UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Gloria Gean Fischer
v. Civil No. 13-cv-00463-PB
Opinion No. 2014 DNH 227
Carolyn Colvin,
U.S. Social Security Administration,
Acting Commissioner
MEMORANDUM AND ORDER
Gloria Gean Fischer seeks judicial review of a ruling by
the Commissioner of the Social Security Administration (“SSA”)
denying her application for Disability Insurance Benefits
(“DIB”). For the reasons I discuss below, I conclude that the
Administrative Law Judge (“ALJ”) erred by failing to consult a
medical advisor before determining that Fischer was not disabled
as of her date last insured. Thus, I vacate the Commissioner’s
decision and remand for further administrative proceedings.
I. BACKGROUND1
A. Relevant Medical and Other Documentary Evidence
Fischer was 41 years old when her insured status expired on
1
Sections A and B of the background section are taken
substantially from the parties’ Joint Statement of Material
Facts (Doc. No. 10). See L.R. 9.1(b). Minor stylistic and
substantive changes have been made, and citations to the
administrative transcript have been omitted.
March 31, 1998, and she was 56 years old on June 28, 2013, when
the ALJ denied her claim. Fischer has a GED and she previously
worked as a hairdresser, a retail store owner, and an operator
of a small basket-making company.
1. Medical Evidence
On October 1, 1996, Fischer visited the Exeter Hospital
Pain Clinic complaining of increasingly severe left buttock and
left leg pain that began when she was injured after a fall in
June 1996. The pain was worse with standing or sitting, and it
woke her up at night. She also described transient paresthesias2
in L4-5 and S13 distributions. On examination, Fischer had full
range of motion in the lumbar spine,4 tenderness in the spinous
process in T2-T55 and at L4-5, and unusual paraspinal tenderness.
2
Paresthesia is an abnormal touch sensation, such as burning,
prickling, or formication, often in the absence of an external
stimulus. Dorland’s Illustrated Med. Dictionary (Dorland’s)
1404 (31st Ed. 2007).
3
The symbols L4 and L5 refer to two of the five vertebrae that
comprise the lumbar vertebrae, which are the five vertebrae
between the thoracic vertebrae and the sacrum, a wedge-shaped
bone lodged between the two hip bones. Dorland’s, supra note 2,
at 1362, 2079. The symbol S1 refers to one of the five fused
sacral vertebrae that form the sacrum. Id. at 1362.
4
The lumbar spine is that portion of the spine comprising the
lumbar vertebrae. Dorland’s, supra note 2, at 1774.
5
The symbols T2 and T5 refer to two of the twelve vertebrae that
comprise the thoracic vertebrae, which are situated between the
She had good flexion and extension of her lower extremities, and
she was able to toe and heel walk. Straight leg raise testing
was positive at 90 degrees on the right and left. An MRI showed
a bulge at L4-5. The attending physician diagnosed Fischer with
sciatica6 secondary to lumbar strain and administered an epidural
steroid injection.7 On January 6, 1998, Fischer underwent an MRI
of her cervical spine to assess neck pain that was radiating to
her left shoulder. The MRI was normal.
Fischer’s insured status expired on March 31, 1998.
In October 1998, Fischer underwent an X-ray of her left hip
and pelvis to rule out a bone abnormality or sacroilitis.8 That
lumbar and cervical vertebrae, giving attachment to the ribs and
forming part of the posterior wall of the thorax. They are
designated by the symbols T1 through T12. Dorland’s, supra note
2, at 2079.
6
Sciatica is a syndrome characterized by pain radiating from the
back into the buttock and into the lower extremity along its
posterior or lateral aspect, and most commonly caused by
protrusion of a low lumbar intervertebral disk; the term is also
used to refer to pain anywhere along the course of the sciatic
nerve. Dorland’s, supra note 2, at 1703.
