                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-20-2001

Walton v. Apfel
Precedential or Non-Precedential:

Docket 00-1289




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Filed March 20, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 00-1289

GEOFFREY WALTON
Appellant

v.

WILLIAM A. HALTER,* Acting Commissioner of Social
Security

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil Action No. 98-cv-01251)
District Judge: Honorable Lowell A. Reed, Jr .

Argued November 9, 2000

BEFORE: ROTH, McKEE and STAPLETON, Cir cuit Judges

(Opinion Filed March 20, 2001)

Kenneth M. Kapner
1333 Race Street, Suite 205
Philadelphia, PA 19107
 and
Thomas D. Sutton (Argued)
Leventhal & Sutton
One Oxford Valley, Suite 317
Langhorne, PA 19047
 Attorneys for Appellant



_________________________________________________________________
* Substituted pursuant to F.R.A.P. 43(c).
       Allyson Jozwik (Argued)
       David Wiedner
       Social Security Administration
       SSA/OGC/Region III
       300 Spring Garden Street, 6th Floor
       Philadelphia, PA 19123
        and
       Lori Karimoto
       Social Security Administration
       OGC/Region III
       P.O. Box 41777
       Philadelphia, PA 19101
        Attorneys for Appellee

OPINION OF THE COURT

STAPLETON, Circuit Judge:

I.

On August 14, 1992, Geoffrey Walton filed an application
for child's disability insurance benefits under the Social
Security Act based on his deceased father's employment
record. Walton alleged an onset date of disability of June
13, 1966, the day before his twenty-second birthday.
Appellee Kenneth Apfel, Commissioner of Social Security
("the Commissioner"), denied the application. Walton then
filed the present action in the District Court which granted
the Commissioner's motion for summary judgment. W alton
appeals.

II.

Section 405(g) of Title 42 of the United States Code
authorizes appeals from final decisions r endered by the
Commissioner "within sixty days after the mailing to [the
applicant] of notice of such decision or within such further
time as the Commissioner of Social Security may allow."
Shortly before oral argument the Commissioner moved to
dismiss this appeal on the ground that W alton's resort to
the District Court was untimely, and it, ther efore, lacked

                               2
jurisdiction. "[T]he 60-day requir ement is not jurisdictional,
[however, and] constitutes [only] a period of limitations."
Bowen v. City of New York, 476 U.S. 467, 478 (1986).
Defenses based on limitations can be waived. Because the
Commissioner failed to brief this issue on appeal, the issue
is waived. See id.

III.

A.

Walton claims that he is entitled to benefits based on his
mental illness, bipolar disorder--manic depr ession. In order
to receive benefits, Walton must show, among other things,
that he has a disability which began prior to his twenty-
second birthday. See 20 C.F.R. S 404.350. A "disability" is
"the inability to do 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." 20 C.F.R.
S 404.1505(a). To meet this definition, claimants "must
have a severe impairment, which makes[them] unable to
do [their] previous work or any other substantial gainful
activity which exists in the national economy." Id.

Walton, who is presently disabled and r eceiving
Supplemental Security Income Disability Benefits, has a
long history of suicide attempts, hospitalization, and
treatments by a series of psychiatrists. He wasfirst
diagnosed as having bipolar-manic depr ession in 1971
when he was twenty-six years of age, and the
contemporaneous medical records fr om the period after
that date are extensive. While the contemporary medical
records from the preceding period are considerably more
limited, they do bear evidence that Walton's mental
impairment originated prior to 1971. The ALJ was thus
confronted in 1994 with the difficult task of determining
whether Walton's progressive mental impairment rose to
the level of a disability prior to his twenty-second birthday
on June 13, 1966.

                               3
Walton testified that he attended T rinity College in
Connecticut from 1962 until June of 1964, when he was
asked to leave and withdrew. He retur ned to Trinity in
1965, but again found himself on academic pr obation in
February, 1966, when he again withdrew. After dropping
out the first time, Walton saw a psychiatrist, Dr. Howard
Wood, weekly. Walton had his first manic experience in the
summer of 1965 and saw a psychiatrist once a week for six
months during that year. His first suicide attempt came in
1967, and he saw Dr. Wood again that year for
approximately six months.

