1

 The June 1993 application is the sole active application identified in the administrative decision, but the

administrative record includes a copy of an earlier application that Bradley submitted in February 1992 that was

apparently lost and never processed. (Tr. 312).

Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

CAROLYN F. BRADLEY, §

PLAINTIFF, §

§

VS. § CIVIL ACTION NO. 4:05-CV-391-Y

§

JO ANNE B. BARNHART, §

COMMISSIONER OF SOCIAL SECURITY, §

DEFENDANT. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

AND NOTICE AND ORDER

This case was referred to the United States Magistrate Judge pursuant to the provisions of

Title 28, United States Code, Section 636(b). The Findings, Conclusions and Recommendation of

the United States Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS

A. STATEMENT OF THE CASE

Plaintiff Carolyn Bradley brings this action pursuant to Section 405(g) of the Social Security

Act, Title 42 of the United States Code, for judicial review of a final decision of the Commissioner

of Social Security denying her claim for disability insurance benefits under Title II of the Social

Security Act. Her claim has a lengthy procedural history. 

Bradley applied for disability benefits on June 18, 1993,1 asserting that her disability began

 

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January 18, 1987. (Tr. 128). Her insured status expired December 31, 1992. (Tr. 131). The Social

Security Administration denied Bradley’s application for benefits both initially and on

reconsideration. 

Bradley requested a hearing before an administrative law judge (the "ALJ"), and ALJ

William Helsper held a hearing on April 24, 1995 in Fort Worth, Texas. (Tr. 68). Bradley was

represented by counsel. ALJ Helsper issued an unfavorable decision in August 1995, but the

Appeals Council vacated that decision and remanded the case to the ALJ for further consideration

of Bradley’s residual functional capacity and evaluation of her subjective complaints. (Tr. 272-73).

ALJ Helsper presided over a second administrative hearing on December 12, 1996, and in

February 1997, issued another unfavorable decision. (Tr. 55). After the Appeals Council denied

Bradley’s request for review of the ALJ’s decision, Bradley sought judicial review. The district

court reversed and remanded the case to the administration for further consideration. See Bradley

v. Barnhart, Civil Action No. 4:01-CV-369-Y (N.D. Tex. Dec. 20, 2001)(Order for Remand).

Specifically, the Commissioner would assign the case to a new ALJ on remand; obtain a consultative

evaluation consisting of testing for an organic brain disorder and a mental capacities assessment; and

use a medical expert to determine the severity of Bradley’s impairments and her functional capacity.

(Tr. 439-40). 

ALJ J. Frederick Gatzke conducted a third administrative hearing in January 2003, assisted

by a medical expert and vocational expert. On February 27, 2003, the ALJ issued another

unfavorable decision. (Tr. 378-89). The Appeals Council declined to assume jurisdiction of the

case, and Bradley again sought judicial review. For a second time, the district court granted the

 

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Commissioner’s unopposed motion to reverse and remand the administrative decision for further

administrative proceedings as indicated in the Commissioner’s motion to remand. See Bradley v.

Barnhart, Civil Action No. 4:01-CV-369-Y (N.D. Tex. June 15, 2004)(Order Granting Motion to

Remand). In her motion, the Commissioner represented that, on remand, the ALJ would resolve the

issue of Bradley’s disability onset date and recontact examining neuropsychologist William Jones,

Ph.D., for clarification of his opinion that Bradley was disabled. (Plf. App. at 19-20). The Appeals

Council entered a concurring order on remand. (Tr. 624-25).

A fourth administrative hearing was held in Fort Worth, Texas on January 2005. (Tr. 730).

Bradley was represented by counsel and testified during the proceedings, as did her husband.

Medical expert John Simonds, M.D., also testified. On February 22, 2005, the ALJ issued a

determination that Bradley was not disabled before December 31, 1992 because she was capable of

performing a modified range of light work activity. (Tr. 611-20). This decision became the final

decision of the Commissioner after the Appeals Council declined to assume jurisdiction of the case

and no written exceptions were filed. 20 C.F.R. § 404.984.

B. STANDARD OF REVIEW

The Social Security Act defines a disability as a medically determinable physical or mental

impairment lasting at least twelve months that prevents the claimant from engaging in substantial

gainful activity. 42 U.S.C. § 423(d)(1)(A); McQueen v. Apfel, 168 F.3d 152, 154 (5th Cir. 1999).