7
“Epidural” means situated upon or outside the dura mater, which
is the outermost, toughest, and most fibrous of the three
membranes covering the brain and spinal cord. Dorland’s, supra
note 2, at 580, 639.
8
Sacroiliitis is inflammation in the sacroiliac joint, which is
located between the sacrum (the triangular bone just below the
3
study was also normal.
On March 31, 2004, Fischer visited Dr. Frank Graf,
complaining of poor results from epidural blocks. 9 On
examination, Fischer exhibited marked sensitivity in the sciatic
notch on her left side, and she also had pain on passive range
of motion of the hip joints. Dr. Graf noted that her X-rays and
MRIs did not indicate any hip joint problem or sacroiliac joint
problem, and her MRI of the lumbar spine suggested some
degenerative disc changes with annular bulge but no disc
herniation. 10 He recommended a pelvic examination with her
internist, Dr. Braese, and an appointment with a physical
therapist.
On May 27, 2004, Fischer underwent a physical therapy
evaluation for a questionable diagnosis of piriformis syndrome11.
lumbar vertebrae) and ilium (the expansive superior portion of
the hip bone). Dorland’s, supra note 2, at 1362, 1687.
9
An epidural block is regional anesthesia produced by injection
of the anesthetic agent into the epidural space. Dorland’s,
supra note 2, at 230.
10
Herniation is the abnormal protrusion of an organ or other
body structure through a defect or natural opening in a
covering, membrane, muscle, or bone. Dorland’s, supra note 2,
at 862.
11
Piriformis syndrome is compression of the sciatic nerve by the
piriformis muscle, causing pain. The Merck Manual 2635 (18th
4
Under the History section of the report, it was noted that
Fischer had fallen off of a ladder seven years earlier onto her
left hip with a twisting motion as she fell, and she had
experienced problems with her left buttock and leg ever since.
She had been treated with physical therapy, which did not help a
great deal. Fischer complained that over the preceding few days
she felt a constant pain in the left buttock and down into the
lateral aspect of the leg, which she rated at a 7 on a scale of
0-10. While attempting to work out the pain, she had also been
experiencing numbness and tingling in her left arm. She also
noted that she began taking Ambien during the past week because
the pain was making it difficult for her to sleep. The
therapist administered a number of specific low back tests,
including a piriformis test that yielded a “markedly positive”
result on her left side and a straight leg raise that was
positive for left lower back burning.
On August 14, 2004, Fischer underwent an MRI of the lumbar
spine to evaluate complaints of left flank pain that radiated to
the left leg. Fischer then underwent a second MRI of the lumbar
spine on December 15, 2005.
Ed. 2006).
5
On December 7, 2006, Fischer underwent an operation to
implant a dual Octrode lead for a spinal cord stimulation trial.
On September 4, 2009, Fischer’s treating primary care
physician, Dr. Braese, noted that Fischer reported to him that
she had two jobs and was happy and active.
In 2010, Fischer began to regularly visit the Rye
Interventional Spine Medicine seeking treatment for her back,
leg, and foot pain. At these visits, Fischer would usually
complain of a persistent pattern and history of back and left-
sided leg and foot pain that had originated around 1995 and
1996. For example, during her April 20, 2011 visit, Fischer
complained of low back pain that had been occurring in a
persistent pattern for 15 years without change. She described
the pain as a moderate to severe dull aching in the lower back,
left flank area, left buttock, and left dorsal foot. The pain,
Fischer said, radiated to the lateral aspect of her left leg and
left foot. The back pain was aggravated by sitting.
Additionally, the Rye Interventional Spine Medicine report
dated August 27, 2012 states:
The onset of low back pain has been sudden and has been
occurring in a persistent pattern for 16 years. The course
has been decreasing (since she has retired). The low back
pain is described as a mild to moderate dull aching. The
6
low back pain is described as being located in the lower
back (left side), left buttock, left upper buttock, left
calf and left dorsal foot. The pain radiates to the
lateral aspect of left leg (aching) and left foot. The
back pain is aggravated by bending, twisting, lifting and
sitting (prolonged). The back pain is relieved by bed rest
(with leg up) and medication. The symptoms have been
associated with back stiffness, hip pain and leg weakness.
