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In McManus, the court grappled with the question of when an ALJ is required by SSR 83-20 to procure the advice of a medical expert regarding the disability onset date.
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Case No. 5:04-cv-67-Oc-GRJ.
December 14, 2004
Dorothy Clay Sims, of Sims, Amat, Stakenborg Henry, P.A., Ocala, FL, Sarah Harriet Bohr, of Bohr Harrington, LLC, Atlantic Beach, FL, for Plaintiff Counselors.
Susan R. Waldron, of U.S. Attorney's Office, Middle District of FL, Tampa, FL Dennis R. Williams, John C. Stoner, Lavrie Remter, Mary Ann Sloan, all of General Counsel's Office, Social Security Administration, Atlanta, GA, for Defendant Counselors.
ORDER
Plaintiff appeals from a final decision of the Commissioner of Social Security (the "Commissioner") denying her application for a period of disability and disability insurance benefits. (Doc. 1.) The Commissioner has answered (Doc. 6), and both parties have filed briefs outlining their respective positions. (Docs. 12 13.) On November 9, 2004, at Plaintiff's request, the Court held oral argument (Doc. 21), and the matter is now ripe for review. For the reasons discussed below, the Court finds that the Commissioner's decision is due to be REVERSED and REMANDED.
I. PROCEDURAL HISTORY
Plaintiff filed an application for a period of disability and disability insurance benefits on June 18, 2001, alleging disability commencing on March 1, 1989. (R. 86-88, 106.) Plaintiff's application was denied initially and on reconsideration. (R. 51, 53.) Thereafter, Plaintiff requested a hearing (R. 64), which was held before Administrative Law Judge Herbert Rosenstein (the "ALJ") on April 30, 2003. (R. 21-50.) Plaintiff was represented by a non-attorney at the hearing. The ALJ issued a decision unfavorable to Plaintiff on June 25, 2003 (R. 13-20), and Plaintiff filed a request for review of the hearing decision on August 12, 2003. (R. 7.) The Appeals Council denied Plaintiff's request for review on January 9, 2004 (R. 3-4), making the ALJ's hearing decision the final decision of the Commissioner. On February 17, 2004, Plaintiff timely filed the instant appeal to this Court. (Doc. 1.)II. ISSUES PRESENTED
Plaintiff raises four separate issues on appeal. First, Plaintiff argues that the ALJ erred in failing to obtain the advice of a medical expert in order to ascertain the disability onset date. Second, Plaintiff contends that the ALJ's finding that Plaintiff has the residual functional capacity ("RFC") to perform sedentary work was error because the ALJ rejected the only RFC assessment in the record and his finding lacks record support. Third, Plaintiff claims that the ALJ erred by not applying the proper analytical framework in rejecting her testimony about pain and other subjective complaints. Fourth, Plaintiff argues that the ALJ erred by relying exclusively on the Medical Vocational Guidelines (the "Grids"), rather than obtaining the testimony of a vocational expert ("VE") to establish that there is other work in the national economy that the Plaintiff can perform.
See 20 C.F.R. Part 404, Subpt. P, App.2 (2003).
In response to Plaintiff's first argument, Defendant asserts that the ALJ was not required to consult a medical advisor to infer an onset date because Plaintiff was determined not to be disabled or, alternatively, because the evidence both prior to and subsequent to Plaintiff's date last insured ("DLI") was not ambiguous as to Plaintiff's condition. As to her second argument, Defendant responds that the ALJ's RFC finding was based on substantial evidence and that he was not required to adopt the findings of a non-treating consulting physician. In response to Plaintiff's third argument, Defendant contends that the ALJ properly considered Plaintiff's subjective complaints and made an adequate credibility finding, which was supported by record evidence. Finally, as to Plaintiff's fourth argument, Defendant maintains that the ALJ's reliance on the Grids was appropriate because he found that Plaintiff had no non-exertional limitations.
III. STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. Substantial evidence is more than a scintilla, i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion.
See 42 U.S.C. § 405(g).
Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971)); accord, Edwards v. Sullivan, 937 F.2d 580, 584 n. 3 (11th Cir. 1991).
Where the Commissioner's decision is supported by substantial evidence, the district court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if the reviewer finds that the evidence preponderates against the Commissioner's decision. The district court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. However, the district court will reverse the Commissioner's decision on plenary review if the decision applies incorrect law, or if the decision fails to provide the district court with sufficient reasoning to determine that the Commissioner properly applied the law.
Edwards, 937 F.2d at 584 n. 3; Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991).
Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (holding that the court must scrutinize the entire record to determine reasonableness of factual findings); Parker v. Bowen, 793 F.2d 1177 (11th Cir. 1986) (finding that the court also must consider evidence detracting from evidence on which the Commissioner relied).
Keeton v. Dep't Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).
The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death, or has lasted or can be expected to last for a continuous period of not less than twelve months. The impairment must be severe, making Plaintiff unable to do her previous work, or any other substantial gainful activity which exists in the national economy.
42 U.S.C. §§ 416(i), 423(d)(1); 20 C.F.R. § 404.1505.
42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.
The ALJ must follow five steps in evaluating a claim of disability. First, if a claimant is working at a substantial gainful activity, she is not disabled. Second, if a claimant does not have any impairment or combination of impairments which significantly limit her physical or mental ability to do basic work activities, then she does not have a severe impairment and is not disabled. Third, if a claimant's impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, she is disabled. Fourth, if a claimant's impairments do not prevent her from doing past relevant work, she is not disabled. Fifth, if a claimant's impairments (considering her RFC, age, education, and past work) prevent her from doing other work that exists in the national economy, then she is disabled.
20 C.F.R. §§ 404.1520, 416.920. The claimant has the burden of proving the existence of a disability as defined by the Social Security Act. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991).
The burden of proof regarding the plaintiff's inability to perform past relevant work initially lies with the plaintiff. The burden then temporarily shifts to the Commissioner to demonstrate that "other work" which the claimant can perform currently exists in the national economy. The Commissioner may satisfy this burden by pointing to the Grids for a conclusive determination that a claimant is disabled or not disabled.
Walker v. Bowen, 826 F.2d 996, 1002 (11th Cir. 1987). See also Doughty v. Apfel, 245 F. 3d 1274, 1278 (11th Cir. 2001).
Doughty, 245 F.3d at 1278 n. 2 ("In practice, the burden temporarily shifts at step five to the Commissioner. The Commissioner must produce evidence that there is other work available in significant numbers in the national economy that the claimant has the capacity to perform. In order to be considered disabled, the claimant must then prove that he is unable to perform the jobs that the Commissioner lists. The temporary shifting of the burden to the Commissioner was initiated by the courts, and is not specifically provided for in the statutes or regulations.") (Internal citations omitted).
Walker, 826 F.2d at 1002 ("[T]he grids may come into play once the burden has shifted to the Commissioner to show that the claimant can perform other work.")
However, the ALJ should not exclusively rely on the grids when "the claimant has a non-exertional impairment which significantly limits his or her basic work skills or when the claimant cannot perform a full range of employment at the appropriate level of exertion." In a situation where both exertional and non-exertional impairments are found, the ALJ is obligated to make specific findings as to whether they preclude a wide range of employment.
Wolfe v. Chater, 86 F.3d 1072, 1077 (11th Cir. 1996). See Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999); Walker, 826 F.2d at 1003 ("the grids may be used only when each variable on the appropriate grid accurately describes the claimant's situation").
Walker, 826 F.2d at 1003.
The ALJ may use the grids as a framework to evaluate vocational factors so long as he introduces independent evidence of the existence of jobs in the national economy that the claimant can perform. Such independent evidence may be introduced by a vocational expert's testimony, but this is not the exclusive means of introducing such evidence. Only after the Commissioner meets this burden does the burden shift back to the claimant to show that he or she is not capable of performing the "other work" as set forth by the Commissioner.
Wolfe, 86 F.3d at 1077-78.
See id.