To determine whether a claimant is disabled, and thus entitled to disability benefits, a five-step

analysis is employed. 20 C.F.R. § 404.1520. First, the claimant must not be presently working at

any substantial gainful activity. Substantial gainful activity is defined as work activity involving the

 

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use of significant physical or mental abilities for pay or profit. 20 C.F.R. § 404.1527. Second, the

claimant must have an impairment or combination of impairments that is severe. 20 C.F.R. §

404.1520(c). At the third step, disability will be found if claimant’s impairment or combination of

impairments meets or equals an impairment listed in the appendix to the regulations. Id. §

404.1520(d). Fourth, if disability cannot be found on the basis of claimant’s medical status alone,

the impairment or impairments must prevent the claimant from returning to his past relevant work.

Id. § 404.1520(e). And fifth, the impairment must prevent the claimant from doing any work,

considering the claimant's residual functional capacity, age, education, and past work experience.

Id. § 404.1520(f); Crowley v. Apfel, 197 F.3d 194, 197-98 (5th Cir.1999). 

At steps one through four, the burden of proof rests upon the claimant to show he is disabled.

If the claimant satisfies this responsibility, the burden shifts to the Commissioner at step five of the

process to show that there is other gainful employment the claimant is capable of performing in spite

of his existing impairments. Crowley, 197 F.3d at 198. If the Commissioner meets this burden, the

claimant must then prove that he cannot in fact perform the work suggested. Waters v. Barnhart, 276

F.3d 716, 718 (5th Cir. 2002). A finding at any point in the five-step process that a claimant is

disabled or not disabled is conclusive and terminates the analysis. Masterson v. Barnhart, 309 F.3d

267, 272 (5th Cir. 2002).

A denial of disability benefits is reviewed only to determine whether the Commissioner

applied the correct legal standards and whether the decision is supported by substantial evidence in

the record as a whole. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Hollis v. Bowen, 837

F.2d 1378, 1382 (5th Cir. 1988). Substantial evidence is such relevant evidence as a responsible

 

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mind might accept to support a conclusion. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). It is

more than a mere scintilla, but less than a preponderance. Id. A finding of no substantial evidence

is appropriate only if no credible evidentiary choices or medical findings support the decision. Id.

Conflicts in the evidence are for the Commissioner and not the court to resolve. Masterson, 309

F.3d at 272. The court will not re-weigh the evidence, try the questions de novo, or substitute its

judgment for the Commissioner's, even if the court believes the evidence weighs against the

Commissioner's decision. Id.; Harris v. Apfel, 209 F.3d 413, 417 (5th Cir.2000); Hollis, 837 F.2d

at 1383.

C. ISSUES

Whether the ALJ’s determination is supported by substantial evidence and complies with

relevant legal standards.

D. ADMINISTRATIVE RECORD

1. Medical History

Born November 22, 1940, Bradley was forty-six years old on January 18, 1987, her alleged

onset date. (Tr. 393). Bradley completed high school and has work experience as a customer

complaint/ billing adjustments clerk in the telecommunications industry. (Tr. 138, 454, 618). Her

medical problems began in 1974 when she became pregnant despite using a Dalkon Shield birth

control device. Several months into her pregnancy she was hospitalized for a uterine infection that

resulted in a stillborn fetus and a total hysterectomy. (Tr. 397-98). The infection spread to her

kidneys, liver, thyroid gland, and brain. (Tr. 158, 305). Since 1974, Bradley has been treated for

 

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2

 Encephalopathy refers to any degenerative disease of the brain. DORLAND’S ILLUSTRATED MEDICAL

DICTIONARY 590 (29th ed. 2000).

Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 6

persistent headaches that have been attributed to encephalopathy2 by at least one treating source.

(Tr. 161). She reported making a variety of work-related adjustments to compensate for declining

concentration and memory, but she continued to work until 1987. (Tr. 398-400). 

