JERRY H. RITTER, Magistrate Judge.
This matter comes before the Court on Andrew T. Romero's Motion to Reverse and Remand for a Rehearing with Supporting Memorandum [Doc. 16], filed November 13, 2018. Having studied the parties' briefing and the relevant portions of the Administrative Record ("AR"),
Mr. Romero's argument for reversal of the administrative law judge's ("ALJ") decision in this case is a narrow one. Having found him to be disabled, Mr. Romero argues that, under the pertinent Social Security Ruling ("SSR")
The ALJ based his finding of disability on the date of a consultative examination conducted by Eligio R. Padilla, Ph.D. Dr. Padilla determined that Mr. Romero's symptoms were disabling despite mental health treatment he was receiving. Mr. Romero argues, and the Court finds, that the ALJ's use of the date Mr. Romero was examined by Dr. Padilla as the date he became disabled is not supported by substantial evidence. Rather, where, as here, there was evidence of a potentially disabling condition prior to the date of the consultative examination, Mr. Romero's onset date was ambiguous. This being the case, the ALJ was obligated to employ the services of a medical advisor to determine Mr. Romero's onset date. Because he failed to do so, the ALJ's decision must be reversed and remanded for further proceedings.
Mr. Romero filed applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act on July 2, 2009. AR at 121-130. He initially alleged a disability onset date of February 1, 2007, due to back and leg injuries and psychological problems. AR at 144, 167. The Administration denied Mr. Romero's claims initially and upon reconsideration, and he requested a de novo hearing before an ALJ. AR at 66-88.
ALJ Barry O'Melinn held a hearing at which Mr. Romero and a vocational expert testified on November 15, 2011. AR at 24-65. ALJ O'Melinn issued a decision denying Mr. Romero's claims on March 13, 2012. See AR at 10-19. The Appeals Council declined to review ALJ O'Melinn's decision, and it accordingly became the final decision of the Commissioner. AR at 1-5. Mr. Romero then filed a lawsuit challenging the Commissioner's decision in this Court, resulting in a remand on September 8, 2018. AR at 380-387.
While his first civil action was pending, Mr. Romero filed a subsequent claim for Title XVI benefits on May 1, 2013. AR at 500-508. This application was also denied at the initial and reconsideration levels. AR at 365-366. However, on October 23, 2014, the Appeals Council issued an order consolidating the claim files and vacating the final decision of the Commissioner on the basis of the September 8, 2014 remand Order. AR at 388-392.
ALJ O'Melinn held a second hearing on August 26, 2015. AR at 316-347. After this hearing, ALJ O'Melinn denied Mr. Romero's claim on October 19, 2015. AR at 286-315. Mr. Romero then filed a second civil action seeking the reversal of the ALJ's decision and, on March 10, 2017, this Court issued an Order remanding Mr. Romero's case to the Administration for further proceedings. AR at 1209-1225. While this action was pending Mr. Romero filed a third application for Title XVI benefits on February 3, 2016. As the case was previously remanded to ALJ O'Melinn, the Appeal Council remanded the case to a different ALJ on April 24, 2017. AR at 1206-1207.
A third hearing on Mr. Romero's consolidated claims was held on November 28, 2017, before ALJ Eric Weiss ("the ALJ"). AR at 1057-1091. At this hearing Mr. Romero amended his alleged onset date to November 5, 2010. AR at 1060-1061. The ALJ issued a partially favorable decision on February 23, 2018, finding Mr. Romero to be disabled as of June 20, 2016, but not before that date. See AR at 1014-1056. Pertinent here, the ALJ determined that Mr. Romero was "not under a disability within the meaning of the Social Security Act at any time through June 30, 2011, the date last insured." AR at 1019. The Appeals Council did not assume jurisdiction over the case, and so ALJ Weiss' decision became the final decision of the Commissioner. See 20 C.F.R. §§ 404.984(d), 416.1484(d). This Court now has jurisdiction to review the decision pursuant to 42 U.S.C. § 405(g) and 20 C.F.R. § 422.210(a).
A claimant seeking disability benefits must establish that he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). The Commissioner must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
At Step One of the sequential evaluation process, the ALJ found that Mr. Romero has not engaged in substantial gainful activity since his amended alleged onset date, November 5, 2010. AR at 1021. At Step Two, he determined that Mr. Romero has had the following severe impairments since his alleged onset date: "chronic obstructive pulmonary disease; lumbar osteoarthritis with radiculopathy; right hip degenerative joint disease; left foot 1st toe joint osteoarthritis; bilateral acromioclavicular joint arthritis; major depressive disorder; and personality disorder." AR at 1021. At Step Three, the ALJ concluded that Mr. Romero's impairments do not meet or medically equal the regulatory "listings." AR at 17-18. Mr. Romero does not challenge these findings on appeal.
