UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Mariel E. Lonek
v. Case No. 16-cv-212-PB
Opinion No. 2017 DNH 112
Nancy A. Berryhill, Acting
Commissioner, Social
Security Administration
MEMORANDUM AND ORDER
Pursuant to 42 U.S.C. § 405(g), Mariel Lonek moves to
reverse the Acting 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. The
Acting Commissioner, in turn, moves for an order affirming her
decision. For the reasons that follow, I affirm.
I. 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 [Acting
Commissioner] has committed a legal or factual error in
evaluating a particular claim.’” Manso-Pizarro v. Sec’y of HHS,
76 F.3d 15, 16 (1st Cir. 1996) (per curiam) (quoting Sullivan v.
Hudson,
490 U.S. 877, 885 (1989)).
As for the statutory requirement that the Acting
Commissioner’s findings of fact be supported by substantial
evidence, “[t]he substantial evidence test applies not only to
findings of basic evidentiary facts, but also to inferences and
conclusions drawn from such facts.” Alexandrou v. Sullivan, 764
F. Supp. 916, 917-18 (S.D.N.Y. 1991) (citing Levine v. Gardner,
360 F.2d 727, 730 (2d Cir. 1966)). In turn, “[s]ubstantial
evidence is ‘more than [a] mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.’” Currier v. Sec’y of HEW,
612 F.2d
594, 597 (1st Cir. 1980) (quoting Richardson v. Perales,
402
U.S. 389, 401 (1971)). But, “[i]t is the responsibility of the
[Acting Commissioner] to determine issues of credibility and to
draw inferences from the record evidence. Indeed, the
resolution of conflicts in the evidence is for the [Acting
2
Commissioner], not the courts.” Irlanda Ortiz v. Sec’y of HHS,
955 F.2d 765, 769 (1st Cir. 1991) (per curiam) (citations
omitted). Moreover, the court “must uphold the [Acting
Commissioner’s] conclusion, even if the record arguably could
justify a different conclusion, so long as it is supported by
substantial evidence.” Tsarelka v. Sec’y of HHS,
842 F.2d 529,
535 (1st Cir. 1988) (per curiam). Finally, when determining
whether a decision of the Acting Commissioner is supported by
substantial evidence, the court must “review[] the evidence in
the record as a whole.” Irlanda Ortiz,
955 F.2d at 769 (quoting
Rodriguez v. Sec’y of HHS,
647 F.2d 218, 222 (1st Cir. 1981)).
II. Background
The parties have submitted a Joint Statement of Material
Facts. That statement (doc. no. 12) is part of the court’s
record and will be summarized here, rather than repeated in
full.
Lonek applied for disability insurance benefits (“DIB”) in
January of 2013, claiming that she had been disabled since March
1, 1997, as result of juvenile myoclonic epilepsy,1
1 Juvenile myoclonic epilepsy is “an [e]pilepsy syndrome
typically beginning in early adolescence, and characterized by
3
hypothyroidism,2 migraine disorder, lupus anticoagulant,3 a 2009
back injury (slipped dics), and a learning disability
(difficulty with verbal instructions). Lonek later amended the
alleged onset date of her disability to April 1, 2001.
In April 2013, Dr. Burton Nault, a state agency medical
consultant, performed an assessment of Lonek’s physical residual
functional capacity (“RFC”).4 His RFC assessment covered the
period from March 2, 2007, through June 30, 2012, and the
Disability Determination Explanation form that reported his RFC
assessment lists three medically determinable impairments:
coagulation disorder, epilepsy, and migraine. Dr. Nault found
early morning myoclonic jerks that may progress into a
generalized tonic-clonic seizure.” Stedman’s Medical Dictionary
656 (28th ed. 2006).
2 Hypothyroidism is “[d]iminished production of thyroid
hormone, leading to clinical manifestations of thyroid
insufficiency, including low metabolic rate, tendency to gain
weight, somnolence, and sometimes myxedema.” Stedman’s, supra
note 1, at 939.
3 Lupus anticoagulant is an “antiphospholipid antibody
causing elevation in partial thromboplastin time; associated
with venous and arterial thrombosis.” Stedman’s, supra note 1,
at 105.
4 “Residual functional capacity” is a term of art that means
“the most [a claimant] can still do despite [her] limitations.”