In 1989, Bradley underwent court-ordered forensic testing associated with litigation she was

pursuing against her former employer. (Tr. 249). Psychologist Kevin Karlson, Ph.D., administered

a battery of tests, which revealed cognitive deficits, including memory, concentration and visual

perception problems. Karlson opined that Bradley suffered from brain damage and intense chronic

headaches as a result of a pelvic infection that spread to her brain and caused diffuse cortical and

sub-cortical damage. Karlson noted that brain-damaged patients could minimize or even conceal

the damage as long as they were not required to change their routine or learn new skills or

information. (Tr. 250). He noted that old areas of learning were generally unaffected by the type

of brain damage that Bradley sustained. (Tr. 250).

Bradley also underwent two comprehensive psychological examinations in 2002. The first

was performed by Gerald H. Stephenson, Ph.D., on August 14, 2002. Bradley complained of daily

intractable headaches and losses in cognitive functioning, including reading comprehension. (Tr.

452). She stated that she was fired after her employer accused her of being addicted to drugs. She

sued her employer and settled her litigation in exchange for retirement benefits. Bradley’s mental

status examination was unremarkable, and she demonstrated an above-average level of intelligence.

 Her short-term memory was fair, and her immediate recall and remote memory were intact. She

 

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3

 In psychiatry, lability refers to emotional instability. Id. at 952.

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was able to perform serial threes and spell “world” backward, although she had mixed results when

asked to perform mental arithmetic. (Tr. 455). Stephenson diagnosed a pain disorder that primarily

involved physiological factors and involved mental states as a secondary factor. (Tr. 458). 

Stephenson completed a medical assessment of Bradley’s work-related mental abilities, and

found few deficits in her ability to make occupational adjustments. Stephenson opined that Bradley

would have less stress tolerance, and her attention and short-term memory could be affected by her

prescription pain medications. (Tr. 459). He opined that Bradley had only fair ability to understand,

remember and carry out complex instructions, but otherwise had good to very good ability to

perform simple or detailed (but less than complex) job instructions. He noted that her age was also

a vocational consideration. (Tr. 460).

Bradley underwent a neuropsychological evaluation with William Jones, Ph.D., over a twoday period in September 2002. (Tr. 569). Bradley complained of daily headaches and decreased

attention and concentration. On examination, Bradley was distractible, easily confused, and

overwhelmed when presented with fast-paced or ambiguous situations. Bradley’s husband reported

that his wife was unable to keep up with details and became emotionally labile.3

 Although her longterm memory was acceptable, her short-term memory and new memory encoding was poor.

Bradley’s husband opined that his wife had experienced even more deterioration in her memory in

the last few years. (Tr. 570).

Jones administered tests that showed impairment in Bradley’s ability to process auditory and

 

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visual information. She exhibited impaired motor speed and general deficits in fine and gross motor

coordination, emotional dysfunction, and severe impairment in abstraction, concept formation,

judgment and reasoning. (Tr. 577). Jones diagnosed encephalopathy secondary to an infectious

disease process in 1974 that caused brain cell death. Additional diagnoses included a cognitive

disorder and a major depressive disorder. Jones opined that, as Bradley continued to age, she had

become increasingly impaired and was now disabled and had been disabled for the past several

years. (Tr. 577). 

Jones completed a medical assessment of Bradley’s ability to performed work-related mental

activities. He opined that she had poor ability to make most occupational adjustments, although her

ability to relate with coworkers or the general public was fair. (Tr. 579). He opined that she had

poor ability to understand, remember and carry out even simple job instructions; perform within a

schedule, maintain regular attendance, and be punctual; complete a normal workday and workweek

without interruptions from psychologically based symptoms; and perform at a consistent pace

without an unreasonable number and length of rest periods. Jones noted that Bradley demonstrated

significant emotional lability when confronted with minimal levels of stress due to the her cognitive

and other deficits. (Tr. 580). 

In January 2005, Jones supplemented his findings and clarified that Bradley’s functioning

had been at the level he described since at least December 31, 1992. (Tr. 782, 785). He indicated

that he had reviewed his previous evaluation as well as the reports from Kevin Karlson and Gerald

Stephenson before rendering his opinion. (Tr. 785). Jones also completed a psychiatric review

technique form on which he indicated that Bradley’s impairment met or equaled the severity of a

 

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4

 The ALJ relied on evidence presented at both the third and fourth administrative hearings.

5

 The 2002 MRI was ordered after Bradley fell, striking her head. (Tr. 495-96).

