Blea v. Barnhart, 05-2246.

• Decision Date: 23 October 2006
• Docket Number: No. 05-2246.,05-2246.
• Parties: Nick L. BLEA, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of the Social Security Administration, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

466 F.3d 903

Nick L. BLEA, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of the Social Security Administration, Defendant-Appellee.

No. 05-2246.

United States Court of Appeals, Tenth Circuit.

October 23, 2006.

Michael D. Armstrong, Albuquerque, NM, for Plaintiff-Appellant.

Linda H. Green, Assistant Regional Counsel, United States Social Security Administration, Dallas, TX (David C. Iglesias, United States Attorney, Cynthia L. Weisman, Assistant United States Attorney, and Tina M. Waddell, Chief Counsel, Region VI with her on the brief) for Defendant-Appellee.

Before HENRY, LUCERO, and McCONNELL, Circuit Judges.

HENRY, Circuit Judge.

Claimant Nick L. Blea appeals from a magistrate judge's order affirming the Commissioner's denial of his application for disability insurance benefits under Title II of the Social Security Act. Mr. Blea contends that the magistrate judge erred in upholding the administrative law judge (ALJ)'s decision, where the ALJ failed to: (1) utilize Social Security Ruling (SSR) 83-20 to determine the onset date of Mr. Blea's disabilities, and (2) confront or address lay witness testimony pursuant to Social Security Rulings 83-20 and 85-16. We hold the onset date of Mr. Blea's disabilities was ambiguous, that the ALJ erred by failing to utilize SSR 83-20 to infer an onset date, and that the ALJ should have addressed lay witness testimony in his written decision. Therefore, exercising jurisdiction pursuant to 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we reverse and remand for further proceedings consistent with this opinion.

I. BACKGROUND

In July 1997, Mr. Blea's brother shot him in the foot. Mr. Blea endured a series of seven surgeries over the next two months, and numerous visits with doctors thereafter. In January 1998, Mr. Blea's treating physician, Dr. William L. Ritchie, M.D., provided him with a handicapped parking placard, and wrote in his treatment notes that Mr. Blea's "pain is probable [sic] due to the bony deformities, although there is the possibility that it is due to incomplete fusion of the bone graft." Aplt's App. vol. I, at 161. Dr. Ritchie also noted that despite the pain, Mr. Blea was "able to ambulate with minimal restrictions." Id.

In February, Dr. Ritchie again saw Mr. Blea, who "return[ed] complaining of continued foot pain." Id. at 159. Dr. Ritchie prescribed ibuprofen and Darvocet-N, advised Mr. Blea to use a cane, and referred him to Dr. Laura A. Mitchell, M.D., a foot and ankle specialist. After examining him in March, Dr. Mitchell noted that his x-rays revealed a "lateral shift of the lesser metatarsals and some shortening of the first ray." Id. at 157. She further explained that Mr. Blea was "doing well and is not interested in further surgery." Id. at 156. Mr. Blea did not see another physician until June 1998, when he tripped while carrying his child. That doctor diagnosed Mr. Blea with a broken toe, and noted that "[h]e has no pain proximally where he had the previous bone graft." Id. at 154. Although the doctor he saw at this time recommended that Mr. Blea make an appointment to follow up with Dr. Ritchie in a few weeks, Mr. Blea did not seek medical treatment again until January 2000.

At the January 2000 visit, Dr. Ritchie noted that the wounds from surgery and the injury itself were "well healed." Id. at 153. The x-rays showed "some degenerative changes" in Mr. Blea's foot; however, "no acute changes [were] noted." Id. He recommended that Mr. Blea see Dr. Mitchell again. But, at his February 2000 visit, Dr. Mitchell diagnosed Mr. Blea with "significant post-traumatic arthritis with constant pain." Id. at 150. She discussed the possibility of a Syme's amputation—an amputation of the entire foot at the ankle —with Mr. Blea at this visit. Further, in February 2002, Mr. Blea saw Dr. Robert C. Schenck, M.D., who indicated that Mr. Blea's x-rays "reveal[ed] fairly significant midfoot and forefoot arthritis." Id. at 197. Dr. Schenck also recommended that Mr. Blea apply for social security benefits: "in my opinion, he is permanently fully disabled and unemployable." Id. at 198.