See Doughty, 245 F.3d at 1278 n. 2.
IV. SUMMARY OF THE RECORD EVIDENCE
In his review of the record, including Plaintiff's testimony and the medical records from several health care providers, the ALJ determined that Plaintiff suffers from systemic lupus and hypertension, impairments that are severe within the meaning of the regulations, but not severe enough to meet or equal those listed in Appendix 1, Subpart P of Social Security Regulation No. 4. (R. 16.) Therefore, the ALJ went on to determine that the Plaintiff had the RFC to "lift and carry 10 pounds frequently, 20 pounds occasionally, sit for 6 hours and stand and walk for 2 hours and is unlimited in pushing and pulling. (R. 18.) Based on this RFC the ALJ concluded that Plaintiff could not perform her past relevant work, but could perform the full range of sedentary work available in the national economy. (R. 19-20.)Plaintiff was forty-three (43) years old at the alleged time of disability onset, forty-eight (48) years old on the DLI, March 31, 1994, and fifty-seven (57) years old at the time of the ALJ's final decision. (R. 25.) She is a high-school graduate with previous work experience as a housekeeper, cleaning private homes for one or two days per week from 1981 until 1989. (R. 98, 103.) Her work as a housekeeper required the lifting and carrying of vacuum cleaners and buckets, sometimes up and down multiple levels of stairs. (R. 27.) The work required Plaintiff to walk, stand, climb, stoop, kneel, crouch, occasionally crawl, handle big and small objects, and not sit at all. (R. 98.)
In a disability report dated July 5, 2001, Plaintiff stated that her ability to work was limited because of severe fatigue, arthritis, hypertension, shortness of breath, heart palpitations, problems with concentration, pain, Raynaud's syndrome, and swelling of feet and ankles. (R. 97.) Plaintiff stated, "I could not continue my job because of physical limitations. The more I tried to work, the worse the symptoms got." (R. 97.)
Hypertension is persistently high arterial blood pressure.
A palpitation is a subjective sensation of a rapid, irregular or forceful beating of the heart.
Raynaud's syndrome is a disease marked by spasms of the blood vessels in the limbs that causes the affected limb to have a bluish discoloration. It is typically caused by exposure to cold or emotional strain.
Plaintiff testified that her fatigue would affect her in the middle of activities, without warning, and she would have to stop what she was doing and lay down. (R. 47.) Additionally, Plaintiff stated that her symptoms are unpredictable and some days she is able to complete some tasks and on others she cannot complete anything. (R. 40-41.) Plaintiff explained that she could walk between twenty and thirty minutes, sit about thirty minutes, stand between fifteen and twenty minutes, lift a gallon of milk, and drive a car for about one hour at a time. (R. 34-36.)
Medical laboratory test reports from the years 1989 through 1994 — which represent the earliest medical evidence contained in the record — reveal that Plaintiff's test results have a correlation with several possible diseases, including mixed connective tissue disease, chronic active hepatitis, systemic lupus erythematosus ("SLE"), rheumatoid arthritis, systemic sclerosis, and Raynaud's disease. (R. 183-89.) Additionally, the word "lupus" is handwritten on the face of the laboratory reports, in at least three separate locations. (R. 187-89.)
Mixed connective tissue disease is characterized by a set of symptoms including Raynaud's syndrome, swollen hands, joint pains, sluggishness of the esophagus, inflammation of upper muscles of limbs, and lung disease.
Chronic active hepatitis is a form of continuing liver inflammation that results in liver cell death.
SLE is a disease wherein an individual's immune system reacts against their own organs. Common symptoms include fever, joint pain, rash, fatigue, weakness, and arthritis.
Rheumatoid arthritis is a chronic inflammatory disease in which there is destruction of joints.
Systemic sclerosis is a disorder characterized by the scarring of skin, blood vessels, and internal organs.
In July 1993, Plaintiff underwent a complete abdominal hysterectomy. (R. 213.) In examinations and tests performed in preparation for the surgery, it was noted that she had a history of tachycardia and that an echocardiogram revealed concentric left ventricular hypertrophy and small pericardial effusion. (R. 211-18.) However, no mention of lupus was made in any of the medical records from around the time of the surgery.