The low back pain was preceded by trauma . . . [t]he pain
interferes with driving, sweeping, gardening, vacuuming and
leisure activities.
In August 2011, Fischer described her low back pain to
Physician’s Assistant Ruth Berger as a mild to moderate dull
aching. Although the pain had been occurring in a persistent
pattern for years, Fischer said, it had been gradually
improving.
Fischer visited Ruth Berger again on June 28, 2012. She
reported that her pain was aggravated by prolonged sitting and
ascending stairs. When she stood on her right leg for a few
minutes, it relieved the pain in her left leg.
In August 2012, Fischer again visited Ruth Berger and
described her low back pain as a mild to moderate dull aching.
It had been decreasing since she retired. Fischer wanted to
discuss removal of her spinal cord stimulation system because
she believed that her pain was controlled with changes in
activities and medication management.
7
On February 13, 2013, Fischer told Physician’s Assistant
Donna Flynn that her low back pain had been occurring in a
persistent pattern for 16 years. She described the pain as a
mild to moderate dull aching. She also reported that her
medications were working well to relieve her pain.
On April 25, 2013, Dr. Braese drafted a letter stating that
Fischer had reached maximum medical improvement, that she could
barely stand or walk, and that she could do so for no more than
two hours at a time. Dr. Braese also wrote that Fischer had
sensory loss, muscle weakness, and positive straight leg raising
test. She also wrote that Fischer could not be very mobile most
of the time and that Fischer was unable to lift or work. Dr.
Braese’s opinion did not address the extent of Fischer’s
conditions and limitations at any point in the past, including
prior to Fischer’s date last insured.
2. State Agency Opinions
On September 17, 2012, state agency reviewing physician
Jonathan Jaffe, MD, reviewed the record and opined that there
was insufficient evidence to support an onset date during the
period between October 31, 1995, and March 31, 1998.
8
3. Fischer’s Testimony
Fischer testified at a hearing before Administrative Law
Judge (ALJ) Daniel J. Driscoll on May 16, 2013. She was 55
years old on the day of the hearing, and she had stopped working
in January 2011. She had previously been working part-time a
couple of days per week as a hair stylist. In 1985, Fischer
claimed, she had been injured in a car accident. She had then
begun to run a lingerie business, and while working at the
business, she fell from an eight-foot ladder onto a concrete
floor, injuring her left side.12 Fischer was unsure about the
date of her injury – she thought it could have been around
November 1995. She explained that she owned her lingerie shop
from 1994 until 2003. She closed the store in 2003 because she
could no longer give it her all. She would go in and lay in the
backroom to relieve pain, and the store started to fail because
12
Fischer also referred in her testimony to a 1985 car accident
that, she claimed, left her “paralyzed from [her] whole left
side.” Tr. at 16, 32-33. She also testified that after the
accident, but before her fall from the ladder, she “got better,
a little bit.” Tr. at 33. The record, however, appears to
contain no other reference to any paralysis that Fischer may
have sustained from the 1985 accident. Although Fischer
testified that her fall from the ladder “re-injur[ed]” her left
side, (Tr. at 16), her claim for disability stems from her fall
from the ladder, not from the 1985 car accident or any resulting
paralysis.
9
she could not be there. She said her daughter helped her to
keep the business going, and she had to hire a couple of people
as well. Fischer stated that the business did well for
approximately seven years, when she could no longer be there.
