UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

LAFAYETTE DIVISION

JEFFREY P. CANEN, )

)

Plaintiff, )

)

v. ) No. 4:13 CV 2 PPS

)

COMMISSIONER OF SOCIAL SECURITY, )

)

Defendant. )

OPINION AND ORDER

Jeffrey Canen seeks review of the Social Security Administration's (SSA) decision to deny

his application for disability insurance benefits. Canen worked construction for decades until a

series of degenerative health problems took their toll on his back, shoulder and knees. He applied

for disability benefits in 2010, claiming that he became disabled in November 2009. After a

hearing, the ALJ found that Canen hadn’t become disabled until July 14, 2010, seven months after

his date last insured, rendering him ineligible for benefits. On appeal, Canen claims that the ALJ

erred by not consulting with a medical advisor before determining the onset date of his disability. I

agree. Therefore, the matter is REMANDED back to the ALJ for a redetermination of the onset

date.

BACKGROUND

Jeffrey Canen labored as an ironworker in the construction industry for over thirty-five

years. His career ended, and his present difficulties began, on March 23, 2005 when he fell thirty

feet to the ground while dismantling an elevator at a worksite. (R. 65.) Canen fractured his right

shoulder - specifically the glenoid, or socket, of the shoulder joint - during the fall. (Id.; R. 277.) 

Although his shoulder did not require surgery, Canen underwent months of physical therapy and

has never held a job since – other than in prison but more on that in a moment. (R. 47, 249-250.) 

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While he was recovering, Canen also complained of back pain. An MRI revealed that he was

suffering from an unrelated degenerative disc disease that was causing a stenosis, or narrowing, of

the thecal sac (the membrane that surrounds the spinal cord) as well as a displaced vertebrae. (R.

248.) By the time Canen completed physical therapy, his workers compensation physician, Dr.

McLimore, determined that Canen's back pain could be controlled through exercise,

over-the-counter pain medication, and transcutaneous electrical nerve stimulation. (R. 250.) 

As part of his workers compensation claim, Canen underwent a functional capacity

evaluation (FCE) in September 2005 with physical therapist Marinanne Fleming. (R. 262.) 

Fleming opined that Canen was capable of performing at the "light work" level, meaning "exerting

up to 20 pounds rarely/occasionally, and/or up to 10 pounds of force frequently, and/or a negligible

amount of force constantly." (Id.) Dr. McLimore relied on the FCE to impose the permanent

restrictions on Canen: no lifting greater than 25-35 pounds occasionally, no pushing or pulling

greater than 50 pounds occasionally, and no repetitive lifting, twisting or bending. (R. 250.) 

Osteopath Todd Midla evaluated Canen in March 2006. Midla examined Canen's shoulder and

back, and estimated that Canen's whole person impairment rating was 15%. (R. 278.) Midla

opined that Canen's shoulder injury was "quiescent," meaning joint replacement wasn't necessary at

the time, but might be required down the road. (Id.)

As alluded to above, in September 2006, Canen went to prison to begin serving a ten year

sentence for dealing methamphetamine and cocaine. He ultimately served four years, securing

release in April 2010. (R. 45, 48.) While in prison, Canen had several jobs, including working at a

weld shop and a wastewater facility. (R. 48.) But as his health declined close to his release date,

Canen was moved to a sedentary job (library clerk) which allowed him time to rest during the day. 

(R. 66-67.) 

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While in prison, Canen frequently visited the medical staff, receiving treatment for

temporary ailments like allergies and ear infections, as well as for chronic problems like his

persistent shoulder and back pain. (R. 25, 302-337.) His pain was treated with over-the-counter

medication. (R. 297, 300, 303, 307.) In light of his health problems, Canen received a bottom

bunk pass and a ten-pound lifting restriction. (Id.)

Beginning in August 2008, Canen's medical records show he developed two new problems. 

First, Canen began taking a prescribed anti-depressant. (R. 319.) That same month, Canen began

to complain of pain in his knees. (R. 319, 322.) Canen had a history of arthritis pain and had had

his knees scoped prior to prison, but, starting in August, his knees started to exhibit swelling and

soreness. (R. 299, 311, 319, 322.) Canen claims the pain worsened significantly when he twisted

his left knee while cutting rebar in the prison weld shop on October 1, 2009. (R. 26, 48.) Records

show that he was treated for left knee pain and swelling five days later. (R. 326.) The attending

nurse wrote that the visit was attributable to an "[i]njury here at DOC." (Id.) On December 9,

2009, he again sought treatment for pain in his left knee. The treating nurse wrote that the pain

was caused by a recent injury, namely "[t]wisted knee on 10/1/2009." (R. 341.) He was treated

with over-the-counter pain medication on both occasions. (R. 327, 342.) The pain in Canen's left

knee persisted after he was released from prison. A June 2010 MRI showed evidence of arthritis,

and Canen's doctor prescribed anti-inflammatories and exercise to help control symptoms. (R. 28,

377-78, 383.) The pain continued to worsen until Canen underwent knee replacement surgery in

February 2011. (R. 521.)