20 C.F.R. § 404.1545(a)(1).
4
that Lonek could: (1) lift and/or carry 10 pounds frequently and
20 pounds occasionally; (2) stand and/or walk (with normal
breaks) for about six hours in an eight-hour workday; (3) sit
(with normal breaks) for about six hours in an eight-hour
workday; and (4) push and/or pull the same amount of weight she
could lift and/or carry. He further opined that Lonek had no
postural, manipulative, visual, communicative, or environmental
limitations.
On May 23, 2013, Lonek saw a rheumatologist, Dr. Daniel
Kunz, with whom she had previously treated in 2008. She
presented with headaches. Dr. Kunz reported Lonek’s subjective
complaints of arthralgias and chronic headaches,5 but also
indicated that, objectively, she was “in no acute distress.”
Administrative Transcript (hereinafter “Tr.”) 1177. He gave the
following diagnosis: “Positive ANA (antinuclear antibody).”6 Id.
One week after meeting with Lonek, Dr. Kunz wrote a letter,
addressed “To Whom it May Concern,” that states, in full:
5 Arthralgia is “[p]ain in a joint.” Stedman’s, supra note
1, at 159.
6 Antinuclear antibody is “an [antibody] showing an affinity
for nuclear antigens including DNA and found in the serum of a
high proportion of patients with systemic lupus erythematosus,
rheumatoid arthritis, and certain collagen diseases and in some
of their healthy relatives. Stedman’s, supra note 1, at 103.
5
“Mariel Lonek is a patient of this office. Patient should not
work more than 20 hours per week. Thank you.” Tr. 1026.
On April 18, 2014, Lonek returned to Dr. Kunz for a follow-
up on her positive ANA. She also complained of “worsening
musculoskeletal pain.” Tr. 1172. Her physical examination
revealed “[w]idespread muscle and joint tenderness without joint
swelling or inflammatory changes.” Id. Dr. Kunz concluded that
Lonek “does have fibromyalgia based on history, physical, and
lack of features suggestive of systemic rheumatic disease.”7 Id.
In addition to examining Lonek, Dr. Kunz completed an RFC
form. In it, he opined that Lonek: (1) could only stand for
short periods of time; (2) could not sit upright for six to
eight hours a day; (3) needed to lie down during the day due to
pain; and (4) could walk one full city block non-stop. He
further opined that Lonek could rarely reach above her
shoulders, down to waist level, or down toward the floor, but
could frequently handle objects carefully and handle objects
with her fingers. He also indicated that Lonek could lift and
carry five to ten pounds, but was limited in her ability to
7 Fibromyalgia is “[a] common syndrome of widespread softtissue pain accompanied by weakness, fatigue, and sleep
disturbance.” Stedman’s, supra note 1, at 725.
6
bend, squat, and kneel, due to pain. Finally, Dr. Kunz
indicated that Lonek was currently working four hours a day,
three days a week, and opined that she could work up to 20 hours
a week, but “could not do anything more.” Tr. 1192.
After conducting a hearing, an Administrative Law Judge
(“ALJ”) issued a decision that includes the following relevant
findings of fact and conclusions of law:
3. The claimant has the following severe impairments:
fibromyalgia; low back pain; seizures; and headaches
(20 CFR 404.1520(c)).
. . . .
4. The claimant does not have an impairment or
combination of impairments that meets or medically
equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
. . . .
5. After careful consideration of the entire record,
I find that the claimant has the residual functional
capacity to perform light work as defined in 20 CFR
404.1567(b) except she can occasionally climb ramps
and stairs, never climb ladders, ropes, or scaffolds,
and occasionally stoop, kneel, crouch, and crawl. The
claimant can frequently reach, bilaterally. The
claimant must avoid all exposure to hazardous
machinery, operation and control of moving machinery,
and unprotected heights.
. . . .
10. Considering the claimant’s age, education, work
experience, and residual functional capacity, there
7
are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR
404.1569 and 404.1569(a)).
Tr. 243, 244, 245, 252. Based upon his assessment of Lonek’s
RFC, and a hypothetical question posed to a vocational expert
(“VE”) that incorporated the RFC he described in his decision,
the ALJ determined that Lonek was able to perform the jobs of
recreation attendant, companion, and price marker.
III. Discussion
A. The Legal Framework
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 correctly determined that Lonek
was not under a disability from April 1, 2001, through December
29, 2014.
To decide whether a claimant is disabled for the purpose of
determining eligibility for DIB, an ALJ is required to employ a
five-step sequential evaluation process. See 20 C.F.R. §
404.1520.
