Hogarth v. Comm’r of Soc. Sec. (M.D. Fla. Aug. 16, 2017) (Magistrate Judge Amanda Arnold Sansone)

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Included: Parties’ Joint Memorandum, Plaintiff’s Reply Brief, Report and Recommendation, and Order

Issues Briefed:

  1. 1)  Whether the ALJ’s finding that Mr. Hogarth did not have any medically determinable impairment prior to his date last insured of December 31, 2008 is supported by substantial evidence.

  2. 2)  Whether the ALJ committed reversible error in failing to comply with Social Security Ruling 83-20 in not calling a medical expert regarding onset.

  3. 3)  Whether the ALJ committed reversible error in failing to reference the lay evidence of onset as required by SSR 83-20.

In Hogarth, the claimant was last insured for benefits on December 31, 2008. Id. at 2. The ALJ determined that he was disabled as of March 24, 2011, but was not disabled prior to that date as “there were no medical signs of laboratory findings to substantiate the existence of a medically determinable impairment prior to December 31, 2008.” Id. at 5. In support of the ALJ’s finding that the claimant did not suffer from a medically determinable impairment prior to his date last insured, the ALJ cited the fact that:

there is no medical treatment evidence to establish the existence of an impairment before 2010, or evidence that the claimant believed he needed to seek medical evidence before 2010. Based on this alleged lack of medical evidence, the ALJ concluded that Plaintiff did not suffer an impairment prior to his date last insured.

Although the instant record lacks specific medical records for the period prior to Plaintiff’s date last insured, this is not necessarily fatal to Plaintiff’s claim. Indeed, Social Security Ruling (“SSR”) 83-20 states, “[i]n some cases, it may be possible, based on the medical evidence to reasonably infer that the onset of a disabling impairment(s) occurred sometime prior to the date of the first recorded medical examination, e.g., the date the claimant stopped working.” SSR 83-20; see Nixon v. Astrue, No. 1:11-cv-2032, 2012 WL 5507310 at *6 (N.D. Ga. Nov. 14, 2012) (holding that the “mere lack of contemporaneous treatment alone is not conclusive” in determining the onset date); Lavender v. Comm’r of Soc. Sec., No. 2:09-cv0383-FtM-DNF, 2010 WL 3860739 (M.D. Fla. Sept. 30, 2010) (SSR 83-20 “applies to the situation where there [are] no sufficient medical records to determine an onset date based upon the progression of an impairment.”).

Id. at 6-7.

While the claimant did not seek medical treatment until September 20, 2010, the record “certainly references to a history of medical ailments suffered by Plaintiff, including both physical and psychological conditions.” Id. at 7. The court cited the record in some detail, specifically commenting that the consultative examiner “examined Plaintiff and noted a history of several motor vehicle accidents, head injuries, left homonymous diplopia, and depression” and “Plaintiff suffered from mild spasticity of the trapezius, tenderness of the sacroiliacs, muscle spasm in the thoracolumbar fascia and quadratus lumborum, 10% deficit in thoracic and lumbar spine, and positive Lasege’s bilaterally;” “his orientation was off, cognition poor, comprehension fair, mood depressed, and his affect was flat” and his “fine manipulation was abnormal on the right, and his gait was antalgic with a limp on the right. Id. at 8-9. He also had decreased strength in the right hip, right hand, and right forearm. Id. at 9.

“Based upon a thorough review of the record,” the court concluded that:

there is evidence that Plaintiff suffers from slowly progressive physical impairments as well as a history of mental impairments. For this reason, it is possible that these impairments began to develop before the onset date considered by the ALJ. Importantly, the reasoning given by the ALJ for the chosen onset date is also flawed, i.e., the ALJ incorrectly relied on the alleged lack of medical records supporting an impairment before March 24, 2011. See Nixon, 2012 WL 5507310 at *6, Lavender, 2010 WL 3860739.

Id. at 8-9. Thus, the court remanded for further consideration of the claimant’s disability onset date. Id. at 9.

The court further held that “[g]iven the ALJ’s finding that Plaintiff is disabled and suffers from slowly progressing impairments,” the court concluded that the “ALJ failed to comply with SSR 83-20 in not calling a medical advisor regarding the onset date of his disability. Id. at 11 (citing Volley v. Astrue, No. CIV.A. 1:07-CV-0138A, 2008 WL 822192, at *13, 16 (N.D. Ga. Mar. 24, 2008); Lavender, 2010 WL 3860739, at *6) . Finally, the court noted that the ALJ did not mention the lay testimony of the claimant’s sister, a registered nurse, and directed that the the ALJ consider this lay evidence upon remand. Id. at 13.