ROBERT J. PALETTA, Plaintiff,
CAROLYN W. COLVIN,  Acting Commissioner of Social Security, Defendant.
RICHARD P. CONABOY, District Judge.
Here we consider Plaintiff's appeal from the Commissioner's partial denial of Disability Insurance Benefits under Title II of the Social Security Act ("Act"). (Doc. 1.) The Administrative Law Judge ("ALJ") who evaluated the claim found that Plaintiff was disabled as of December 31, 2008, his last date insured, rather than as of the alleged onset date of August 1, 2007. (R. 25-26.) Plaintiff claims this is error, and the Court should reverse the decision and award benefits accordingly. (Doc. 1.) For the reasons discussed below, we conclude Plaintiff's claimed error is without merit and, therefore, we deny his appeal of the Commissioner's decision.
On January 6, 2009, Plaintiff filed applications for Title II Disability Insurance benefits ("DIB") and Title XVI Supplemental Security Income ("SSI"). (Doc. 6 at 1.) Plaintiff, whose date of birth is December 18, 1954, first asserted that he became unable to work on December 1, 2003, (R. 159) and later amended the onset date to August 1, 2007. (R. 138.) For DIB purposes, Plaintiff remained insured through December 31, 2008. (R. 18.) He listed the illnesses, injuries, or conditions that limited his ability to work as "herniated discs in lower back." (R. 184.)
Plaintiff's SSI application was approved at the initial level with an onset date of January 6, 2009-the date of the application. (Doc. 6 at 2.) The disability insurance application was denied at the initial level and was referred to an ALJ for a hearing following Plaintiff's appeal of the initial decision. ( Id. )
The hearing was held on July 20, 2010. (R. 35.) The issue at the hearing was the onset date of disability for purposes of Disability Insurance Benefits with Plaintiff claiming an onset date of August 1, 2007. (R. 37-42.) Plaintiff and his counsel agreed there were no treatment records for the years 2007 and 2008. (R. 46, 48-49.) The reason given was Plaintiff's lack of medical coverage. ( Id. ) Plaintiff testified that he managed the pain with Advil and cold packs. (R. 49.) He used a cane to help him get around and did exercises recommended by his brother-in-law who is a physical therapist. (R. 50.) Plaintiff further testified that, during the relevant time period, he drove a car locally, he did not do any strenuous work, he was able to dress and take care of himself, and he did simple household chores. (R. 51-54.) When Plaintiff's attorney asked him if his symptoms were as bad in 2007 and 2008 as they were in 2009, Plaintiff responded that "[i]t wasn't as bad, but it was, it was bad." (R. 55-56.) Plaintiff explained that he was extremely stiff when he got up in the morning and had pain radiating down his right leg in 2007 and 2008. (R. 56.)
A discussion occurred toward the end of the hearing between the ALJ and Plaintiff's counsel regarding appointment of a medical advisor for determination of the disability onset date. (R. 63-66.) Plaintiff's counsel requested the ALJ to use a medical expert to determine the onset date. (R. 66.) The ALJ ultimately appointed Dr. John Menio pursuant to SSR 82-30. (Doc. 6 at 3; R. 25.)
On September 17, 2010, the ALJ issued a partially favorable decision. (R. 18-27.) The ALJ found that "[b]eginning on December 31, 2008, the severity of the claimant's impairments has medically equaled the criteria of section 1.04 of 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526)." (R. 25.) In support of this conclusion, the ALJ provided the following analysis:
The claimant has a number of medical problems, including, lumbar back pain, herniated discs of lumbar spine and spinal stenosis with radiculopathy. These impairments are severe insofar as they have caused nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss or atrophy with associated muscle weakness accompanied by sensory or reflex loss and positive straight leg raising tests results.
In reaching this conclusion, the undersigned finds that beginning on December 31, 2008, the claimant's allegations regarding his symptoms and limitations are generally credible.
On July 30, 2010 Dr. John Menio, M.D. in response to a Medical Interrogatory gave his opinion that claimant equals the listing 1.04A with a herniated disc of the lumbar spine and spinal stenosis with radiculopathy. He further opines that the earliest date claimant equaled this listing was "prior to 1/7/09" as per "Dr. Kumar's note of 1/12/10 initial evaluation of pain in his lower back for past 14 years" (Exhibit 9F).
In follow up questions to the Medical Interrogatories in August of 2010 Dr. Menio opined that he does not reasonably believe the listing equivalence would have existed for the past 14 years due to there not being any medical evidence to support this period. However, he did opine that claimant's impairment equivalency would "likely have existed prior to August 1, 2007", but he failed to indicate what evidence he was relying on to substantiate this opinion (Exhibit 10F).
The opinion that claimant equals a listing "prior to 1/7/09" is given significant weight. The undersigned is willing [to] set the established onset date to December 31, 2008 so as claimant can be disabled under Title II on the date he was last insured due specifically to the opinion of Dr. Menio that claimant equaled the listing prior to January 7, 2009 and was "likely" to equal the listing back to August 1, 2007. While there [is] no medical evidence to support an established onset all the way back to August 2007, the undersigned does find there to be a reasonable and sufficient support to set the established onset on December 31, 2008, which is only seven days prior to January 7, 2009. Clearly if claimant's back equaled a listing as of January 7, 2009 then it is not entirely unreasonable, nor unfounded to presume that just seven days prior, on December 31, 2008 his back would likely have been in the same physical condition and thus equaling the listing as of seven days prior. In addition, claimant's treating physician Dr. Van Der Sluis opined in accordance with the undersigned's finding. He opined claimant was completely and permanently disabled as of December 31, 2008 from any work (Exhibit 6F).
As to the basis for reaching further back in time, in the absence of any clear evidence of some treatment, x-rays, MRIs, clinical visits or some indication of medical attention for the low back problem that would sustain a finding of a severe, medically determinable impairment, there is no evidentiary foundation upon which [to] lay a logical bridge to a 2007 onset of disability from the evidence present in this record. Simply put, while the treating physician opined that the claimant's listing level severity existed as of December 31, 2008, and subsequently a reviewing medical consultant initially opined that the condition was present at that severity prior to January 7, 2009, the subsequent extension of this opinion by the reviewing, non-treating physician to a timeframe in 2007 upon follow-up inquiry by the claimant's counsel, does not rest on any supportable medical information in the record, ...