An abdominal hysterectomy is a surgical procedure wherein the uterus is excised through the abdominal wall.
Tachycardia is excessively rapid beating of the heart.
Hypertrophy refers to an enlargement of an organ due to an increase in size of its constituent cells.
Pericardial effusion is a collection of fluid in the membrane around the heart.
In January 1994, Plaintiff's primary care physician, Dr. Nicholas Gatto, referred her to Dr. Steven Rosner for evaluation of lupus. (R. 209.) Plaintiff informed Dr. Rosner that she had been experiencing joint pain since December 1993 and also experienced fatigue, photosensitivity, tingling and pain in her fingers and toes, and a decreased ability to concentrate. (R. 209.) After performing a physical examination, Dr. Rosner found a facial rash, swelling and tenderness over some finger and toe joints, and tenderness in the spine. (R. 209.) Dr. Rosner concluded that Plaintiff had "symptoms of SLE but serologies more consistent with mixed connective tissue disease or Raynaud's disease." (R. 210.) For treatment, Dr. Rosner recommended a change in blood pressure medication, cortisone cream for the rash, avoidance of the sun, and a low dose of prednisone, a steroid. (R. 210.)
The records disclose that Plaintiff regularly saw Dr. Gatto as a primary care physician from February 1994 through May 1999. (R. 197-208.) During 1994, Dr. Gatto diagnosed essential hypertension, cardiac arrhythmia, and arthritis and prescribed the medications Zestril, Lopressor, Dyrenium, prednisone, Premarin/Provera, and ACTH. (R. 207-08.) Following Plaintiff's visit to Dr. Rosner, Dr. Gatto, on March 10, 1994, noted that Plaintiff was feeling more energetic and exercising on a ski machine. (R. 208.) On April 11, 1994, Dr. Gatto wrote that Plaintiff was doing twenty (20) minutes of exercise per day. (R. 208.) In June 1994, Dr. Gatto reported that Plaintiff was no longer taking prednisone and that her joints had improved but that they were affected by hot, damp weather. (R. 207.) However, on November 28, 1994, Dr. Gatto noted hand joint inflammation. (R. 201.)
Arrhythmia is a variation from the normal rhythm of the heart beat.
ACTH stands for adrenocorticotrophic hormone, which is produced by the pituitary gland.
On November 20, 1995, Dr. Rosner left a phone message for Dr. Gatto stating that Plaintiff was negative for lupus. (R. 200.) In February 1996, Plaintiff presented to Dr. Gatto's office with headaches and dizziness, but Plaintiff reported these symptoms had improved just five days later. (R. 199-200.) On July 15, 1997, Dr. Gatto noted that Plaintiff's ANA and RA were both elevated, and decided to observe the condition and consult Dr. Rosner if the readings were not lower in 3 months. (R. 197.) On September 22, 1998 Dr. Gatto reported that Plaintiff's joint pain and fatigue had both improved. (R. 203.) In December 1998, Plaintiff reported symptoms of heart palpitations, shortness of breath, dizziness, feeling weak and tired, and feeling warm, but Plaintiff also inquired when she could again start walking and when she could return to the gym for weight lifting. (R. 204.) On February 22, 1999, Dr. Gatto again found that Plaintiff had elevated ANA. (R. 206.)
ANA stands for antinuclear antibody, which is an antibody that reacts against components of the cell nucleus. It is found in individuals suffering from numerous diseases, including SLE and rheumatoid arthritis.
RA stands for ragocyte, which is a type of white blood cell found in the joints of patients with rheumatoid arthritis.
Plaintiff was hospitalized in May 1999 for "out of control" hypertension. (R. 152.) Her new primary care physician, Dr. Robin Feigelis, saw Plaintiff for a routine blood pressure check on May 25, 1999. (R. 152.) Plaintiff reported that she felt completely well and had no headaches, dizziness, shortness of breath, or nausea. (R. 152.) However, Plaintiff became ill just two days later and was admitted to the hospital through the emergency room. (R. 152.) Dr. Feigelis examined the results of extensive testing performed at the hospital and concluded that Plaintiff had a "probable minute hypertensive bleed." (R. 153.)
