Jerome Kidd v. Commissioner Social Security

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-1068
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JEROME C. KIDD,
Appellant
v.
COMMISSIONER SOCIAL SECURITY
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-18-cv-05626)
District Judge: Honorable Freda L. Wolfson
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Submitted Under Third Circuit LAR 34.1(a)
September 19, 2019
Before: KRAUSE, MATEY, Circuit Judges,
and QUIÑONES ALEJANDRO, ∗ District Judge.
(Filed: October 4, 2019)
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OPINION †
_______________
∗
Honorable Nitza I. Quiñones Alejandro, District Judge, United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
†
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
MATEY, Circuit Judge.
Jerome Kidd appeals the District Court’s opinion affirming the Social Security
Administration’s denial of disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. §§ 401–434. We conclude the administrative decision lacked
substantial evidence and required the guidance of a medical advisor. So we vacate and
remand.
I. BACKGROUND
Kidd suffers from major depressive disorder and bipolar II disorder. As his
symptoms progressed, Kidd was hospitalized while experiencing suicidal ideation in
2003 and 2007. A few years later, he spent two weeks in an inpatient program and earned
a prognosis of “[f]air with compliance.” (A.R. 409–10.) But his condition worsened,
leading him to an emergency room in February 2014, where he was treated again for
depression and suicidal ideation. As a result, Kidd began receiving intensive outpatient
treatment. Around that time, Dr. Sarala C. Mundassery evaluated Kidd and determined
that he was disabled and would be unable to work for at least one year. Kidd continues to
receive intensive outpatient treatment. While he can perform simple tasks, he has trouble
with his “attention span” and cannot “stay occupied on the very same thing for very
long.” (A.R. 66.)
Kidd applied pro se for disability insurance benefits in March 2014, asserting that
his “disability began on February 27, 2014,” following Dr. Mundassery’s evaluation.
(A.R. 256.) Kidd’s initial claim was denied, and he requested a hearing before an
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Administrative Law Judge (“ALJ”). With the benefit of counsel, Kidd amended his
petition to allege that his disability began much earlier—on January 1, 2009—the date he
was last engaged in substantial gainful work. After reviewing Kidd’s medical records and
hearing testimony from both Kidd and a vocational expert, the ALJ found that Kidd “was
not disabled prior to February 27, 2014, but became disabled on that date and has
continued to be disabled through the date of this decision.” (A.R. 28.)
Kidd sought judicial review under 42 U.S.C. § 405(g), asserting that the February
2014 onset date was unsupported by the record and that his onset date should instead be
January 1, 2009. He also argued that the ALJ needed to retain a medical advisor. The
District Court disagreed with the need for a medical advisor and found Kidd’s proposed
onset date “contrary to the medical record.” Kidd v. Berryhill, No. 18-5626 (FLW), 2018
WL 5874100, at *12 (D.N.J. Nov. 9, 2018). Kidd timely appealed.
II. THE COMMISSIONER’S DECISION LACKS SUBSTANTIAL EVIDENCE, AND THE
RECORD WARRANTED A MEDICAL ADVISOR
We have jurisdiction to review final decisions of district courts under 28 U.S.C.
§ 1291, and under 42 U.S.C. § 405(g), which provides district courts with jurisdiction to
review final determinations of the Social Security Commissioner. The scope of our
review is limited. Like the District Court, we review social security decisions only to
ensure that the proper legal standards were applied and that the record provides
substantial evidence to support the Commissioner’s decision. 42 U.S.C. § 405(g);
Rutherford v. Barnhart, 399 F.3d 546, 552–55 (3d Cir. 2005). To meet this latter
standard, the Commissioner must show that the ALJ’s decision was supported by “such
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relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citation omitted).
A. Kidd’s Disability Date Depends on Ambiguous Testimony
Kidd first argues that the ALJ’s finding that his disability began on February 27,
2014, is unsupported by substantial evidence. In particular, he notes that the only
difference between the ALJ’s findings on his capacity before and after February 27,
2014, is that after that date he had been “expected to be off task or need to be redirected
at least 15% of the day over and above normal work breaks or absent 2 or more days per
month.” (Appellant’s Br. 15 (quoting A.R. 25).) We agree that the ALJ’s determination is
unsupported by substantial evidence.
First, the ALJ placed great weight on Kidd’s hearing testimony that he could not
find work while homeless, concluding that his lack of housing, not his disability, caused
his unemployment. But Kidd explained that he “was too unstable then to work.”
(A.R. 60). That ambiguity cannot be resolved against Kidd because it is insufficient for
“a reasonable mind [to] accept as adequate to support a conclusion.” Biestek, 139 S. Ct. at
1154 (citation omitted). Second, the ALJ relied on Dr. Mundassery’s opinion that Kidd
had a disability as of February 27, 2014. Even so, this opinion offers no conclusion on
Kidd’s disability before that date and does not help decide whether the onset date was
earlier than February 27, 2014.
Finally, the ALJ misconstrues Kidd’s hearing testimony. When questioned
whether Kidd’s difficulties had “been a problem [his] whole life, or [are they] a more
recent problem,” Kidd responded that his deficiencies in attention and concentration were
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“recent problem[s].” (A.R. 66.) Yet his answer could easily suggest that the severity and
frequency increased over time. So while Kidd’s answer might show he has not suffered
from a disability his entire life, it offers little more. Taken together, this evidence, even
viewed in the aggregate, is insufficient for “a reasonable mind [to] accept as adequate to
support [the] conclusion” that Kidd’s disability began only on February 27, 2014.
Biestek, 139 S. Ct. at 1154 (citation omitted).
B. A Medical Advisor is Needed to Clarify the Record
Kidd also argues that the lack of medical records between 2009 and 2014 required
the ALJ to call a medical advisor to opine on the probable onset date of his illness. Under
Social Security Ruling (“SSR”) 83–20, an ALJ must “call on the services of a medical
advisor” where a claimant alleges a “slowly progressive impairment[]” and it is
“necessary to infer the onset date.” 1 Walton v. Halter, 243 F.3d 703, 708–09 (3d Cir.
2001) (quoting SSR 83–20). That is because “[w]ith slowly progressive impairments, it is
sometimes impossible to obtain medical evidence establishing the precise date an
impairment became disabling” and so “the [ALJ] should call on the services of a medical
advisor when onset must be inferred.” SSR 83–20, 1983 WL 31249, at *2–3 (1983).
Mental illness may be a “slowly progressive impairment” and Kidd battled with
1
SSR 18–01p replaced SSR 83–20 in October 2018. 83 Fed. Reg. 49613-01 (Oct.
2, 2018). The new regulation “clarifies that an [ALJ] may, but is not required to, call
upon the services of a medical expert (ME), to assist with inferring the date that the
claimant first met the statutory definition of disability.” Id. It provides specifically that
“[t]he decision to call on the services of an ME is always at the ALJ’s discretion.” Id. at
49616. But we do not apply this new ruling retroactively to Kidd’s hearing. Id.
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severe depression for many years while his life slowly declined. (A.R. 50–66.) A medical
advisor could also help clarify the ambiguous onset date. Newell v. Comm’r of Soc. Sec.,
347 F.3d 541, 549 (3d Cir. 2003). For that reason, the ALJ should have engaged a
medical advisor to determine the onset date of Kidd’s illness.
The ALJ’s determination that Kidd’s onset date began only on February 27, 2014,
is unsupported by substantial evidence, and the ALJ should have engaged a medical
advisor to establish the onset date of Kidd’s disability. We therefore vacate the District
Court’s decision and remand for proceedings consistent with this opinion.
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