6

 Vasculitis refers to inflammation of a blood or lymph vessel. DORLAND’S at 1935.

Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 9

listed impairment. He stated that his opinions on the psychiatric review technique form addressed

Bradley’s functioning since at least December 31, 1992. (Tr. 770-82).

2. Administrative Hearings4

a. Medical Expert Evidence

Psychiatrist Ann Turbeville testified as a medical expert during the third administrative

hearing. She noted that two magnetic resonance imaging (MRI) studies in 1999 and 20025

 showed

lesions that were attributed to hypertension or vasculitis,6

 (Tr. 496, 523), while neuropsychological

testing showed some memory and learning deficits; however, Turbeville considered the MRIs and

test results to be too recent to provide an idea of Bradley’s cognitive abilities before December 31,

1992. (Tr. 422). She noted that some people with chronic migraine headaches developed lesions in

their brain that could cause dementia, but she was unable to say that this was true for Bradley in

1992. (Tr. 423). The reasons Bradley stopped working were unclear to Turbeville because some

reports noted a personality conflict between Bradley and her supervisor, some reports noted

accusations of addiction to narcotic pain relievers, and some reports reflected that Bradley was

unable to perform new job responsibilities. Turbeville agreed that learning a new job, but not more

minor work place changes, would be difficult for Bradley. (Tr. 423-24).

Turbeville testified that it was difficult to identify what type of work Bradley could have

performed during the relevant 1987-1992 time frame. There was no information or medical

 

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7

 Listing 12.02 addresses organic mental disorders, which involve psychological or behavioral

abnormalities associated with dysfunction of the brain. 20 C.F.R. Part 404, Subpart P, App. 1, Listing 12.02.

Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 10

evidence that Turbeville could use to measure the level of deterioration in Bradley’s functioning.

(Tr. 424-25). Turbeville conceded that an MRI of Bradley’s brain in 1970 could show the same

positive findings as the later MRI studies, but was unable to say for certain, nor could she correlate

any positive findings on the MRI scans with the type of symptoms that Bradley reported. (Tr. 426).

Turbeville testified that opiate pain medications could affect memory and the ability to organize, but

also noted that Bradley had remained on stable doses of medication over the years and there was no

indication that she was abusing her medication. (Tr. 430). When the ALJ asked Turbeville to

address some of the tests administered by Karlson in 1989, Turbeville indicated that she was

unfamiliar with those tests because she was not a psychologist. (Tr. 428).

John Simonds, M.D., testified as a medical expert during the fourth administrative hearing.

He summarized Bradley’s medical history, including toxic shock syndrome in 1974 and persistent

and chronic headaches. (Tr. 733-34). Simonds testified that Bradley’s neurological examinations

had been normal, and diagnostic tests were also within normal limits. He noted that Stephenson’s

mental capacity report was relatively unremarkable, while Jones had identified more problems with

Bradley’s functioning. A recent MRI had also showed some non-specific disease process. 

Simonds opined that Jones’ report, when combined with the MRI findings, could meet or

equal Listing 12.027

 as of 2002. (Tr. 735, 750). Simonds observed that Jones had performed

additional tests during his evaluation that Stephenson had not performed during the evaluation one

month earlier; however, Simonds opined that it was too great a leap to conclude that Bradley’s

 

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severe impairments in attention, concentration, judgment and memory were attributable to toxic

encephalopathy in 1974. (Tr. 740). Simonds noted that the record did not contain test results from

1974 to confirm such a diagnosis. In addition, Simonds opined that the MRI findings were most

likely a reflection of a hypertensive disorder, although he conceded that he was not an expert in that

area of medicine. (Tr. 740). Simonds also noted that there was no way to determine how long

Bradley’s condition had been as severe as reflected in Jones’ assessment because the disease was

a progressive one that caused deterioration over time. (Tr. 741-42). 

b. Lay Testimony

Bradley testified that she had trouble completing her work even before January 1987. She

used her vacation time to cover days she missed work due to headaches, and also worked late or took

work home with her to stay caught up with her assignments. (Tr. 755-56). She testified that her

work pace had been slower because she had to proofread her assignments several times. She lost

her position with the company after they assigned her new job duties that she was unable to do and

accused her of drug addiction. (Tr. 395, 400-02, 757). Bradley testified that within days of her

hysterectomy in 1974 she was aware that she had a problem because she had difficulty reading the

messages scrolling across the bottom of the television screen in her hospital room. (Tr. 759-60). 