She was somewhat confused by her earnings record and explained
that her former accountant had gone to prison for tax fraud; she
thought it was odd that there were several years for which was
nothing reported for her. Fischer stated that she was making
approximately $40,000 per year from her shop until she had the
spinal implant. She estimated that she basically did all of the
work for her business for approximately three years, until her
fall. She was not sure if she started the business in 1994; she
was confident that she closed the store in 2003, and calculated
the date she started the business by going back seven years,
because she had the business for seven years. After she fell
from the ladder, she closed the store for three days and then
made arrangements for her daughter to come in and take over.
Afterward, she never again participated in the business full-
time. Fischer stated that after the fall from the ladder, she
worked at the store approximately three days per week, and when
she was there, she spent most of the time in the back room lying
10
down. If she needed to stand up while at the store, she could
only stand on her right leg due to her left-sided pain.
Fischer stated that after she closed her store, she went
through surgery to have her spinal cord stimulant implanted, and
for two years she recuperated from the surgery. She started
doing light work putting together gift baskets, but she found
that the bending and lifting was too much, and she was not able
to make a living doing it. She also tried to work part-time as
a hair stylist. She could no longer work because she now spent
most of her time in bed. She woke up in the morning, did a
little bit, then went back to lie down with a heating pad. She
then got up and tried to do a bit more before returning to a
lying rest position. She testified “most of my day is up and
down, up and down.” Her husband does most of the shopping, she
said, and she needs to lie down in the back of the car if she is
traveling for more than an hour. She said that her condition
was deteriorating. Fischer denied side effects from her
medication and stated that they helped her get up. She does do
some light cooking, she said, but usually does not wash dishes
because they are too heavy; climbing stairs is also difficult.
Fischer stated that after sitting for more than ten minutes
11
during the hearing, she felt sick to her stomach and her leg was
numb. During a typical day, she spends approximately two hours
sitting in a chair, and then two hours lying in a bed, before
repeating the cycle. Fischer stated that her back pain was
worse now than it had been in 1997.
A vocational expert also testified at the hearing. In
response to the ALJ’s questions, the vocational expert testified
that a hypothetical individual with Fischer’s age, education,
and work experience, who could perform work at the light
exertional level, with occasional postural limitations and a
need to alternate between sitting and standing, along with
additional limitations, could not perform her past relevant work
because she required alternate sitting and standing and her past
relevant work all involved a lot of standing. The vocational
expert also testified that no job would be available to someone
who needed an option to lie down when needed. In addition, in
response to one of the ALJ’s hypotheticals, although the
vocational expert testified that some jobs may be available,
there was no testimony or other evidence offered that those jobs
would have been available during the time period at issue, from
1995 to 1998.
12
4. The ALJ’s Decision
On June 28, 2013, the ALJ issued a decision denying
Fischer’s claim for DIB benefits. At step one, the ALJ found
that Fischer had not engaged in substantial gainful activity
between her alleged onset date of October 31, 1995 and her date
last insured of March 31, 1998.13 The ALJ explained that there
was insufficient evidence to determine her actual income or
whether this income represented substantial gainful activity.
The ALJ thus proceeded to step two, where he concluded that
Fischer did not have an impairment or combination of impairments
that significantly limited her ability to perform basic work-
related activities for at least 12 consecutive months prior to
the date her insured status expired on March 31, 1998.
Accordingly, the ALJ found that Fischer was not disabled.
13
Fischer’s earnings history both before and after her date last
insured remains unclear from the record. Some evidence suggests
that Fischer's earnings reports to Social Security did not
reflect her actual earnings while she owned her shop, and
Fischer mentioned that her tax accountant may have caused some
of this confusion. See Tr. at 18-30. In any event, neither
party now disputes that March 31, 1998 marks Fischer’s date last
insured, and the DIB Insured Status Reports included in the
record confirm that this is the correct date. See, e.g., Tr. at
157-59.
13
II. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), I am authorized to review the
pleadings submitted by the parties 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.,
211 F.3d 652, 655 (1st Cir. 2000).
Findings of fact made by the ALJ are accorded deference as
long as they are supported by substantial evidence. Id.
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.’”
