UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Susan E. Fedele

v. Civil No. 08-cv-520-JD

Opinion No. 2009 DNH 090

Michael J. Astrue, Commissioner,

Social Security Administration

O R D E R

Susan E. Fedele seeks review, pursuant to 42 U.S.C. §

405(g), of the Commissioner’s decision denying her application

for social security disability insurance benefits. She contends

that the Administrative Law Judge (“ALJ”) erred by not consulting

a medical advisor, failing to properly credit her husband’s

testimony at the hearing, and failing to give controlling weight

to the residual functional capacity evaluations completed by her

treating physicians. The Commissioner moves to affirm.

Background

Susan Fedele filed an application for disability insurance

benefits on August 25, 2006, alleging that she had been disabled

by the effects of multiple sclerosis since May 31, 1992. Fedele

had a college education and had previously worked as a registered

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1The parties’ joint factual statement mistakenly states that

Fedele was thirty-five years old on the date when the ALJ issued

the decision in her case in September of 2008. The record shows

that she was thirty-five in September of 1995, when her insured

status expired. 

2Fedele’s medical records are incomplete because some of the

records were unavailable by the time she filed her application.

2

 nurse. She was forty-six years old when she filed her

application.1

The administrative medical record begins with a treatment

note by Dr. Gerald Indorf in May of 1992 when Fedele complained

of numbness in her right arm after gardening.2 After testing,

Dr. Indorf assessed brisk reflexes and sensory deficits in

Fedele’s right arm and leg, which he felt were “more central”

rather than the result of carpal tunnel syndrome. A magnetic

resonance imaging (“MRI”) study of her cervical spine, done on

May 28, 1992, showed an abnormal signal. Dr. Oot wrote that a

demyelinating process, such as multiple sclerosis, was a possible

cause. On June 2, 1992, Fedele had a brain MRI that showed

multiple abnormal areas. Dr. Matthew Levine thought the most

likely diagnosis was a demyelinating process such as multiple

sclerosis.

Dr. Indorf met with Fedele and her husband on June 4, 1992. 

He reported to them that her imaging studies and clinical

presentation were consistent with a demyelinating disease. He

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explained that the exacerbation of her systems could be

associated with her pregnancy. In response to her husband’s

question, Dr. Indorf said that the only lifestyle changes he

recommended were to avoid overheating and particularly exercising

in the heat. On August 11, 1992, Fedele reported to Dr. Indorf

that she was having a complete remission of her symptoms, but she

also reported slight tingling in her hands and feet and

tiredness. Dr. Indorf diagnosed multiple sclerosis and

recommended that Fedele avoid excessive heat.

On November 10, 1992, Dr. William House gave Fedele a

Pattern Shift Visual Evoked Response Study, which was abnormal. 

Dr. House felt that clinical correlation was necessary.

Fedele saw Dr. Joan Breen on December 19, 1995, for a

follow-up appointment, after her initial visit in mid-1994. Dr.

Breen reported that Fedele, who was pregnant, was doing well

overall. Fedele reported some numbness and diminished sensation

in her right leg and a period of increased tripping which had

lasted for about two months. She denied other symptoms, except

that she had mild occasional tingling of her right finger tips,

which had continued since May of 1992. Dr. Breen thought

Fedele’s leg numbness was due to multiple sclerosis.

A year later, in November of 1996, Fedele told Dr. Breen

that she had started to feel off balance when she was playing

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tennis or running. Her vision was unaffected; she had no

difficulty gripping her tennis racquet, and her other fine motor

skills remained normal. Fedele thought her balance had improved

after she received treatment for a sinus infection. The results

of Fedele’s neurological exam were quite good, and Dr. Breen

thought the balance issue was caused by the sinus infection. Dr.

Breen concluded that overall Fedele continued to be stable and

quite good as far as her multiple sclerosis.