By 1994, Dr. Wood was no longer in practice and had not
retained records relating to his observations of Walton. The
only contemporaneous written record available from the
early sixties is a letter from Dr. Charles C. Schober, whom
Walton consulted in 1964 for "emotional pr oblems." Dr.
Schober wrote to Walton's draft boar d on August 14, 1964,
in support of an application for a deferment. He there
reported that Walton "has periods of apathy and depression
coupled with a tendency to rebel seriously which inhibits
his performance and productivity." Record 162. In Dr.
Schober's opinion, these problems would "hamper his
performance in the military service." Id.

B.

At the hearing, the ALJ listened to Walton's account of
the progression of his illness and solicited the reaction to
that account of Dr. Morris Rubin, a psychologist and
vocational expert.1 The ALJ r ecognized that some mental
disorders, including the sort from which W alton suffers,
take time to recognize and diagnose. He also noted that,
while it seemed clear that Walton suf fered from a mental
impairment rising to the level of disability at some point in
his life, the timing of the disability's onset was uncertain:
_________________________________________________________________

1. In his resume, Dr. Rubin describes his current occupation as
"Counseling/Consulting-Psychologist." He has earned a B.S. in
psychology, an M.S. in Psychology Guidance, and an Ed.D. in Psychology
Guidance. He has worked as a certified school psychologist and as a
vocational advisor.

                               4
       ALJ: The picture . . . Dr. Rubin, after '71 gets clear, I
       think.

       [Dr. Morris Rubin]: Yes, much clearer.

       ALJ: Because there's a hospitalization which is used.
       All with clear information. And then six
       hospitalizations follow. And the period befor e that--of
       course, a lot of this is just a problem of documentation
       that occurs [due] to passage of time plus as you
       mentioned to Dr. Rubin, I believe, or Mr . Walton did is
       that there's a sort of reluctance of diagnoses in this type
       of thing until after a period of time has passed.

       * * *

       ALJ: So this is not an unusual pattern we'r e seeing
       here.

       Dr. Rubin: Not an unusual pattern.

       ALJ: But it still leaves me with the pr oblem of drawing
       a line at a particular point. It obviously was not before
       age 14.

       * * *

       ALJ: . . . [U]nfortunately, Mr. W alton has had a
       problem since . . . [a]ge 14, which is very significant
       and is very clear in the present and we'r e right at that
       point in time where I have to make a decision as to
       where to draw the line. Age--it's somewher e between
       14 and 23, I would think, or 24, or 25, or [in 1971].
       And it's an unusual case in that the line seems to
       hover very close around that point in time. . .. It's a
       difficult--I think this is a difficult line for me to draw.

Record 80-83 (emphasis added).

The ALJ personally elicited Dr. Rubin's opinion on the
onset issue. Dr. Rubin opined that Walton's 1967 suicide
attempt was an expression of the severity of W alton's
impairment at that time. Dr. Rubin further regarded it as
likely that Walton was unable to work on a continuing basis
after the age of fourteen:

        ALJ: . . . Dr. Rubin, want [sic] to volunteer anything
       here? I think it's a fuzzy, fuzzy period that year or two
       in there.

                                 5
        Dr. Rubin: It's hard to explain, Y our Honor. But if we
       liken it, if I may say, expressed in feeling, if I can liken
       his educational experiences from 14 years of age up,
       certainly if we turn it into some sort of employment, he
       wouldn't be able to hold positions for any length of
       time, but we'd have the mood swings. He would run
       into difficulty. But it's difficult to say whether he would
       be an employable constantly.

       * * *

        . . . [A]s it's shown here, in my opinion, he would
       have a lot of difficulty holdings [sic] jobs for long
       periods of time or reasonable periods of time for the
       satisfaction of an employer. Probably get fired a lot of
       times or even quit. Got in a mood, he would quit.