The record also contains three questionnaires, solicited by the State agency evaluating Plaintiff's claim, from Drs. Ian Levy, Feigelis, and Gilbert Kepecs. (R. 148-50, 165-67, 173-79.) In his report Dr. Levy confirmed that he saw Plaintiff from June 1999 until June 2000 for treatment of hyperthyroidism. (R. 148-49.) Dr. Levy reported that Plaintiff responded excellently to treatment for hyperthyroidism. (R. 149.) The report from Dr. Feigelis simply states that Plaintiff has a history of lupus, for treatment of which, he referred Plaintiff to Dr. Kepecs, a rheumatologist. (R. 165-66.)
Hyperthyroidism is a disease marked by increased metabolic rate, enlargement of the thyroid gland, rapid heart rate, high blood pressure, and various secondary symptoms.
Dr. Kepecs's state agency report, filed with supporting medical records and an incomplete letter addressed to Dr. Feigelis, states that Plaintiff suffered from SLE, possible limited scleroderma, fibromyalgia, shoulder bursitis, and arthritis. (R. 174.) According to the letter of August 14, 2001, Plaintiff reported to Dr. Kepecs that her symptoms included occasional, variable pain in her elbows, hands, and knees; fatigue; low-grade fevers; oral ulcers, which do not last long; occasional sore throat; Raynaud's without damage; one brief episode of rash; back pain; sleep disturbance; headache; hip stiffness; arm tingling; and intermittent swelling of the feet and ankles. (R. 178.) Dr. Kepecs noted Plaintiff took only aspirin to treat her pain and that the most prominent symptom was fatigue. (R. 178.)
On September 10, 2001, Dr. Kepecs reported that Plaintiff's arm pain was cured with an injection; her fatigue and diffuse aching were still significant but much better since she began taking Vioxx; and her low back pain was better with medication. (R. 179.) Dr. Kepecs observed that Plaintiff walked with a normal gait and had no difficulty getting out of a chair. (R. 179.) On November 14, 2001, Dr. Kepecs stated that Plaintiff's sleep is much better with medication and that she has little pain with Vioxx. (R. 179.) At that appointment, he observed that Plaintiff had some difficulty getting out of a chair and that her gait was initially antalgic but rapidly normalizing. (R. 179.)
An antalgic gait means a style of walking adopted to alleviate pain.
The record contains a report entitled "Medical Source Statement of Plaintiff's Ability to Do Work-Related Activities (Physical)," dated March 31, 2002. (R. 193-96.) The report reflects that lifting/carrying are not affected by the impairment, but also contains a check in a box that states Plaintiff can only lift less than ten pounds and can do that only occasionally. (R. 193.) According to the report, standing, walking, and sitting were unaffected by the impairment. (R. 193-94.) Additionally, the report reflects that Plaintiff could only occasionally climb, kneel, crouch, or stoop, and could never balance or crawl. (R. 194.) The report also notes that Plaintiff is unlimited in the manipulative functions (reaching, handling, fingering, feeling) and the visual/communicative functions (seeing, hearing, speaking). (R. 195.) Finally, as to environmental limitations, Plaintiff was unlimited by temperature extremes, noise, vibration, or humidity/wetness, but was limited by dust, hazards, and fumes or gases. (R. 196.)
V. DISCUSSION
A. The ALJ Committed Reversible Error By Failing To Consult a Medical Expert
Plaintiff argues that the ALJ erred by failing to obtain the advice of a medical expert regarding the onset date of disability. Plaintiff contends that Social Security Ruling ("SSR") 83-20 and the case law interpreting it required the ALJ to seek the advice of a medical expert. The Court finds that the ALJ was required to obtain the advice of a medical expert because the ALJ's conclusion that the Plaintiff's condition did not become disabling at any time on or around the DLI was not supported by adequate and unambiguous medical evidence.