Canen was released from prison in April 2010. That month, Dr. Whitley, a non-examining

state agency physician, reviewed Canen's records. He found that Canen had an inoperable broken

shoulder, degenerative discs in his spine, a knee injury, depression, arthritis and diabetes, but

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ultimately concluded that these were not severe impairments. (R. 361.) Dr. Neal, another

non-examining state agency physician, affirmed Dr. Whitley's assessment on July 29, 2010. (R.

394-395.)

After his release from prison, Canen sought treatment for depression and memory loss in

addition to his above-mentioned treatment for joint pain. (R. 596-574.) He was diagnosed with

depression and prescribed anti-depressants beginning in December 2010. (R. 570.) During his

visits to his clinic, Canen regularly consulted Nurse Practitioner Cheryl Sabans and Social Worker

Randall Pickering. On July 14, 2010, Sabans and Pickering opined that Canen was "permanently

disabled by the synergistic combination of physical and mental conditions which afflict him,"

including degenerative disc disease, pancreatitis, Type II diabetes, arthritis, and left leg edema. (R.

289-392.) They were particularly concerned that Canen was showing symptoms of an undiagnosed

brain disorder, including memory loss and episodes of unresponsiveness. (R. 392.) Canen's

treating physician, Dr. French, came to the same conclusion in September 2010, opining that

Canen was disabled due to "severe peripheral neuropathy, right shoulder and low back pain,

depression, and Type II diabetes." (R. 415.) 

Canen was seen by a consulting physician, Dr. Duan Pierce, on September 7, 2010, who

found Canen was capable of working with some limitations. (R. 396-398.) Dr. Pierce observed

that Canen had swelling and tenderness in the left knee and right shoulder, as well as a reduced

range of motion in those joints. (R. 398.) He found that although Canen could probably benefit

from physical therapy, he was still capable of lifting ten pounds occasionally and standing for up to

three hours at a time. (Id.) Likewise, Dr. Neal performed a Residual Functional Capacity

Assessment around the same time. He found that Canen was capable of sedentary work with

postural and manipulative limitations. And that Canen could occasionally lift ten pounds, stand or

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walk at least two hours in an eight-hour workday, and sit about six hours in an eight-hour workday. 

(R. 401-402.) 

 On February 23, 2010, Canen protectively filed a Title II application for disability

insurance benefits, alleging he had been disabled since March 23, 2005. (R. 21.) He also filed an

application for supplemental security income alleging the same March 23 onset date. (Id.) Both

applications were denied (Id.) Canen appealed and requested a hearing, which he testified at along

with an impartial vocational expert. At the hearing, Canen's attorney amended the alleged onset of

disability date to November 1, 2009. (Id.) 

The ALJ rendered a partially favorable decision, finding Canen was disabled beginning on

July 14, 2010. (R. 32.) The ALJ found that, as of that date, Canen had the residual functional

capacity to do sedentary work, but, given his age, education and experience, there were no jobs in

the national economy he could perform. (R. 28.) Canen's date last insured for disability benefits

was December 31, 2009. So, as a result of the ALJ's decision, Canen's application for

supplemental security income was granted, but his application for disability insurance benefits was

denied. The Appeals Counsel denied Canen's Request for Review and this appeal followed.

II. DISCUSSION

Canen’s primary argument on appeal is that the ALJ erred by not calling upon a medical

advisor to determine his disability onset date. In cases like this one where the claimant challenges

the disability onset date, my role is limited to deciding whether the ALJ's chosen onset date is

supported by substantial evidence. Pugh v. Bowen, 870 F.2d 1271, 1279 (7th Cir. 1989). Evidence

is substantial if a reasonable person would accept it as adequate to support the conclusion. Young

v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004); see also Berger v. Astrue, 516 F.3d 539, 544 (7th

Cir. 2008). 

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Often, it is easy to determine the disability onset date because the claimant's disability

stems directly from some traumatic event, like a car accident. It's harder to pinpoint the date when

the claimant, as here, suffers from progressive conditions that gradually worsen over time. In these

cases Social Security Ruling 83-20 sets out the procedure the ALJ is to follow. When determining

a claimant’s disability onset date, the ALJ must consider (1) the claimants allegations as to the

onset date; (2) the date that the claimant left work; and (3) the medical evidence of onset. 

Henderson ex rel. Henderson v. Apfel, 179 F.3d 507, 513 (7th Cir. 1999) citing SSR 83-20. The

medical evidence is the most important factor and the chosen onset date must be consistent with it. 

Id. 

If medical evidence does not reveal an exact onset date, the ALJ has to infer one. SSR 83-

20; Lichter v. Bowen, 814 F.2d 430, 434 (7th Cir. 1987). When the ALJ has to infer an onset date,

SSR 83-20 requires that the ALJ consult a medical advisor. Lichter, 814 F.2d at 434; Gutka v.

