiter, 

; Asbury v. Comm’r of Soc. Sec., 

, 686 n.3 (6th Cir. 2003), distinguished by Rossiter,

; Key, 

, declined to follow by
Rossiter, 

, Moriarty, 

, and Ryan, 

; Sousa v. Astrue, No. 08-218S, 

, at *9
(D.R.I. Oct. 21, 2009), distinguished by Rossiter, 

;
Kovacs v. Astrue, No. 08–241, 

, at *4 (D. Me. Mar.
23, 2009), rep. & rec. adopted, 

 (D. Me. Apr. 10,
2009), declined to follow by Rossiter, 

; Lisi v.
Apfel, 

 (D.R.I. 2000), declined to
follow by Rossiter, 

. The Second Circuit’s decision
in Baladi v. Barnhart is similarly distinguishable. See 

 (2d Cir. 2002) (ALJ expressly found that the
claimant was not disabled as of the date of the hearing).
Finally, I decline the Commissioner’s invitation to adopt the
                                35
      Accordingly, I deny the Commissioner’s motion to affirm

(Doc. No. 12) and grant Wilson’s motion to reverse or remand

(Doc. No. 9).   Pursuant to sentence four of 

(g),

I remand the case to the Social Security Administration for

further proceedings consistent with this decision. 32

      SO ORDERED.


                               /s/Paul Barbadoro
                               Paul Barbadoro
                               United States District Judge

, 2014

cc:   Raymond J. Kelly, Esq.
      Robert J. Rabuck, Esq.




reasoning in Robinson v. Apfel, 

 (9th Cir. 2000)
(unpublished table decision), a case which has never been cited
by any court, for the reasons discussed above.
32
  On remand, the ALJ is free to conclude that Wilson is not
entitled to benefits, but only if she first (1) finds on the
basis of substantial evidence that he is not presently disabled,
or (2) relies on the opinion of a medical advisor to find that
Wilson was not disabled prior to his DLI.
                                36