SSR 83-20 states the policy and describes the relevant evidence to be considered when establishing the onset date of disability. "Factors relevant to the determination of disability onset include the individual's allegation, the work history, and the medical evidence." "However, the individual's allegation, or the date of work stoppage, is significant in determining onset only if it is consistent with the severity of the condition(s) shown by the medical evidence."
SSR 83-20.
Id.
In the case of slowly progressive impairments "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." In such a case, the ruling cautions that "the administrative law judge (ALJ) should call on the services of a medical advisor when onset must be inferred."
Id.
Id. When inferring an onset date before the first medical examination, the services of a medical advisor are necessary to provide a legitimate medical basis for the judgment.Id.
Although the Eleventh Circuit has not considered the issue of when an ALJ is required to obtain the advice of a medical expert, several other Circuits have interpreted the medical expert provision of SSR 83-20. The Seventh and Sixth Circuits have applied a restrictive interpretation of SSR 83-20. In Scheck, a Seventh Circuit case, and in Key, a Sixth Circuit case, the view was adopted that SSR 83-20 has no application to cases in which the ALJ does not find the claimant to be disabled because in the absence of a finding of disability there is no reason to determine the date of onset.
See, e.g., Walton v. Halter, 243 F.3d 703, 709 (3d Cir. 2001); Bailey v. Chater, 68 F.3d 75, 79 (4th Cir. 1995);Spellman v. Shalala, 1 F.3d 357, 363 (5th Cir. 1993); Key v. Callahan, 109 F.3d 270, 274 (6th Cir. 1997); Scheck v. Barnhart, 357 F.3d 697, 701 (7th Cir. 2004); Henderson ex rel Henderson v. Apfel, 179 F.3d 507, 513 (7th Cir. 1999);Grebenick v. Chater, 121 F.3d 1193, 1201 (8th Cir. 1997);Armstrong v. Commissioner, 160 F.3d 587, 590 (9th Cir. 1998);Reid v. Chater, 71 F.3d 372, 374 (10th Cir. 1995).
Scheck, 357 F.3d at 701 ("The ALJ did not find that Scheck was disabled, and therefore, there was no need to find an onset date. In short, SSR 83-20 does not apply."); Key, 109 F.3d at 274 ("The Commissioner responds to this argument by asserting that SSR 83-20 is not applicable to this case, since this policy statement applies only when there has been a finding of disability and it is necessary to determine when the disability began. We agree.").
Other courts of appeal, however, have taken a less restrictive view of the text of SSR 83-20. The Eighth and the Third Circuits have both held — in cases where the claimant's impairment is slowly progressive and the ALJ is required to make a retroactive inference of disability prior to the date last insured — that the ALJ is required to call upon the services of a medical advisor, if the medical evidence during that time period is ambiguous or inadequate.
Walton, 243 F.3d at 709 (medical advisor required where "[a]dequate medical records for the most relevant period were not available;" the "impairment was a slowly progressive one and the alleged onset date was far in the past); Grebenick, 121 F.3d at 1201 (whether a medical advisor is required turns on "whether the evidence is ambiguous regarding the possibility that the onset of [the claimant's] disability occurred before the expiration of her insured status" and whether "a retroactive inference is necessary"). This view was also followed by Judge Hodges inAurednick v. Sullivan, 733 F.Supp. 1460 (M.D.Fla. 1990) in which the Court adopted a report and recommendation from a magistrate judge in which the magistrate judge noted that SSR ruling 83-20 was applicable to the ALJ's determination of whether the claimant was disabled prior to the date last insured.
Because the issue of onset is inextricably tied to the determination of disability in cases where the impairment is a slowly progressive condition that is not traumatic in origin, the Court concludes that the most logical interpretation of SSR 83-20 is to apply it to situations where the ALJ is called upon to make a retroactive inference regarding disability involving a slowly progressive impairment, and the medical evidence during the insured period is inadequate or ambiguous. Accordingly, in those situations the ALJ should be required to obtain the advice of a medical advisor to assist the ALJ in making the determination from the available medical evidence of whether the slowly progressive impairment constituted a disability prior to the date last insured.