Irlanda Ortiz v. Sec’y of Health & Human Servs.,
955 F.2d 765,
769 (1st Cir. 1991) (per curiam) (quoting Rodriguez v. Sec’y of
Health & Human Servs.,
647 F.2d 218, 222 (1st Cir. 1981)). If
the substantial evidence standard is met, factual findings are
conclusive even if the record “arguably could support a
different conclusion.” Id. at 770. Findings are not
conclusive, however, if they are derived by “ignoring evidence,
misapplying the law, or judging matters entrusted to experts.”
14
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam).
The ALJ is responsible for determining issues of credibility and
for drawing inferences from evidence in the record. Irlanda
Ortiz,
955 F.2d at 769. It is the role of the ALJ, not the
court, to resolve conflicts in the evidence.
Id.
III. ANALYSIS
The ALJ denied Fischer’s claim at step two of his analysis
by concluding that Fischer’s medically determinable impairment,
sciatica, had not become severe as of Fischer’s date last
insured. Tr. at 61. The ALJ therefore determined that Fischer
was not entitled to benefits because she was not disabled as of
her date last insured. Tr. at 63. The question raised by this
appeal is whether Social Security Ruling (“SSR”) 83-20 required
the ALJ to consult with a medical advisor before reaching that
conclusion.14 The Commissioner argues that the ALJ did not have
14
Although Fischer did not address the SSR 83-20 issue in her
brief, the Commissioner briefed the issue in detail. See Doc.
No. 9-1 at 10-16. Despite her own decision to brief the SSR 83-
20 issue, the Commissioner argues that I should decline to
address it because Fischer waived the argument by not briefing
it. See id. at 3 n. 2. The cases that the Commissioner cites,
however, do not support that position. Higgins v. New Balance
Athletic Shoe, Inc. establishes only that a litigant may not
raise an argument for the first time on appeal if the litigant
15
to do so for two reasons: first, because SSR 83-20 requires
consultation with a medical advisor only if the ALJ makes an
express finding of present disability; and second, because there
was insufficient evidence in the record to support any inference
that Fischer was disabled as of her date last insured. See Doc.
No. 9-1. For the reasons I discuss below, I reject both
arguments.
A. Applicability of SSR 83-20
The Commissioner maintains, as she has in the past, that
SSR 83-20 should apply only when the ALJ has made an express
finding of present disability. See Doc. No. 9-1 at 10-16. To
support her position, the Commissioner submitted a brief that is
nearly identical to her submission in Wilson v. Colvin, a case
did not raise the issue below. See 194 F.3d 252, 259 (1st Cir.
1999). That principle does not apply here, however, because
the Commissioner has raised the SSR 83-20 issue. Although it is
true that “[t]he district court is free to disregard arguments
that are not adequately developed,” the Commissioner herself
chose to “adequately develop[]” the SSR 83-20 issue by briefing
it. See
id. at 260. Thus, nothing precludes me from deciding
an issue where, as here, the party that the issue disfavors
elects to brief it. Cf. U.S. Nat’l Bank of Or. v. Indep. Ins.
Agents of Am., Inc.,
508 U.S. 439, 446-48 (1993) (circuit court
permissibly addressed question not raised by parties after
receiving briefing on that question); United States v.
Cotterman,
709 F.3d 952, 960 (9th Cir. 2013) (court “may
consider an issue that has not been adequately raised on appeal
if such a failure will not prejudice the opposing party”).
16
involving the same legal question that I decided in May 2014.
See Wilson v. Colvin, --- F. Supp. 2d ---, 2014 DNH 100;
id.