In April of 1998, Fedele reported to Dr. Breen that she was

not doing as well as she had the year before. She said that she

was not able to play tennis as well as she used to and that she

was catching her toes and tripping. She also reported blurred

vision while playing tennis and feeling more fatigued. She did

not have difficulty reading, writing, cooking, or caring for her

three children. Her memory and cognition were fine. She said

that she exercised by running about three miles each day and

remained involved in her community and her children’s activities,

which was a demanding schedule. An MRI in May of 1998 showed

more areas of abnormal signal compared to the 1992 MRI. In May

of 1999, Dr. Breen reported that Fedele had remained stable over

the past year, that she had some difficulties with balance and

had stopped playing tennis, and that she continued to exercise

regularly.

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Fedele saw Dr. Patricia Locuratolo in October of 1999 for

relapsing remitting multiple sclerosis. Dr. Locuratolo reported

that Fedele had numbness in her right arm and some visual

blurring but no major exacerbations. Despite some mild

neurological dysfunction, Fedele exercised vigorously almost

daily and attended yoga. When she saw Dr. Locuratolo again, in

June of 2001, Fedele was feeling fairly well. Dr. Locuratolo

noted that Fedele had had an exacerbation of her symptoms during

the summer of 2000. 

Fedele saw Dr. David Hafler in July of 2001 who noted that

she had done very well until 1996 when the early progressive

phase of the disease began. He noted that Fedele and her husband

had noticed that she had difficulty walking since 1997. In Dr.

Hafler’s opinion, Fedele had entered the early stages of chronic

progressive multiple sclerosis and would slowly but progressively

get worse. By November of 2003, Fedele reported unstable balance

so that she required bilateral support to walk more than twentyfive feet. She also had difficulty holding things with her

hands.

In March of 2007, a state agency physician, Dr. Joseph

Cataldo, reviewed Fedele’s available medical records for the

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3Fedele’s last insured date was September 30, 1995.

4At the hearing, Fedele’s husband testified that Dr.

Sonnenborn’s treatment notes were not in the record because they

were not available due to the passage of time.

6

period between May of 1992 and September of 1995.3 Dr. Cataldo

noted that her records did not include an evaluation of her

physical capacities by a treating source. He concluded that

Fedele was capable of performing work at the light exertional

level during that period, with postural requirements, such as

balancing and stooping, limited to occasionally, and with a

limitation to avoid even moderate exposure to heat and hazards.

Dr. Henry Sonnenborn evaluated Fedele’s functional

limitations in May of 2007 and found them consistent with

complete disability.4 Dr. Breen agreed with that evaluation in

June of 2008. A typed line at the bottom of Dr. Breen’s form,

underneath her signature stated: “This evaluation reflects Mrs.

Fedele’s limitations on 9/30/1995.” Dr. Sonnenborn completed a

second evaluation on July 7, 2008, with the same results. The

same statement was typed under Dr. Sonnenborn’s signature: “This

evaluation reflects Mrs. Fedele’s limitations on 9/30/1995.” Dr.

Sonnenborn wrote on a prescription pad that he had been Fedele’s

primary care physician for the past twenty years, including

September 30, 1995.

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5Fedele’s husband is a physician.

7

A hearing on Fedele’s application was held on August 7,

2008. Fedele and her husband testified at the hearing.5 Fedele

testified that her condition had become progressively worse over

the years. She had been using a walker for the past five years,

had stopped driving, had some assistance at home, and had

recently broken her arm in a fall. Fedele explained that she did

not apply for social security benefits until August of 2006

because that was when she realized she needed to have physical

and financial help. 

Fedele’s husband testified that between 1992 and September

of 1995, Fedele experienced multiple episodes when she had

paresthesias (tingling and numbness) in both hands, inability to

walk, and inability to stand for long periods. He also testified

that Fedele had to give up sports and exercise completely before

September of 1995, that she could not work as a nurse because she

could not lift, stand, or walk for prolonged periods, and that

she would need to sit every thirty minutes and lie down at

unpredictable times due to fatigue. He agreed with the

evaluations done by Dr. Breen and Dr. Sonnenborn in 2008 and

testified that those evaluations accurately reflected Fedele’s

condition as of September 30, 1995.