The steps are: 1) if the [claimant] is engaged in
8
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. § 404.1520).
The claimant bears the burden of proving that she is
disabled. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987). She
must do so by a preponderance of the evidence. See Mandziej v.
Chater,
944 F. Supp. 121, 129 (D.N.H. 1996) (citing Paone v.
Schweiker,
530 F. Supp. 808, 810-11 (D. Mass. 1982)). Finally,
[i]n assessing a disability claim, the [Acting
Commissioner] considers objective and subjective
factors, including: (1) objective medical facts; (2)
[claimant]’s subjective claims of pain and disability
as supported by the testimony of the claimant or other
witness; and (3) the [claimant]’s educational
background, age, and work experience.
Mandziej, 944 F. Supp. at 129 (citing Avery v. Sec’y of HHS,
797
F.2d 19, 23 (1st Cir. 1986); Goodermote v. Sec’y of HHS, 690
9
F.2d 5, 6 (1st Cir. 1982)).
B. Lonek’s Claims
Lonek claims that the ALJ committed four reversible errors:
(1) failing to properly consider her fibromyalgia; (2)
improperly discounting Dr. Kunz’s opinion; (3) relying upon
flawed testimony from the VE at step 5; and (4) failing to
consult with a medical advisor to establish the onset date of
her alleged disability.8 None of those claims has merit. I
consider each in turn.
1. Consideration of Fibromyalgia
Lonek begins by claiming that “[a]t Step 2 of the analysis,
the [Acting] Commissioner finds that plaintiff has several
8 Claimant’s memorandum of law also includes a section
titled: “The Commissioner’s Decision and Findings were Not
Supported by the Record as a Whole or Substantial Evidence.”
Doc. no. 7, at 7. But rather than identifying any particular
finding that she claims to have been inadequately supported,
claimant merely lists various pieces of raw medical evidence and
subjective complaints that she says the ALJ should have
considered but did not. A mere laundry list of allegedly
overlooked evidence is no substitute for an argument that
identifies a particular legal error that allegedly resulted from
the ALJ’s failure to consider a particular piece of evidence.
For example, in Taylor v. Schweiker, 739 F.2d 1240 (7th Cir.
1984), a case on which claimant relies, the court pointed out
the ALJ’s “errors in dealing with the material contained in the
record,”
id. at 1243, in the context of remanding the case
because it was unable to conclude that the ALJ’s step 2 finding
was supported by substantial evidence, see
id. at 1242.
10
severe impairments, including but not limited to fibromyalgia;
however [he] does not further evaluate or develop the evidence
of the plaintiff’s medically determinably impairment of
fibromyalgia pursuant to SSR 12-2p.” Cl.’s Mot., doc. no. 7, at
5 (citing Social Security Ruling (“SSR”) 12-2P, 2012 WL 3104869
(S.S.A. July 25, 2012)). Lonek’s first claim has much in common
with the claim I found to be meritless in Diaz v. U.S. Social
Security Administration, Acting Commissioner, No. 14-cv-137-PB,
2015 WL 5331285 (D.N.H. Sept. 14, 2015). There, as here, the
ALJ found fibromyalgia to be a severe impairment at step 2, see
id. at *2, and the claimant “offer[ed] no specific explanation
of how the ALJ actually deviated from SSR 12-2P, providing
instead only vague and conclusory assertions that the ALJ
somehow failed to ‘properly consider the symptoms of
fibromyalgia as described in SSR 12-2p,’” id. (quoting the
record). Because Lonek has not made “any showing that the
[ALJ’s] decision is materially inconsistent with the
regulation,” id. (citing Anderson v. Colvin, No. 14-cv-15-LM,
2014 WL 5605124, at *1, *11 (D.N.H. Nov. 4, 2014)), her first
claim fails.
2. Evaluation of Dr. Kunz’s Opinion
Lonek’s second claim is somewhat difficult to parse. She
11
frames that claim this way:
The ALJ did not consider opinions and statements
from all medical sources; rather he relied on sources
that did not have a relationship with the plaintiff,
he gave weight only to selective records without any
or with defective reasoning, he relied on defective
evidence and/or ignored evidence. The ALJ improperly
discounted the opinion of plaintiff’s treatment
providers who have the most familiarity with the
plaintiff and her medical conditions. Dr. Kunz opined
that plaintiff has fibromyalgia after ruling out
numerous other diagnoses. That opinion along with
other provider’s [sic] references to fibromyalgia and
pain throughout the record go largely ignored by the
ALJ, and there is no explanation provided for the
reasons the Decision ignored this evidence by failing
to fully evaluate and develop this diagnosis and
evidence, much less even mention some of the evidence.