The Commissioner has offered no new arguments that might
persuade me to modify my analysis in Wilson. Because I already
addressed the same arguments in Wilson, I need not repeat my
analysis here. See Wilson,
2014 DNH 100. Thus, as my
colleagues on this Court and I have consistently done before, I
proceed on the premise that SSR 83-20 ordinarily requires the
ALJ to consult a medical advisor before concluding that a
claimant was not disabled as of her date last insured.15 See,
e.g., id. at 32-34; Rossiter v. Astrue,
2011 DNH 115, 11-13
(Laplante, J.); Moriarty v. Astrue,
2008 DNH 158, 18-19
(McAuliffe, J.); Ryan v. Astrue,
2008 DNH 148, 18-19.
B. Ambiguity in the Record
Even if SSR 83-20 ordinarily requires consultation with a
15
As I explained in Wilson, this general rule does not apply if
either (1) the ALJ expressly determines that the claimant is
either not presently disabled or has not been disabled at any
point through the date of decision, or (2) if the evidence
unambiguously establishes that the claimant was not disabled as
of her date last insured. See Wilson, 2014 DNH 100, 34-35. The
ALJ below made no express finding regarding present disability,
however, and as I discuss in Part B of this section, the record
does not unambiguously establish that Fischer was not disabled
as of her date last insured.
17
medical advisor before determining that a claimant was not
disabled as of her date last insured, the Commissioner further
argues, the ALJ was not required to do so here because “there
was not enough evidence to support the inference of an onset
date”. See Doc. No. 9-1 at 15-16. I disagree.
It is true that an ALJ need not consult a medical advisor
if the record provides unambiguous evidence that the claimant
did not become disabled as of the date last insured. See May v.
Soc. Sec. Admin. Comm’r, No. 97-1367, 1999 WL 616196, at *1-2
(1st Cir. Oct. 7, 1997); Bailey v. Chater,
68 F.3d 75 (4th Cir.
1995) (ALJ must consult medical advisor “in all but the most
plain cases”); Reid v. Chater,
71 F.3d 372, 374 (10th Cir.
1995); Wilson,
2014 DNH 100, 24. This standard, however,
permits the ALJ to decline consultation with a medical advisor
only if “no legitimate basis [in the record] can support an
inference of disability” as of the date last insured. Mason v.
Apfel,
2 F. Supp. 2d 142, 149 (D. Mass. 1998); see, e.g., Mills
v. Astrue,
2011 DNH 097, 19 (Laplante, J.) (consultation not
required where, aside from one isolated complaint shortly after
date last insured, more than four years had passed after date
last insured before earliest complaints of impairment). If such
18
a basis exists, only a medical advisor’s expertise can provide
the “legitimate medical basis” that SSR 83-20 requires to rebut
it. SSR 83-20, 1983 WL 31249, at *3.
Thus, even a record that furnishes only weak support for a
claim remains ambiguous, and therefore requires consultation
with a medical advisor, if it could support any legitimate
inference of disability prior to the date last insured. In
Rossiter v. Astrue, for instance, only sparse evidence existed
that documented the claimant’s degenerative condition prior to
the date last insured. 2011 DNH 115, 14-18. Moreover, the
claimant’s treatment record subsequent to the date last insured
suggested that the claimant had at times experienced significant
improvement in her condition. Id. at 15-16. Nevertheless, this
Court concluded that the claimant’s treatment records
contemporaneous with the date last insured, combined with
evidence of deterioration in the claimant’s condition subsequent
to the date last insured, established sufficient ambiguity in
the record to require consultation with a medical advisor. Id.
at 18-20; see also Blea v. Barnhart,
466 F.3d 903, 912 (10th
Cir. 2006) (finding ambiguity in record after concluding that
evidence did not necessarily establish that claimant had not
19
become disabled by date last insured).
Applying this standard to the record here, I cannot
conclude that the record unambiguously establishes that Fischer
was not disabled as of her date last insured. Fischer sought
medical treatment for severe left buttock and left leg pain as
early as October 1996, well before her disability insurance
expired in March 1998. Doc. No. 10 at 2. At that visit, her
treating physician diagnosed Fischer with sciatica and
prescribed an epidural steroid injection. Id. During the
hearing before the ALJ, Fischer testified that her work schedule
changed “dramatically” after her fall. Tr. at 40. On some
days, she claimed, she was unable to open the store, and on
other days she would “lay down in between [] clients.” Tr. at
40-41. Fischer continued to complain of worsening leg and
buttock pain in 2004, and more frequently beginning in 2010.