Bradley’s husband of forty-six years also testified that his wife had received high

performance ratings at work until the early 1980s when she failed training courses for her new job

with AT&T. (Tr. 763-64). He testified that his wife began having work-related problems after

recovering from the infection in 1974, and her condition continued to deteriorate even after she

stopped working. (Tr. 412, 418-19). He testified that his wife was not reliable enough to maintain

 

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8 There are four broad functional areas in which the ALJ rates the degree of functional limitation: activities

of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. 20 C.F.R. §

404.1520a(c)(3). The ALJ rates the degree of limitation in the first three functional areas (activities of daily living;

social functioning; and concentration, persistence, or pace), using a five-point scale: none, mild, moderate, marked

and extreme. The degree of limitation in the fourth functional area (episodes of decompensation) is evaluated using a

four-point scale: none, one or two, three, four or more. The last point on each scale represents a degree of limitation

that is incompatible with gainful activity. Id. § 404.1520a(c)(4). If the ALJ rates the degree of limitation in the first

three functional areas as "none" or "mild" and "none" in the fourth area, he generally may conclude that the

impairment is not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in the

claimant's ability to do basic work activities. Id. § 404.1520a(d)(1). 

Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 12

competitive employment. (Tr. 413).

3. ALJ Decision

The ALJ found that Bradley had not engaged in substantial gainful activity since her alleged

onset date, and met the disability insured status requirements through December 31, 1992. He also

found that Bradley had severe impairments during the relevant period that included a headache

disorder with cognitive limitations secondary to a uterine infection; however, the ALJ did not find

any impairments that met or equal the severity of a listed impairment. The ALJ noted that Bradley

had more recently been diagnosed with an organic brain impairment, but the ALJ found no objective

evidence that Bradley had suffered from restrictions in her activities of daily living, social

functioning, concentration, persistence or pace during the relevant time period, nor were there

documented episodes of decompensation.8

 (Tr. 619). Accordingly, the ALJ found no severe mental

impairment existed before December 31, 1992.

The ALJ considered Bradley’s residual functional capacity and determined that Bradley had

retained the exertional capacity for a modified range of light work activity with the following

restrictions related to her headache disorder: Bradley was limited to simple, repetitive work not

requiring the use of independent judgment and was capable of coping with only minimal changes

 

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in a daily work routine. (Tr. 619). Based on vocational evidence provided during a previous

administrative hearing, the ALJ found Bradley was not capable of performing her previous work,

but was able to perform a significant number of other jobs available in the national economy. The

ALJ concluded that Bradley was not disabled or entitled to disability insurance benefits. (Tr. 620).

E. DISCUSSION

Bradley contends that the ALJ did not properly evaluate her organic mental disorder, which

Jones had opined met Listing 12.02. She further contends that the ALJ did not consider medical

evidence that existed before December 1992 and supports Jones’ conclusions that she was disabled

on or before the date she was last insured for benefits. In his decision, the ALJ agreed that the

results of Bradley’s 2002 consultative evaluations demonstrated current disability, but he did not

find that this disability existed before Bradley’s insured status expired. (Tr. 614). 

Social Security Ruling 83-20 prescribes the administrative policy and procedure for

determining the onset date of a claimant’s disability. Spellman v. Shalala, 1 F.3d 357, 361 (5th Cir.

1993). See generally SOCIAL SECURITY RULING 83-20. The onset date is set as the date on which

it is most reasonable to conclude from the evidence that a given impairment was sufficiently severe

to prevent substantial gainful activity for a continues period of at least twelve months. SOCIAL

SECURITY RULING 83-20. Onset date is important because it may affect the period for which a

claimant can be paid, and it may determine whether a claimant is eligible for any benefits. Id.;

Spellman, 1 F.3d at 361. 