Record 84-85.

In addition to contemporaneous medical recor ds, Walton
tendered letters authored in the early nineties by doctors
who had treated him at various times in the past: Dr.
Howard Wood; Dr. Henry D. Cornman, III;2 Dr. JohnW.
Goppelt; and Dr. Robert Gibbon. Dr. W ood reported that he
treated Walton when he dropped out of college but did not
remember his diagnosis: "I don't remember exactly what my
diagnosis was, but I don't believe I recognized him as
manic-depressive. He seemed to be a disturbed adolescent.
I have had several patients whose bipolar pictur e only
became evident after a period of years." Recor d 255. Dr.
Cornman reported that during high school Walton "became
withdrawn, isolated and lost interest in everything." Record
254. He also reported that Walton's par ents had provided
his support all of his life and that he, Dr. Cornman, could
"confirm that . . . Walton was disabled before his 22nd
birthday." Id. Dr. Goppelt opined:
_________________________________________________________________

2. The ALJ describes Dr. Cornman"as a neighbor, . . . not a professional
treating source." Record 30. Dr. Cornman reported in 1992, however,
that he had treated Walton for "the past ten years." Record 254. He
simply supplements his ten years of clinical familiarity with Walton's
condition by noting that he had been friendly with W alton and his family
since the 1940s.

                               6
        In my opinion the psychiatric diagnosis in Geof frey's
       case is incomplete unless it includes personality
       disorders, which Geoffrey never mentions. He shows
       elements of the histrionic disorder and the anti-social
       disorder, along with a bipolar disor der which has
       responded poorly to treatment, in part because
       Geoffrey has often not cooperated with his treatment.

Record 257.

In his report, Dr. Gibbon states that"by virtue of his
mental condition, [Walton] has not been sustainably
employable in the open job market" and that "[i]n the first
fifteen years out of high school, he held about half a dozen
jobs, typically for three months." Recor d 271.

C.

In his decision, the ALJ found Dr. Wood's letter
significant only because it reflected, in the ALJ's view, that
Walton had been seen "not for manic depr ession but for
adolescent disturbance." Record 30. The ALJ dismissed Dr.
Cornman as "not a professional tr eating source" and Dr.
Gibbon's report as "clearly based upon infor mation
provided by [Walton] and not upon Dr. Gibbon's own
observation of [Walton] prior to his 22nd birthday." Id. The
ALJ's evaluation of Dr. Goppelt's report was as follows:

       Dr. Goppelt, in his treatment of the claimant, actually
       was apparently convinced that Mr. W alton could more
       readily be defined as subject more to personality and
       anti-social disorder than bipolar disor der. Further, he
       believed that the claimant's emotional condition was
       currently poorly controlled basically because of the
       claimant's own irresponsibility and lack of cooperation.

Record 31. The ALJ's decision makes no r eference to Dr.
Rubin's views on the onset issue.

The ALJ concluded as follows:

       In consideration of the medical documentation as well
       as reports of the claimant's educational achievement
       prior to his 22nd birthday and notwithstanding the
       claimant's allegations or those of his neighbor Dr .

                                7
       Cornman, or Dr. Gibbon, the Administrative Law Judge
       finds that Mr. Walton may have been treated for some
       adolescent disturbance in 1964 or 1965. He was able
       to acquire a draft deferment when he left school. The
       method by which this result was achieved is certainly
       not indicative of either ongoing mental or emotional
       disorganization. There is no contemporaneous further
       record of his receiving treatment for severe emotional
       or mental impairment through June 14, 1966. It is the
       opinion of this administrative law judge that the fact
       that the claimant was not in school at the time he
       achieved his 22nd birthday is not dispositive of any
       ongoing emotional impairment. Noteworthy is the fact
       that student unrest in many forms was pr evalent in
       colleges throughout the nation at that time.

       * * *

       FINDINGS

       * * *

       5. Prior to attaining age 22, the claimant had the
       following medically determinable impair ments:
       adolescent disturbance, which was not severe in
       nature.