Doc. No. 10 at 3-6. In 2013, Fischer’s primary care physician
concluded that Fischer suffered from “neuropathic pain . . . of
the left leg” and had “reached maximum medical improvement.”
Tr. at 758. At that point, the physician observed, Fischer
could “barely stand or walk” and could neither work nor lift.
Id.
20
Thus, this record suggests that Fischer’s medically
determinable impairment, sciatica, originated before her date
last insured and became progressively more severe through 2013.
Although significant gaps exist in Fischer’s treatment record
and certain evidence, including some of Fischer’s own
statements, could undermine her claim, this record provides
enough evidence to support a reasonable inference that Fischer’s
sciatica had become severe by her date last insured.16 See
Rossiter, 2011 DNH 115, 19-20; see also Blea,
466 F.3d at 912-13
(gap in medical treatment insufficient to render record
unambiguous under SSR 83-20); Moriarty,
2008 DNH 158, 16 (delay
of two years following date last insured before first complaint
of impairment insufficient to render record unambiguous under
16
A state agency opinion included in the record documents the
conclusion of Dr. Jonathan Jaffe, a non-treating physician, that
there was insufficient evidence to conclude that Fischer had
become disabled by her date last insured. Tr. at 51-52. The
physician provided his opinion during the initial stage of
Fischer’s claim on September 17, 2012, nearly eight months prior
to Fischer’s hearing before the ALJ and without the benefit of
Fischer’s testimony. Tr. at 51-52. The Commissioner has not
argued that Dr. Jaffe’s opinion either satisfies SSR 83-20 or
independently renders the record unambiguous, and the ALJ’s
decision makes no mention of the opinion. Indeed, the ALJ
departed from Dr. Jaffe’s opinion by determining that Fischer
had a medically determinable impairment, sciatica, that arose
prior to her date last insured even though Dr. Jaffee concluded
that Fischer did not have any medically determinable impairments
at that time. Tr. at 52, 61.
21
SSR 83-20).
Regardless of the strength or weakness of Fischer’s claim,
therefore, the ALJ’s failure to consult a medical advisor before
denying Fishcer’s claim was an error of law that requires
remand. See Wilson, 2014 DNH 100, 25. If substantial evidence
in the record ultimately persuades the ALJ to conclude
otherwise, he remains free to do so without reaching a finding
regarding Fischer’s present disability – but, under SSR 83-20
and on this ambiguous record, he must first consult a medical
advisor. See Grebenick v. Chater,
121 F.3d 1193, 1200-01 (8th
Cir. 1997) (“[T]he issue of whether a medical advisor is
required under SSR 83-20 does not turn on whether the ALJ could
reasonably have determined that [the claimant] was not disabled
before [her last insured date].”); Ryan,
2008 DNH 148, 20.
IV. CONCLUSION
For these reasons, I conclude that the ALJ made legal error
under SSR 83-20 by failing to consult a medical advisor before
determining that Fischer had not become disabled by her date
last insured. Thus, I deny the Commissioner’s motion to affirm
(Doc. No. 9) and grant Fischer’s motion to reverse or remand
22
(Doc. No. 8). Pursuant to sentence four of 42 U.S.C. § 405(g),
I remand the case to the Social Security Administration for
further proceedings consistent with this decision.17
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
October 30, 2014
cc: Christine Woodman Casa, Esq.
T. David Plourde, Esq.
17
Fischer offered other arguments in favor of remand. See Doc.
No. 8-1. Because I grant remand on the basis of the ALJ’s legal
error under SSR 83-20, however, I need not reach Fischer’s other
arguments.
23