When a claimant does not meet a listed impairment, the ALJ must determine his residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(e), 416.920(e). "RFC is not the least an individual can do despite his or her limitations or restrictions, but the most." SSR 96-8p, 1996 WL 374184, at *1. In this case, the ALJ determined that prior to June 20, 2016, Mr. Romero retained the RFC to:
AR at 1025. However, after June 20, 2016, the ALJ found that Mr. Romero's RFC would be further limited, resulting in a finding of disability. AR at 1042-1043. Specifically, the ALJ determined that, as of June 20, 2016, "due to physical and mental impairments, he will be off task more than one hour each workday in addition to normally scheduled breaks, and will be absent from the workplace 2 days each month." AR at 1039. Relying on his RFC findings at Steps Four and Five, the ALJ determined that there were jobs that Mr. Romero could have performed prior to June 20, 2016, but that, as of that date, there were no jobs that exist in the national economy that Mr. Romero can perform. See AR at 1042-1043. Accordingly, the ALJ found that Mr. Romero was not disabled prior to June 20, 2016, but became disabled on that date. AR at 1043. As such, the ALJ found that Mr. Romero failed to demonstrate a disability for the purposes of his Title II claim, having failed to establish disability prior to his date last insured, but was disabled as of June 20, 2016, for the purposes of his Title XVI claim. AR at 1044.
This Court "review[s] the Commissioner's decision to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied." Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (quoting Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014;)). A deficiency in either area is grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012). "[T]he agency's `failure to apply the correct legal standards, or to show us that it has done so' is `grounds for reversal.'" Bryant v. Comm'r, SSA, 753 F. App'x 637, 640 (10th Cir. 2018) (unpublished) (quoting Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996)).
The parties agree that SSR 83-20 controls in this case. SSRs are "binding on all components of the Social Security Administration." 20 C.F.R. § 402.35(b)(1). SSR 83-20 discusses how the Administration assess the "onset date of disability under the provisions of Titles II and XVI of the Social Security Act (the Act) and implementing regulations." SSR 83-20, 1983 WL 31249, at *1. As stated therein, "[t]he onset date of disability is the first day an individual is disabled as defined in the Act and the regulations." SSR 83-20, 1983 WL 31249, at *1. "In many claims, the onset date is critical; it may affect the period for which the individual can be paid and may even be determinative of whether the individual is entitled to or eligible for any benefits." SSR 83-20, 1983 WL 31249, at *1.
The SSR distinguishes between onset dates in disabilities with traumatic origin, and those with nontraumatic origin, SSR 83-20, 1983 WL 31249, at *1, and the parties agree that it is the latter that applies to Mr. Romero's mental impairments in this case. As stated in the SSR:
SSR 83-20, 1983 WL 31249, at *2. "[T]he established onset date must be fixed based on the facts and can never be inconsistent with the medical evidence of record." SSR 83-20, 1983 WL 31249, at *3. "How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the administrative law judge (ALJ) should call on the services of a medical advisor when the onset must be inferred." SSR 83-20, 1983 WL 31249, at *3. "The onset date should be set on the date when it is most reasonable to conclude from the evidence that the impairment was sufficiently severe to prevent the individual from engaging in SGA (or gainful activity) for a continuous period of at least 12 months or result in death. Convincing rationale must be given for the date selected." SSR 83-20, 1983 WL 31249, at *3.
The parties also agree that the controlling Tenth Circuit case is Blea v. Barnhart, 466 F.3d 903 (10th Cir. 2006). There, the Tenth Circuit examined the requirements of SSR 83-20, and concluded that it had not been met. See id. at 909. Of note, the court recognized that "[m]edical evidence ... is the `primary element' for the onset determination, as the onset date `can never be inconsistent with the medical evidence of record.'" Id. (quoting SSR 83-20 at 2-3). The court also quoted the Eighth Circuit for the following proposition:
Id. at 911 (quoting Grebenick v. Chater, 121 F.3d 1193, 1200-1201 (8th Cir. 1997)). In other words, "where `medical evidence of onset is ambiguous,' an ALJ is obligated to call upon the services of a medical advisor." Id. (quoting Reid v. Chater, 71 F.3d 372, 374 (10th Cir. 1995)). "The requirement that, in all but the most plain cases, a medical advisor be consulted prior to inferring an onset date is merely a variation on the most pervasive theme in administrative law — that substantial evidence support an agency's decisions." Id. at 913 (citation omitted). "Thus, the issue of whether the ALJ erred by failing to call a medical advisor turns on whether the evidence concerning the onset of [the claimant's] disabilities was ambiguous, or alternatively, whether the medical evidence clearly documented the progression of his conditions." Id. at 912. If the medical evidence is not ambiguous regarding the onset date of the claimant's disability, then the ALJ is not required to call a medical advisor. See, e.g., Bigpond v. Astrue, 280 F. App'x 716, 719 (10th Cir. 2008) (unpublished).