Cl.’s Mot., doc. no. 7, at 7. While the precise nature of
Lonek’s claim is not perfectly clear, I construe it to be a
claim that the ALJ failed to give proper weight to Dr. Kunz’s
opinion.
Lonek appears to claim that the ALJ erred by largely
ignoring Dr. Kunz’s opinion that she had fibromyalgia. But, at
step 2, the ALJ found that claimant’s fibromyalgia was a severe
impairment. It is thus difficult to see how he ignored Dr.
Kunz’s opinion. Moreover, if Lonek’s actual claim is that rather than
ignoring Dr. Kunz’s diagnosis of fibromyalgia, the ALJ erred by failing to
give the proper amount of weight to the functional limitations Dr. Kunz
identified in his RFC form, that claim fails as well.
12
Generally speaking, the Social Security Administration, and
by an extension, an ALJ, should give more weight to medical
opinions from a claimant’s treating physician(s) than to the
opinions of medical sources who have merely examined a claimant,
and should give the least amount weight to the opinions of
sources who have neither treated nor examined a claimant. See
20 C.F.R. § 404.1527(c). To that end, the regulations provide
that
[i]f [an ALJ] find[s] that a treating source’s opinion
on the issue(s) of the nature and severity of [a
claimant’s] impairment(s) is well–supported by
medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the
other substantial evidence in [the claimant’s] case
record, [the ALJ] will give it controlling weight.
20 C.F.R. § 404.1527(c)(2). Because the ALJ did not give
controlling weight to Dr. Kunz’s opinion, he was obligated to
determine the amount of weight to give that opinion by
considering: (1) the length of Lonek’s treatment relationship
with Dr. Kunz and the frequency of examination; (2) the nature
and extent of the treatment relationship; (3) the supportability
of Dr. Kunz’s opinion; (4) the consistency of that opinion with
the record as a whole; (5) Dr. Kunz’s medical specialization;
and (6) any other factors that may support or contradict the
opinion. See
20 C.F.R. §§ 404.1527(c)(2)-(6).
13
In his decision, the ALJ considered both Dr. Kunz’s twice-
expressed opinion that Lonek could only work 20 hours per week
and the limitations Dr. Kunz identified in his RFC form. The
ALJ gave little weight to those opinions because: (1) Dr. Kunz
provided no explanation for his 20-hour-per week limitation when
he first gave that opinion in May of 2013; (2) the limitations
in the RFC form “appear[ed] to be based largely on subjective
complaints of pain and fatigue that are not corroborated
elsewhere in the treatment records,” Tr. 251; and (3) at a
physical examination several months after Dr. Kunz completed his
RFC form, Lonek did not report symptoms consistent with Dr.
Kunz’s limitations, and those limitations were also not
supported by the objective findings resulting from that
subsequent examination. By identifying deficiencies in the
areas of supportability and consistency, the ALJ fulfilled his
obligation, under 20 C.F.R. § 404.1527(c)(2), to provide good
reasons for his decision to give little weight to Kunz’s
opinion.
The applicable regulations provide that “[t]he more a
medical source presents relevant evidence to support an opinion,
particularly medical signs and laboratory findings, the more
weight [an ALJ] will give that opinion.” 20 C.F.R. §
14
404.1527(c)(3). Dr. Kunz based the functional limitations he
identified on diagnoses of fibromyalgia and back pain. When
asked to “state all clinical findings and any medical test
results and/or laboratory results,” Tr. 1188, Dr. Kunz said only
this: “widespread joint [and] muscle tenderness,”
id. With
respect to Dr. Kunz’s first diagnosis, I recognize that
“musculoskeletal and neurological examinations are normal in
fibromyalgia patients, and [that] there are no laboratory
abnormalities.” Johnson v. Astrue,
597 F.3d 409, 410 (1st Cir.
2009) (quoting Harrison’s Principles of Internal Medicine 2056
(16th ed. 2005)). I also acknowledge that “‘a patient’s report
of complaints, or history, is an essential diagnostic tool’ in
fibromyalgia cases, and a treating physician’s reliance on such
complaints ‘hardly undermines his opinion as to [the patient’s]
functional limitations.’” Johnson,
597 F.3d at 412 (quoting
Green–Younger v. Barnhart,
335 F.3d 99, 107 (2d Cir. 2003)).
But Dr. Kunz did not report subjective complaints consistent
with the diagnostic criteria described in SSR 12-2P. With
respect to Dr. Kunz’s second diagnosis, back pain, he identified
no medical signs or laboratory findings that link that condition
to the functional limitations he identified. Thus, I conclude
15
that lack of supportability is a sufficient reason for the ALJ’s
decision to discount Dr. Kunz’s opinion.