       6. The claimant is not under a "disability" as defined in
       the Social Security Act, which began before he attained
       age 22.

App. at 32-33.

IV.

A.

Social Security Rulings "are binding on all components of
the Social Security Administration." 20 C.F .R.
S 402.35(b)(1). Social Security Ruling 83-20 ("SSR 83-20) is
of particular pertinence here:

        With slowly progressive impair ments, it is sometimes
       impossible to obtain medical evidence establishing the
       precise date an impairment became disabling.

                               8
Determining the proper onset date is particularly
difficult, when for example, the alleged onset and the
date last worked are far in the past and adequate
medical records are not available. In such cases, it will
be necessary to infer the onset date from the medical
and other evidence that describe the history and
symptomatology of the disease process.

* * *

 In determining the date of onset of disability, the
date alleged by the individual should be used if it is
consistent with all the evidence available. When the
medical or work evidence is not consistent with the
allegation, additional development may be needed to
reconcile the discrepancy. However , the established
onset date must be fixed based on the facts and can
never be inconsistent with the medical evidence of
record.

* * *

 In some cases, it may be possible, based on the
medical evidence to reasonably infer that the onset of
a disabling impairment(s) occurred some time prior to
the date of the first recorded medical examination. . . .
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 onset must be inferred.

* * *

 If reasonable inferences about the pr ogression of the
impairment cannot be made on the basis of the
evidence in file and additional relevant medical
evidence is not available, it may be necessary to
explore other sources of documentation. Information
may be obtained from family members, friends, and
former employers to ascertain why medical evidence is
not available for the pertinent period and to fur nish
additional evidence regarding the course of the
individual's condition.

                        9
       * * *

        The available medical evidence should be considered
       in view of the nature of the impairment (i.e., what
       medical presumptions can reasonably be made about
       the course of the condition).

SSR 83-20.

This is a case involving a previously hospitalized claimant
alleging disability on the basis of a psychiatric impairment.
That impairment was a slowly progr essive one and the
alleged onset date was far in the past. Adequate medical
records for the most relevant period were not available. This
meant that it was "necessary to infer the onset date from
the medical and other evidence that describe the history
and symptomatology of the disease process." An "informed
judgment" was required, a judgment with a "legitimate
medical basis."

B.

Here, with the arguable exception of Dr . Wood's having no
affirmative recollection of having r ecognized Walton as a
manic depressive prior to his twenty-second birthday, all of
the medical evidence suggested an onset prior to that
birthday.3 To be sur e, that evidence was not based upon
personal observation of Walton prior to age twenty-two.
Nevertheless, the ALJ could not, consistent with SSR 83-20
and the necessity of establishing an onset date based on
substantial evidence, simply ignore that evidence and draw
an inference from the record evidence having no substantial
medical support. Because there is no legitimate medical
_________________________________________________________________

3. We find no support for the ALJ's interpretation of Dr. Goppelt's
letter.
Dr. Goppelt did not opine that W alton was more accurately diagnosed as
having a "personality and anti-social disorder than [a] bipolar disorder."
Record 31. His opinion was that Walton suffered from both bipolar-
manic depression and a personality and antisocial disorder. Similarly,
Dr. Goppelt's letter did not attribute W alton's condition to
"irresponsibility." He did report that Walton's condition has "responded
poorly to treatment, in part because [he] has often not cooperated with
his treatment." Record 257. Dr. Goppelt explained, however, that
Walton's poor cooperation is the result, not the cause, of his illness.
Id.

                               10
basis for the conclusion of the ALJ on the onset issue, we
will reverse the judgment of the District Court and remand
with instructions to return this matter to the Commission
for further proceedings.

Given the record evidence concerning the period of time
frequently necessary to diagnose a bipolar disorder like
Walton's, we conclude that Dr. W ood's letter concerning his
failure to diagnose Walton as a manic depressive prior to
age twenty-two would not alone provide a basis for a post-
twenty-one onset date even if Dr. Wood had a clearer
recollection about Walton's case.