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6A five-step process is used to evaluate an application for

social security benefits. 20 C.F.R. § 404.1520(a). The

applicant bears the burden through the first four steps to show

that he is disabled. Freeman v. Barnhart, 274 F.3d 606, 608 (1st

Cir. 2001). At the fifth step, the Commissioner bears the burden

of showing that jobs exist in the national economy that the

applicant can perform. Id.

8

The ALJ issued a decision denying Fedele’s application on

September 2, 2008. The ALJ found that Fedele had multiple

sclerosis before September of 1995, which was a severe

impairment. He concluded, however, that she retained the ability

to do a full range of sedentary work and could do jobs that

existed in significant numbers in the national economy. 

Therefore, the ALJ found that Fedele was not disabled before her

last insured date. The Decision Review Board affirmed the ALJ’s

decision, making it the final decision of the Commissioner.

Discussion

The ALJ denied Fedele’s application at the fifth step of the

sequential analysis used to evaluate social security

applications.6 Fedele contends that the ALJ erred by failing to

consult with a medical advisor pursuant to Social Security Ruling

(“SSR”) 83-20, that the ALJ did not properly evaluate or credit

her husband’s testimony, and that the ALJ improperly failed to

give her treating physicians’ opinions controlling weight. The

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Commissioner disputes Fedele’s contentions and moves to affirm

the decision. 

The court’s review under § 405(g) is “limited to determining

whether the ALJ deployed the proper legal standards and found

facts upon the proper quantum of evidence.” Nguyen v. Chater,

172 F.3d 31, 35 (1st Cir. 1999). Substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Richardson v. Perales, 402 U.S. 389,

401 (1971). The Commissioner makes credibility determinations

and draws inferences from the evidence. Irlanda Ortiz v. Sec’y

of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991). If

the ALJ’s factual findings are supported by substantial evidence

in the record, they are conclusive, even if other evidence would

support a contrary conclusion. Nguyen, 172 F.3d at 35; Tsarelka

v. Sec’y of Health & Human Servs., 842 F.2d 529, 535 (1st Cir.

1988). 

A. SSR 83-20

SSR 83-20 addresses the means of determining an onset date

of disability. Pertinent to this case, SSR 83-20 states:

With slowly progressive impairments, it is sometimes

impossible to obtain medical evidence establishing the

precise date an impairment became disabling. 

Determining the proper onset date is particularly

difficult, when, for example, the alleged onset and the

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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.

1983 WL 31249, at *2. The onset date must be determined based

on the facts of the case “and can never be inconsistent with the

medical evidence of record.” Id. at *3. A determination of how

long a disease may have been severe enough to be disabling

“depends on an informed judgment of the facts in the particular

case . . . [that] must have a legitimate medical basis.” Id.

“At the hearing, the [ALJ] should call on the services of a

medical advisor when onset must be inferred.” Id.

Fedele argues that SSR 83-20 applies here because some of

her medical records for the period between 1992 and September of

1995 are unavailable and because an onset date of her disability

must be inferred. She contends that the ALJ was required to

consult with a medical advisor to determine the onset date of her

disability and that the ALJ’s failure to do so requires reversing

the decision. The Commissioner responds that the medical

evidence here is adequate to determine the onset date of Fedele’s

disability so that a medical advisor was not necessary.

Dr. Indorf’s contemporaneous medical records, along with the

results of various tests performed by other doctors, sufficiently

document the progress of Fedele’s disease during the relevant

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7In addition, the reference to a medical advisor in SSR 83-

20 is not mandatory, so that failure to comply may not require

reversal of the ALJ’s decision. See Eichstadt v. Astrue, 534

F.3d 663, 667 (7th Cir. 2008).