The applicable regulations also provide that “[g]enerally,
the more consistent an opinion is with the record as a whole,
the more weight we will give to that opinion.” 20 C.F.R. §
404.1527(c)(4). The ALJ observed that Dr. Kunz’s opinion was
inconsistent with the symptoms claimant reported to her
neurologist during an office visit about five months after Dr.
Kunz rendered his opinion. And, indeed, the note generated by
that office visit does not document symptoms consistent with Dr.
Kunz’s opinion, and it does not even mention fibromyalgia under
the heading “problems” or the heading “diagnoses.” For her
part, claimant asserts that “other provider’s [sic] references
to fibromyalgia and pain throughout the record go largely
ignored by the ALJ,” Cl.’s Mot., doc. no. 7, at 7, but she does
not identify any particular reference that, in her view, is
consistent with Dr. Kunz’s opinion.9 As with the question of
9 In a section of her motion titled “The Commissioner’s
Decision and Findings Were Not Supported by the Record as a
Whole or Substantial Evidence,” doc. no. 7, at 7, claimant lists
several dozen references to various types of pain that appear in
her medical records, but the only references to fibromyalgia she
cites are those in Dr. Kunz’s April 18, 2014, office note and
RFC form.
16
supportability, inconsistency with the record as a whole is also
a sufficient reason for discounting Dr. Kunz’s opinion.
To summarize, substantial evidence supports the ALJ’s
determination that Dr. Kunz’s opinion was entitled to little
weight because it was both inadequately supported and
inconsistent with the record as a whole.
3. Evidence from the VE
Lonek’s third claim is that the ALJ erred in relying on the
testimony of the VE because the VE’s “testimony and evidence did
not identify jobs that were specifically available during the
relevant time period, from the alleged date of onset in 2001 to
the date last insured of 2015.” Cl.’s Mot., doc. no. 7, at 10.
On October 2, 2014, which falls between claimant’s alleged onset
date (April 1, 2001) and her date last insured (June 30, 2015),
the VE testified that a person with claimant’s RFC could perform
the jobs of recreation attendant, companion, and price marker.
He further explained that a substantial number of each of those
jobs existed at that time in New Hampshire and in the nation as
a whole.10 Thus, notwithstanding claimant’s assertion to the
10Specifically, the VE testified that there were 150
recreation attendant jobs in New Hampshire and 30,000
nationally, 120 companion jobs in New Hampshire and 31,000
nationally, and 160 price marker jobs in New Hampshire and
17
contrary, the VE did identify jobs that were available during
the relevant time period. Moreover, if Lonek’s actual claim is
that the ALJ’s decision is not supported by substantial evidence
because the VE’s testimony only applies to a single point rather
than some span of time, she provides no legal authority for that
proposition, and I am aware of none. Accordingly, Lonek’s third
argument is without merit.
4. Lack of Consultation with a Medical Advisor
Lonek’s final claim is that the ALJ committed reversible
error by failing to consult a medical advisor to aid him in
establishing an onset date for her disability. In claimant’s
words:
This matter involves an alleged onset date of April 1,
2001, more than fifteen (15) years ago. In matters
such as this where the plaintiff must establish
disability by a date far in the past and where there
is a lack of adequate medical evidence as of the
plaintiff’s onset date, SSR 83-20 applies and requires
the ALJ to infer an onset date and call on a medical
advisor to assist in doing so.
Throughout the Decision, there is little
reference to the plaintiff’s fibromyalgia, and the
evidence available prior to or around the plaintiff’s
date last insured is arguably ambiguous.
. . . .
Further, the record in this matter does not
33,000 nationally. See Tr. 176-77.
18
unambiguously establish that the plaintiff is not
disabled as of her date last insured. . . .
As this court held in the Fischer case, at the
very least, the record in this matter does not
unambiguously establish that Ms. Lonek was not
disabled as of her date last insured; thus, the ALJ is
required to consult with a medical advisor to assist
in establishing an onset date. Id. The ALJ’s refusal
to call on the services of a medical advisor and
comply with SSR 83-20 was in error and warrants
reversal of the Decision.