In the instant case, the Court concludes that Plaintiff's impairment was a slowly progressive one and that the ALJ was required to make a retroactive inference regarding the onset and existence of disability and, thus, SSR 83-20 is implicated.
With regard to the progressive nature of Plaintiff's impairment, Plaintiff's condition had existed in some form from approximately 1989 until the time of the hearing, notwithstanding that Plaintiff's condition and diverse symptomatology has been characterized from time to time as SLE, generic connective tissue disease and some other names. Simply put, the medical evidence of record can be fairly characterized as a progressive ailment in that Plaintiff has an impairment involving a gradual worsening of her health and well-being through the years rather than an impairment that had a traumatic origin.
The ALJ in the instant case also was called upon to make a retroactive inference regarding whether the onset and existence of Plaintiff's disability occurred before the expiration of the insured period. Plaintiff filed her application for disability benefits on June 18, 2001, and the ALJ issued his decision on June 25, 2003. In her application, Plaintiff claimed a disability onset date of March 1, 1989. Her DLI was March 31, 1994, over nine years prior to the ALJ's decision. Thus, the relevant period of time for the ALJ to consider was between nine and fourteen years in the past.
Although the Court has determined that SSR ruling 83-20 may be applicable, the ALJ is only required to secure the assistance of a medical advisor where the medical evidence of record is ambiguous or inadequate. In making this determination, the Court must consider the medical records generated prior to the DLI as well as the medical records generated subsequent to the DLI.
Turning first to the medical evidence prior to the DLI, the only medical evidence from this time period consists of laboratory reports from 1989 through 1994, records from Plaintiff's hospitalization for her hysterectomy in 1993, and Dr. Rosner's letter describing his January 1994 evaluation of the Plaintiff. Indeed, the ALJ recognized the paucity of medical records prior to the DLI by noting that "no further medical reports dated prior to the date last insured, were in the evidence of record."
The laboratory reports mentioned by the ALJ contain little with regard to any functional limitations of Plaintiff and primarily describe correlations between test results and the possible presence of diseases. The few places where the word "lupus" is handwritten onto the laboratory reports is at best inconclusive to show either the presence or absence of lupus.
Similarly, the hysterectomy records from 1993 contain little, if any, evidence with regard to whether or not Plaintiff's impairment restricted her ability to perform any work related activities. Although the records from the hysterectomy disclose that Plaintiff received uterine and cardiac evaluations in preparation for her surgery, the records have little to no relevance to her primary physical impairment, involving her joints and connective tissues. Accordingly, the 1993 records do not provide any "legitimate medical basis" with regard to functional limitations or the severity of the impairment involving Plaintiff's joints and connective tissues.
With regard to Dr. Rosner's letter dated February 8, 1994 — the only other medical evidence prior to the DLI — while relevant to Plaintiff's impairment, is ambiguous and inconclusive as to the extent of Plaintiff's condition. Dr. Rosner found "symptoms of SLE but serologies more consistent with mixed connective tissue disease or Raynaud's disease." The fact that Plaintiff's doctor, at that point, had not determined whether Plaintiff had SLE or Raynaud's disease underscores the fact that the medical evidence prior to the DLI is ambiguous both as to the diagnosis of Plaintiff's impairment as well as to whether the impairment was disabling.
Defendant, in her brief, points to the fact that, on March 10, 1994, a few weeks prior to the DLI, Dr. Gatto's notes reflect that Plaintiff was feeling more energetic and exercising on a ski machine. These out of context remarks are insufficient in the absence of other contemporaneous medical evidence to constitute a legitimate medical basis for a finding of disability.