Mr. Blea followed Dr. Schenck's advice. In March 2002, he applied for disability insurance benefits under Title II of the Social Security Act and supplemental social security income under Title XVI, alleging he was disabled due to post-traumatic arthritis and depression as of June 1997. While his claim for benefits was pending, Mr. Blea met with Dr. Elegio R. Padilla, Ph.D., on August 28, 2002, one of the Social Security Administration's consultative psychologists. This was the first time Mr. Blea received any medical treatment for his depression. During the evaluation, Mr. Blea revealed his past suicidal thoughts, described his problems with alcohol, and discussed the emotional ramifications of having been shot by his own brother. Dr. Padilla concluded that Mr. Blea "has been dysthymic for years and may be suffering from a major depression currently." Id. at 246.

The Commissioner initially denied Mr. Blea's claims for disability insurance and supplemental income. Upon reconsideration in October 2002, however, Mr. Blea was found to be disabled and entitled to supplemental security income as of March 1, 2002. "The decision was made on the basis that at the time the application was protectively filed, March 9, 2002, the claimant's post traumatic arthritis and dysthymia were medically determinable impairments that were disabling." Id. at 18. Thus, the Commissioner determined that, as of at least March 1, 2002, Mr. Blea was disabled due to both post-traumatic arthritis and dysthymia. Nonetheless, the Commissioner denied Mr. Blea's application for disability insurance because she determined that any impairments Mr. Blea had were "not disabling on any date through 12/31/98 the last day insured status for disability was met." Id. at 42.

After the denial of his claim for disability insurance benefits, Mr. Blea requested a hearing before an ALJ, which was held in September 2003. During the hearing, Mr. Blea testified about the effects of having been shot in the foot. Mrs. Blea also testified. She reported that after the gunshot injury and for months thereafter, her husband talked about suicide. Even recently, she testified, "he talks about it probably at least two to three times a week ... he says that the pain is too much to bear." Id. at 333. She also explained that since the gunshot injury, Mr. Blea has rarely left the house due to pain and anxiety, and has also been unable to sleep comfortably. At the close of the evidence, Mr. Blea's attorney asked that the ALJ call a medical expert to assist the ALJ in reviewing the medical evidence. The ALJ denied this request because he found "no medical—or no psychiatric evidence relating to [the time before Dec. 31, 1998] which [he] feel[s] warrants that review." Id. at 342.

In November 2003, the ALJ denied Mr. Blea's claim for disability insurance benefits because he decided that Mr. Blea had not been disabled as of the date he last was eligible for disability benefits, December 31, 1998. The ALJ did not, however, determine an exact onset date. Rather, the ALJ applied the five-part sequential analysis mandated by 20 C.F.R. §§ 404.1520 and 416.920, and determined that because Mr. Blea retained the capacity for sedentary work as of December 31, 1998, he could not have been disabled.

With respect to Mr. Blea's depression, the ALJ found that Mr. Blea's allegations about his physical limitations due to the condition were not well supported by the medical record. Additionally, his reports of depression were not credible before December 31, 1998 since there was no evidence of treatment or reports of depression before that date. Thus, the ALJ did not consider Mr. Blea's claim of depression in determining what kind of residual capacity for work Mr. Blea retained.

With respect to his post-traumatic arthritis, the ALJ applied the five-step sequential analysis pursuant to 20 C.F.R. §§ 404.1520 and 416.920 to determine whether Mr. Blea was disabled as of that date. Mr. Blea carried the burden of proof with respect to the first four parts of the test.

The first part inquires whether the claimant has performed substantial gainful activity since the alleged onset date; if he has, he is not disabled. The ALJ found that Mr. Blea had not performed substantial gainful activity since the gunshot wound. The second part asks whether the claimant's impairments are severe, which they must be if he is to be found disabled. The ALJ found that Mr. Blea's impairment due to post-traumatic arthritis was severe.

If the claimant has not performed gainful activity and his impairments are severe, then the ALJ must determine whether his impairments are listed in the Regulations. If the impairments are listed, then the ALJ must find the claimant disabled without further inquiry. At this step, the ALJ determined that "[t]he claimant's musculoskeletal impairments did not approach the severity required to meet listings, § 1.00 prior to December 1998. Mr. Blea retained the ability to ambulate effectively...." Aplt's App. at 21. Thus, the ALJ proceeded to the fourth step of the inquiry, whether the impairments prevent Mr. Blea from performing his past relevant work. The ALJ found that after the gunshot injury, Mr. Blea could no longer perform his relevant past work, even before December 31, 1998.

Once the claimant has carried his burden through the first four parts, the burden shifts to the Commissioner for the fifth and final part, to show that other work, which the claimant could perform given his residual functional capacity, existed in significant numbers in the national economy such that the claimant could have been employed. If the Commissioner can make this showing, then the ALJ must find that the claimant is not disabled. The ALJ found that as of December 31, 1998 Mr. Blea retained the ability to do sedentary work, relying heavily on the testimony of an...