Apfel, 54 F. Supp. 2d. 783, 787 (N.D. Ill. 1999) (SSR 83-20 “requires an ALJ to call upon a

medical advisor in cases where the onset of a disability cannot be affixed to a particular date and

must consequently be inferred.”). This consultation is unnecessary when the medical record is

complete enough to unambiguously fix the correct onset date. See Henderson, 179 F.3d at 513. So

the critical question in this case is whether the medical evidence was sufficient to establish the

precise onset date of July 14, 2010 and render the consultation with the medical advisor

unnecessary. I find that it was not. 

In her opinion, the ALJ first found that Canen was not disabled before July 14, 2010

because, before that date, he did not have a severe impairment, meaning, an impairment or

combination of impairments that would prevent him from performing basic work activities. (R.

24.) However, the ALJ did find that prior to 2010, Canen already had several of the impairments

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that would eventually leave him disabled. (R. 24-25.) She found Canen had a history of diabetes

dating to 2004. (R. 26.) He sustained a serious right shoulder fracture from the 2005 injury. (R.

24.) He had a painful degenerative disc condition that was diagnosed around 2005. (Id.) Finally,

he had left knee pain from a progressive arthritic condition starting in 2009. (Id.) 

The ALJ then found that Canen was disabled as of June 14, 2010 because “beginning on

July 14, 2010” Canen had a severe combination of impairments, namely a left knee replacement, a

right shoulder fracture, degenerative disc disease of the lumbar spine, depression, and he was post

presumptive small ischemic stroke, which means that the blood supply to part of his brain had been

cut off. See www.cedars-sinai.edu/Patients/Health-Conditions/Ischemic-Stroke.aspx; (R. 27.) The

“beginning on” is doing a lot of work in that sentence as these impairments either existed well

before, or developed after, the July 14, 2010 date. For example, Canen’s knee wasn’t replaced

until February 2011 (R. 521.) The presumed stroke didn’t occur until January or February 2011. 

(R. 29.) Canen wasn’t diagnosed with depression until December 2010, although the record shows

treatment for depression in August 2009, well before the July 2010 date. (R. 319, 570.) His

diabetes dates from 2004, and his back and shoulder pain from 2005. (R. 25-26.) The arthritis that

led to the knee replacement began in August 2009, and was diagnosed in June 2010. (R. 319, 377-

78.)

Frankly, the only evidence in the record supporting the July 14, 2010 onset date is the

statement made by social worker Pickering and Nurse Sabens. They wrote that Canen was

disabled due to his myriad physical impairments and speculated that he was showing symptoms of

an undiagnosed brain disorder. (R. 392.) This might have provided solid medical evidence for the

July onset date, but for the fact that the ALJ rightly gave the statement little weight as neither

Pickering nor Sabens are an acceptable medical source according to the Social Security

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regulations. (R. 29.) 

As the above makes plain, this is a case for calling a medical advisor. The ALJ determined

that Canen had a host of degenerative problems that gradually increased in number and intensity

until, at some point, he became disabled. There was nothing solid in the medical record pointing to

any one date as the tipping point where Canen’s preexisting medical conditions became disabling,

so the ALJ had to infer the date from the records. In these situations SSR 83-20 requires

consultation with a medical advisor. See Lewis v. Astrue, 518 F. Supp. 2d 1031, 1040-41 (7th Cir.

2007) (ALJ erred by not consulting medical advisor when medical records prior to selected onset

date indicated the same cluster of symptoms and diagnoses as those records after the onset date);

Gutka, 54 F. Supp. 2d at 787 (ALJ erred by failing to involve a medical advisor when medical

records did not establish the onset date of the claimant’s depression); Williams v. Chater, No. 96 C

1833, 1996 WL 473466, at *6 (N.D. Ill. Aug. 16, 1996) (ALJ erred by not consulting with a

medical advisor before determining the onset date of a claimant with degenerative neuromuscular

disorders). 

The Secretary argues that the medical record was so complete that consultation was

unnecessary. Canen had been treated by doctors regularly and had had his functional capacity

evaluated several times, including in April 2010 when the state examining physician found

insufficient evidence of disability. The record was substantial, but it was not complete because it

did not point to an onset date, forcing the ALJ to infer one. There was evidence in the record from

which she could have inferred an earlier date, so the ALJ’s failure to consult the medical advisor

before choosing the onset date was an error and necessitates a remand of this matter. Rice v. Apfel,

8 F. Supp. 2d 769, 774 (N.D. Ill. 1998). 

III. CONCLUSION

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Therefore, and for the reasons set forth herein, the matter is REMANDED back to the

agency for further proceedings consistent with this opinion. 

SO ORDERED.

ENTERED: November 8, 2013

 s/ Philip P. Simon 

PHILIP P. SIMON, CHIEF JUDGE

UNITED STATES DISTRICT COURT 

 

 

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