Notably, the evidence relied upon by the ALJ does not contain any medical records prior to the DLI relating to Plaintiff's ability to perform work functions. There are no recommendations from doctors concerning Plaintiff's ability to lift, stand, sit, carry, or complete any other work related tasks. Likewise, there is no evidence prior to the DLI that Plaintiff ever inquired of her doctors about her ability to work. Because of the ambiguity in the scant medical evidence prior to the DLI, the ALJ focused on the medical evidence after the DLI to support his conclusion of not disabled.
While it was not error for the ALJ to consider the evidence after the DLI, upon review of this medical evidence, the Court concludes that this medical evidence is, nonetheless, ambiguous and inadequate and does not constitute a legitimate medical basis for determining whether Plaintiff was disabled prior to the DLI.
The post-DLI evidence relied upon by the ALJ consists of records from Plaintiff's 1999 hospitalization for out-of-control hypertension and the three state agency questionnaires with supporting documentation, completed by Drs. Levy, Feigelis, and Kepecs. The 1999 hospital records provide strong evidence regarding Plaintiff's hypertensive impairment. However, these records fail to address the severity of Plaintiff's condition prior to 1999, much less five years earlier at the DLI.
The questionnaires completed by Drs. Levy and Feigelis have little relevance to the issue of Plaintiff's disability. Dr. Levy's questionnaire discloses that he is an endocrinologist who successfully treated Plaintiff for hyperthyroidism. This questionnaire provides no evidence regarding the presence or absence of Plaintiff's allegedly disabling condition. Similarly, Dr. Feigelis's questionnaire provides no evidence which the ALJ could have used in support of his decision. Dr. Feigelis' report simply reflects that he referred Plaintiff to the rheumatologist, Dr. Kepecs, for evaluation of lupus.
With regard to the questionnaire completed by Dr. Krepecs, the evidence is at best ambiguous with regard to the severity of Plaintiff's condition. Dr. Kepecs found that Plaintiff was suffering from SLE and several secondary conditions. He also made note of Plaintiff's numerous symptoms. Although his report is relevant as to Plaintiff's condition it offers little with regard to whether Plaintiff's condition necessitated any specific restrictions on her work skills.
Accordingly, the Court concludes that the medical evidence of record — both before the DLI, as well as after the DLI — is inadequate and ambiguous to provide a legitimate medical basis to support the ALJ's finding that Plaintiff was not disabled prior to the DLI. Because the ALJ was required to make a retroactive inference regarding the existence of a disability caused by a slowly progressive impairment and the medical evidence of record was inadequate and ambiguous with regard to whether Plaintiff was disabled on or before the DLI, the ALJ was required to call upon the services of a medical advisor to assist him in the determination of whether Plaintiff became disabled prior to the DLI. Therefore, the ALJ's finding of no disability in this case is not supported by substantial evidence and is due to be reversed and remanded to the commissioner for a further hearing so that the ALJ can obtains the assistance of a medical advisor on the issue of whether the Plaintiff was disabled prior to the DLI.
B. Remaining Issues
As the Court has determined that remand is warranted based on the first issue raised by Plaintiff, the Court finds that it is unnecessary to consider the remaining issues regarding the ALJ's RFC determination, credibility finding, and use of the Grids.
Because there will be additional medical evidence from a medical advisor on remand the Commissioner will have to determine Plaintiff's RFC anew, taking account of the newly acquired evidence. Further, the additional medical evidence may require a reassessment of Plaintiff's credibility if the additional medical evidence is inconsistent with Plaintiff's testimony and may impact the ALJ's determination of whether it is appropriate to rely exclusively on the Grids.
VI. CONCLUSION
In view of the foregoing, the decision of the Commissioner is due to be REVERSED and REMANDED under sentence four of 42 U.S.C. § 405(g) to the Commissioner, for an Administrative Law Judge to: (1) obtain the advice of a medical expert, concerning the issue of disability prior to the DLI, and determine, based on substantial evidence, whether Plaintiff was disabled prior to the DLI; and (2) conduct any additional proceedings the Commissioner deems appropriate. The Clerk is directed to enter a final judgment in favor of the Plaintiff, terminate all pending motions and close the file.
IT IS SO ORDERED.
DONE AND ORDERED.