Moreover, SSR 83-20 and the substantial evidence rule
dictate, we conclude, that an ALJ in a situation of this kind
must call upon the services of a medical advisor rather
than rely on his own lay analysis of the evidence. Our
conclusion on this issue is consistent with those r eached
by our sister courts of appeals in similar situations. See
Grebenick v. Chater, 121 F.3d 1193, 1201 (8th Cir. 1997)
"[i]f the medical evidence is ambiguous and a retroactive
inference is necessary, SSR 83-20 requir es the ALJ to call
upon the services of a medical advisor to insur e that the
determination of onset is based upon a `legitimate medical
basis' "); Bailey v. Chater, 68 F .3d 75, 79 (4th Cir. 1995)
(mandating enlistment of a medical expert when onset is
ambiguous despite SSR 83-20's apparently per missive
language); Spellman v. Shalala, 1 F.3d 357, 362 (1993) ("We
therefore hold that in cases involving slowly progressive
impairments, when the medical evidence r egarding the
onset date of a disability is ambiguous and the Secr etary
must infer the onset date, SSR 83-20 requir es that that
inference be based on an informed judgment. The Secretary
cannot make such an inference without the assistance of a
medical advisor."); DeLorme v. Sullivan, 924 F.2d 841, 848
(9th Cir. 1991) ("In the event that the medical evidence is
not definite concerning the onset date and medical
inferences need to be made, SSR 83-20 r equires the
administrative law judge to call upon the services of a
medical advisor and to obtain all evidence which is
available to make the determination."); Blankenship v.
Bowen, 874 F.2d 1116, 1122-24 (6th Cir . 1989); Lichter v.
Bowen, 814 F.2d 430, 434-436 (7th Cir . 1987).

                                11
Ironically, the ALJ in this case appear ed to recognize his
need for expert help and noted during the hearing that he
"might possibly feel the need to secure a[`medical expert']
subsequently." Record 42. Perhaps because of this concern,
the ALJ treated Dr. Rubin at the hearing as both a medical
advisor and a vocational expert. When deciding the case,
however, he chose to ignore Dr. Rubin's views without
comment. Having secured the professional opinion of a
licensed psychologist, we conclude the ALJ was not entitled
to disregard it without articulated r eason. As we have
explained on numerous occasions, we are unable to
conduct our substantial evidence review if the ALJ fails to
identify the evidence he or she rejects and the reason for its
rejection. See Burnett v. Comm'r of Soc. Sec. Admin., 220
F.3d 112,119-20 (3d Cir. 2000); Schaudeck v. Comm'r of
Soc. Sec. Admin., 181 F.3d 429, 433 (3d. Cir. 1999); Barren
Creek Coal Co. v. Witmer, 111 F .3d 352, 356 (3d Cir. 1997);
Cotter v. Harris, 642 F.2d 700, 705 (3d. Cir. 1981).

Finally, we conclude that the ALJ, even if he had had the
assistance of a medical advisor, could not have rejected the
opinion of Dr. Gibbon, a treating physician, solely on the
basis that his opinion was based on information supplied
by Walton and not on personal observation of Walton
during the relevant period. As SSR 83-20 clearly reflects, a
conclusion regarding onset in a situation of this kind can,
and frequently must, be based on information gathered
after the fact from the claimant and, indeed, from other lay
people like family and neighbors. The basis for a medical
opinion is, of course, an indispensable element of a
reasoned evaluation of it, and there ar e, of course,
situations in which an opinion based on personal
observation may be favored over one based on information
supplied by the claimant. But this is a situation in which
an opinion based on personal, contemporaneous
observation was not available. In such a situation, SSR 83-
20 calls for an ALJ to have the benefit of expert medical
advice based on the best available data without r egard to
its source.

                               12
V.

We will reverse the judgment of the District Court and
remand with instructions to return this matter to the
agency for further proceedings consistent with this opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               13