A claimant’s alleged onset date is used as a starting point for determining the onset of nontraumatic disabilities, and the claimant’s onset date is to be used as the established onset date when

 

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consistent with the available evidence. Ivy v. Sullivan, 898 F.2d 1045, 1048 (5th Cir. 1990). The

claimant’s onset date may be rejected only if reasons are articulated and those reasons are supported

by substantial evidence. Id. In addition, the Fifth Circuit and the Social Security Rulings require

the services of a medical advisor when there are issues regarding the onset of disability for

progressively debilitating disorders and the onset date is ambiguous. See Spellman v. Shalala, 1

F.3d 357, 360-63 (5th Cir. 1993); SOCIAL SECURITY RULING 83-20. The ALJ’s selection of an onset

date must be supported by convincing rationale. See SOCIAL SECURITY RULING 83-20.

Bradley complains that the ALJ gave undue weight to the testifying medical experts to

support his determination that Bradley was not disabled at any time before her insured status

expired.

She also complains of the ALJ’s failure to comply with the district court’s most recent remand order,

as well as the instructions of the Appeals Council on remand.

The district court remanded this case in June 2004 based on the Commissioner’s

representation that the ALJ erred in rejecting Jones’ opinion on grounds that Jones had not attempted

to retroactively establish an onset date. The Commissioner stated that, on remand, the ALJ would

resolve the issue of an onset date and recontact Jones for clarification of his assessment. (Plf. App.

19-20). The Appeals Council entered a corresponding order, finding that the record did not support

the ALJ’s conclusion that Bradley had no severe mental impairment prior to her date last insured.

(Tr. 624). The Appeals Council further found that Jones’ disability opinions had been improperly

rejected without recontacting him for clarification or to solicit an opinion about the onset of

Bradley’s disability. (Tr. 624). 

 

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9

 Specifically, Jones was asked

Can you reasonably infer, from your evaluation of the patient, the patient’s history, your

experience in treating patients with similar conditions, and (if applicable) reviewing the patient’s

prior medical records, that this indvididual’s functioning has been impaired to approximately the

same extent you have indicated on this form at least since 12/31/1992?

(Tr. 782, 785). Jones answered in the affirmative.

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The Commissioner admits that the ALJ did not recontact Jones after remand. Bradley took

it upon herself to do so and elicited evidence from Jones that her functioning had been impaired to

approximately the same extent since at least December 31, 1992.9

 (Tr. 782, 785). The ALJ

acknowledged Jones’ opinion that Bradley suffered from a disabling organic mental impairment

before December 31, 1992, but the ALJ remarked on Jones’ failure to otherwise establish a specific

onset date. The ALJ relied on medical expert Simonds, who stated that Jones’ test results in 2002

did not relate back to Bradley’s last insured date because the tests themselves did not specify when

the mental limitations identified may have arose or accelerated. (Tr. 617). 

The ALJ found that Bradley’s MRI and other diagnostic studies were not interpreted as

showing or confirming an encephalopathy, but seems to place more importance on this lack of

positive findings than is due. Medical expert Simonds acknowledged, based on a review of the MRI

studies as well as the 2002 neuropsychological test results, that Bradley may have had an organic

brain impairment of listing-level severity by September 2002. (Tr. 617). In addition, the

administrative regulations recognize that comprehensive neuropsychological examinations may be

used to establish both the existence and the extent of compromise of brain function, particularly in

 

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10 One test for brain dysfunction specifically approved in the regulations is the Halstead-Reitan, which

Jones administered, but Stephenson apparently did not during his evaluation one month earlier. (Tr. 456, 575, 741).

See generally 20 C.F.R. Part 404, Subpart P, App. 1, Listing 12.00(D)(8).

Findings, Conclusions and Recommendation of

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cases of organic mental disorders.10 20 C.F.R. Part 404, Subpart P, App. 1, Listing 12.00(D)(8). 

The ALJ relied on information from Bradley and her spouse that her condition had

deteriorated more rapidly in the past few years, i.e., after her insured status expired. The ALJ does

not explain how the information refutes medical source opinions that Bradley’s condition was

disabling before December 31, 1992, even if her condition has worsened with age. Conversely, the

ALJ assigns no weight to the assertions of Bradley and her spouse that her memory and processing

problems began following her recovery from an infection in 1974, which would indicate that her

organic brain disorder was a technically severe–if not disabling–mental impairment before Bradley’s

insured status expired. A retrospective medical diagnosis uncorroborated by contemporaneous

medical reports, but corroborated by lay evidence relating back to the claimed period of disability,

can support a finding of past impairment. Likes v. Callahan, 112 F.3d 189, 190 (5th Cir. 1997). 