Cl.’s Mot., doc. no. 7, at 11-12 (citing SSR 83-20, 1983 WL
31249 (S.S.A. 1983); Fischer v. Colvin, No. 13-cv-00463-PB,
2014
WL 5502922 (D.N.H. Oct. 30, 2014), vacated by
831 F.3d 31
(2016)). Respondent argues that
[b]ecause the ALJ . . . made an express finding that
Plaintiff was not disabled as of the date of his
decision – which was during the period of insurability
– determining whether disability began before the
claimant’s [date last insured] was simply not an issue
in this case [and] because the ALJ . . . made an
express finding that Plaintiff was not disabled as of
the date of his decision, SSR 83-20 has no application
here.
Resp’t’s Mem. of Law, doc. no. 10-1, at 8-9. Respondent has the
better argument.
Lonek’s claim appears to be rooted in her allegation that
she became disabled on April 1, 2001, and her theory that the
ambiguity of the medical records from that time required the ALJ
to consult with a medical advisor to establish an onset date.
19
But unlike the claimant in Fischer, who applied for DIB in 2012,
who had a date last insured of March 31, 1998, and who claimed
to have become disabled on October 31, 1995, see 831 F.3d at 32,
Lonek was insured for DIB for approximately six months after the
ALJ rendered his decision. Thus, I am hard pressed to see how
Lonek had any need to establish that she became disabled in
2001. Not only does it appear that Lonek had no need to
establish a 2001 onset date, it is not at all clear how she
could possibly benefit from doing so, because even if she were
to establish that onset date, she could not collect benefits for
any disability she had before January 29, 2012, which is 12
months prior to the date on which she filed her application.
See
20 C.F.R. § 404.621(c) (establishing 12-month window for
retroactive disability insurance benefits).11 In sum, under the
11A claimant can receive benefits for a period of
disability in the past that has ended. See 20 C.F.R. §
404.320(b). But given the facts of this case, Lonek would not
qualify for such benefits. The ALJ determined that Lonek has
not been under a disability at any time between April 1, 2001,
and January 29, 2014. Even assuming that there is not
substantial evidence for a lack of disability for that entire
span, Dr. Nault’s RFC assessment is substantial evidence
supporting a finding that Lonek has not been disabled since
March 2, 2007. Even if Lonek could establish a closed period of
disability that ended prior to that date, any such disability
would have ended too long ago for Lonek to collect benefits for
it. See
20 C.F.R. § 404.320(b).
20
circumstances of this case, claimant’s invocation of SSR 83-20
appears to be a red herring.
That conclusion is further demonstrated by the argument in
Lonek’s motion. While she speaks of her need to “establish
disability by a date far in the past,” Cl.’s Mot., doc. no. 7,
at 11, she goes on to assert that “the evidence available prior
to or around [her] date last insured is arguably ambiguous,” id.
at 12. The problem is that her date last insured was not far in
the past; she was still insured when the ALJ made his decision.
Thus, in reality, her claim is not that the ALJ erred by failing
to consult with a medical advisor to infer an onset date but,
rather, that he erred by failing to consult with a medical
advisor to help him resolve conflicts in the evidence before him
regarding whether claimant was disabled at the time he rendered
his decision. There is nothing in SSA 83-20 that requires an
ALJ confronted with conflicting evidence such as the two RFC
assessments in this case to consult with a medical advisor to
help him or her resolve the conflict. Rather, with respect to
determining whether a claimant is disabled, ALJs are expressly
empowered to resolve conflicts in the evidence. See Irlanda
Ortiz, 955 F.2d at 769.
The bottom line is this. While Lonek claims to have become
21
disabled in 2001, there is nothing about the circumstances of
this case that compelled the ALJ to consult with a medical
advisor. For that reason, Lonek’s fourth claim fails.
IV. Conclusion
Because the ALJ committed neither a legal nor a factual
error in evaluating Lonek’s claim, see Manso-Pizarro, 76 F.3d at
16, her motion for an order reversing the Acting Commissioner’s
decision, doc. no. 7, is denied, and the Acting Commissioner’s
motion for an order affirming her decision, doc. no. 10, is
granted. The clerk of the court shall enter judgment in
accordance with this order and close the case.
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
June 12, 2017
cc: Christine Woodman Casa, Esq.
Robert J. Rabuck, Esq.
T. David Plourde, Esq.
22