Mr. Romero argues that "SSR 83-20 is relevant in this case in regards to Mr. Romero's mental impairments stemming from sexual abuse experienced in childhood which have progressed over time." [Doc. 16, p. 18]. In other words, Mr. Romero argues that his alleged onset date is ambiguous and that the ALJ was required to call a medical advisor to infer his onset date. The Commissioner disagrees, arguing that the ALJ "reasonably determined that Plaintiff became disabled on June 20, 2016." [Doc. 18, p. 4]. For the reasons that follow, the Court finds that Mr. Romero has the more persuasive argument in this case.
"The question before this Court is whether the medical evidence regarding Plaintiff's impairments, and the time at which they became disabling, is ambiguous." Quezada v. Colvin, CV 15-0282 LAM, 2016 WL 10179362, at *8 (D.N.M. 2016). The Court reiterates that, under SSR 83-20, the ALJ's rationale for the date selected must be "convincing." SSR 83-20, 1983 WL 31249, at *3. Here, the ALJ primarily
AR at 1039-1042.
The Commissioner argues that the ALJ's conclusion that Mr. Romero became disabled on June 20, 2016, was reasonable, and that a medical advisor was not required under SSR 83-20. [See Doc. 18, p. 6]. In support of her argument, the Commissioner relies on the Tenth Circuit's reasoning in Bigpond, where there were contemporaneous medical records documenting the severity of the claimant's condition both before and after her date last insured. [See Doc. 18, p. 6]; Bigpond, 280 F. App'x at 718-719. The Court is not convinced.
Dr. Padilla described his impressions of Mr. Romero's then-present complaints and diagnoses in relevant part:
AR at 1471. In sum, Dr. Padilla's opinion as of June 20, 2016, was that Mr. Romero's mental health prognosis was poor, despite the mental health treatment he was receiving and the support of his family.
As Mr. Romero argues, the ALJ's reasons for relying on Dr. Padilla's evaluation date
render him disabled. [Doc. 16, pp. 19-20]. This is especially true where, as here, there is evidence of the same impairments that Dr. Padilla diagnosed predating his evaluation in the record. See, e.g. AR at 269-285 (November 30, 2011, diagnoses of PTSD and Major Depressive Disorder), 641-645, 743-771, 775-795 (June 26, 2013, diagnoses of Mood Disorder NOS and PTSD), 951-974. In fact, there is evidence that Mr. Romero may have been suffering from these same impairments prior to his date last insured, as he presented to the University of New Mexico Hospital Emergency Room complaining of suicidal and homicidal ideation after relapsing on meth on November 4, 2010. See AR at 244. In other words, the Court finds that the evidence concerning Mr. Romero's mental impairments was ambiguous in this case, and that the ALJ erred in arbitrarily choosing the date of Dr. Padilla's examination as Mr. Romero's onset date when it could reasonably have been sooner.
While it is not binding, the Court finds the Fifth Circuit's rationale in Spellman v. Shalala, 1 F.3d 357 (5th Cir. 1993), to be particularly persuasive here, for two reasons. First, the Fifth Circuit applied the same standard that the Tenth articulated in Blea:
Id. at 362-363. Second, the facts of Spellman are analogous to this case. There, as here, "[i]n determining the onset date of Spellman's disability, the Appeals Council found that the first evidence of a significant mental impairment was in April 1986, when Spellman had her first consultative mental status evaluation." Id. at 361. The Appeals Council then arbitrarily tacked on six months prior to the April examination and set the claimant's onset date. Id. The court found this to be in error, reasoning that "[t]he medical evidence with regard to the onset date of Spellman's disability is ambiguous, because it is unclear when Spellman's mental impairment first restricted her functional capacity." Id. at 363. The court accordingly concluded that the Appeals Council's determination of the claimant's onset date was not based on a "legitimate medical basis" and, therefore, that "the Appeals Council could not have inferred an onset date based on an informed judgment of the facts without consulting a medical advisor." So too here.
Here, as in Spellman, the Administration based Mr. Romero's onset date on the date of his first consultative examination — June 20, 2016. However, there is evidence that Mr. Romero has been treated for his depression and PTSD since at least November, 2011. Moreover there is evidence that Mr. Romero's impairments may have been disabling since November, 2010, which is before his date last insured. In these circumstances, the Court cannot agree with the Administration that Mr. Romero's onset date was not ambiguous. That being the case, the ALJ was required to consult a medical advisor under the provisions of SSR 83-20.
In cases where the medical evidence is ambiguous, the Commissioner must infer a disability onset date based upon an informed judgment. Under SSR 83-20 and Blea, an ALJ must call on the services of a medical advisor in order to fulfil this obligation. The ALJ ignored this requirement in this case. As such, the Court has not choice but to remand Mr. Romero's claim again for further administrative proceedings.
Wherefore, IT IS THEREFORE ORDERED that Andrew T. Romero's Motion to Reverse and Remand for a Rehearing with Supporting Memorandum [Doc. 16] is