The ALJ’s determination that there was no indication that Bradley’s mental limitations arose

or accelerated before her insured status expired also conflicts with Karlson’s court-ordered

consultative evaluation in 1989. In his written decision, the ALJ acknowledges only that Karlson

attributed Bradley’s condition to an underlying headache disorder, but Karlson’s actual

determination was that Bradley suffered from brain damage and intense chronic headaches as a

result of a severe pelvic infection in 1974. (Tr. 250). Karlson identified memory and concentration

deficits, as well as visual perceptual problems. He also noted that brain-damaged patients had

difficulty adapting to changes in routine or learning new information and skills, which he offered

 

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as an explanation for Bradley’s reported difficulties at work. (Tr. 250). Karlson’s opinions are

similar to opinions that Jones offered after evaluating Bradley more than a decade later. 

The ALJ also criticized Jones for opining that Bradley suffered from a disabling organic

mental impairment before December 31, 1992 without otherwise specifying an established onset

date. (Tr. 616). If the ALJ found Jones’ opinion was too imprecise with respect to Bradley’s onset

date, he should have taken the opportunity the court and the Appeals Council gave him to clarify

Jones’ opinion. The administrative regulations likewise provide for recontacting medical sources

when a report contains a conflict or ambiguity that must be resolved. 20 C.F.R. § 404.1512(e). 

The ALJ fails to provide a convincing rationale for selecting an onset date contrary to Jones’ opinion

that Bradley became disabled on or before the date her insured status expired.

The question becomes what to do with a case that has remained unresolved for thirteen years,

has been the subject of four administrative hearings and four administrative decisions, and has been

shuttled between the district court and the Commissioner on two prior occasions. At least one of

those occasions involved the same issue presented here, namely the determination of the onset date

of Bradley’s disabling mental impairments, yet the Commissioner did not make full use of the

opportunity on remand to justify her decision that any disability postdated the expiration of

Bradley’s insured status. (Tr. 383). 

 Although remand for further consideration may be a viable option, it is not the best option

under the circumstances. Bradley has made numerous attempts in the course of thirteen years to

obtain a decision that is supported by the record and not a product of legal error. The Commissioner

presents no persuasive reason why Bradley’s entitlement to a resolution of her case should be

 

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Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 18

delayed to give the Commissioner yet another opportunity to consider Bradley’s application when

the record already contains medical opinion evidence that Bradley’s disability began on December

31, 1992, if not before. 

RECOMMENDATION

It is recommended that the decision of the Commissioner be reversed and benefits awarded

with a disability onset date of December 31, 1992. The case should be remanded to the

Commissioner solely for the purposes of calculation and payment of disability benefits commencing

December 31, 1992. 

NOTICE OF RIGHT TO OBJECT TO PROPOSED

 FINDINGS, CONCLUSIONS AND RECOMMENDATION

 AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific

written objections in the United States District Court to the United States Magistrate Judge’s

proposed findings, conclusions and recommendation within ten (10) days after the party has been

served with a copy of this document. The court is hereby extending the deadline within which to

file specific written objections to the United States Magistrate Judge’s proposed findings,

conclusions and recommendation until March 20, 2006. The United States District Judge need only

make a de novo determination of those portions of the United States Magistrate Judge’s proposed

findings, conclusions and recommendation to which specific objection is timely made. See 28

U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a proposed

factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest

injustice, from attacking on appeal any such proposed factual findings and legal conclusions

 

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Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 19

accepted by the United States District Judge. See Douglass v. United Services Auto Ass'n, 79 F.3d

1415, 1428-29 (5th Cir. 1996)(en banc).

 

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Findings, Conclusions and Recommendation of

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ORDER

Under 28 U.S.C. § 636, it is hereby ORDERED that each party is granted until March 20,

2006 to serve and file written objections to the United States Magistrate Judge’s proposed findings,

conclusions and recommendation. It is further ORDERED that if objections are filed and the

opposing party chooses to file a response, the response shall be filed within seven (7) days of the

filing date of the objections.

It is further ORDERED that the above-styled and numbered action, previously referred to

the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby

is returned to the docket of the United States District Judge.

SIGNED FEBRUARY 27, 2006.

/s/ Charles Bleil

________________________________

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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