8SSR 96-7 addresses the process for assessing an applicant’s

credibility with respect to her descriptions of her symptoms and

impairments but does not require that the credibility of

witnesses at the administrative hearing be similarly assessed. 

As discussed above, SSR 83-20 does not apply in the context of

this case where medical evidence is available and an inference of

an onset date is not required.

11

period. The medical records show that Fedele was diagnosed with

multiple sclerosis during that period. The records show that her

symptoms were mild or in remission during that time. Dr. Breen’s

records, beginning in December of 1995, document that Fedele was

still doing well at that time and that over the past year and a

half her only complaint was mild and occasional tingling in her

right finger tips. Therefore, the medical records were adequate

to show that Fedele’s symptoms had not become disabling during

that time period and no inference of an onset date was necessary,

which would implicate SSR 83-20.7

B. Husband’s Testimony

Fedele contends that the ALJ did not properly consider her

husband’s testimony, as required by 20 C.F.R. § 404.1529(c)(3),

SSR 83-20, and SSR 96-7.8 She argues, noting that her husband is

a physician, that his testimony provided the missing evidence

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9As the Commissioner points out and Fedele concedes, her

husband was testifying as a family member not in his capacity as

a physician. Therefore, his testimony is not entitled to any

deference based on his training.

10In Page, ALJ Klingebiel, who was also the ALJ in this

case, appeared to entirely ignore the hearing testimony of the

applicant’s mother.

12

about her symptoms during the relevant period between 1992 and

1995.9 The Commissioner asserts that the ALJ adequately

considered Fedele’s husband’s testimony.

Section 404.1529(c)(3) explains that the ALJ will consider

information about an applicant’s symptoms, in addition to the

medical record, to determine the severity of the symptoms. When

a lay witness provides testimony about the applicant’s symptoms,

the ALJ must consider that evidence and must give specific

reasons for disregarding the testimony. Page v. Astrue, 2009 WL

700148, at *4 (D.N.H. March 16, 2009).10 Fedele contends that

the ALJ’s brief discussion of her husband’s testimony disregarded

his important testimony about the level of her impairments prior

to September of 1995 and incorrectly summarized his testimony. 

Fedele’s husband testified that Fedele was disabled by the

effects of multiple sclerosis by September of 1995 and that the

degree of disability indicated in the evaluations done by Dr.

Sonnenborn and Dr. Breen in June and July of 2008 accurately

indicated the level of her disability by September of 1995.

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11Because the medical records document the progress of

Fedele’s disease, her husband is not the only source of

information about her impairments. See Willcockson v. Astrue,

540 F.3d 878, 881 (8th Cir. 2008).

13

Although the ALJ considered Fedele’s husband’s testimony, as

demonstrated by his discussion in his decision, he disregarded

that part of the testimony as to the severity of her impairments

in September of 1995. The ALJ did not give reasons for

disregarding that testimony, which is error.

The error, however, is harmless. Fedele’s husband’s

testimony about the severity of her impairments in September of

1995 is contradicted by the medical record.11 See Grebenick v.

Chater, 121 F.3d 1193, 1199-1200 (8th Cir. 1997). For example,

while her husband testified that she had given up all sports and

exercise by September of 1995, the medical records show that

Fedele continued to play tennis until 1999 and continued to

exercise and participate in yoga after that. In addition, Fedele

was pregnant with their third child in September of 1995 and

reported to her doctors in 1998 that she had no difficulty in

taking care of the children and that she remained active with

them and in the community, which was a demanding schedule. The

medical evidence also shows that her disease had not progressed

to the extent her husband described by September of 1995.

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12In SSR 96-2p, the Social Security Administration defined

the terms “controlling weight,” “medically acceptable,” “not

inconsistent,” and “substantial evidence” and further explained

the analysis for determining what weight to give physician’s

opinions. 1996 WL 374188.

14

C. Treating Physician Opinions

In making a disability determination, the ALJ generally will

give more weight to the opinions of treating physicians, because

of the benefit and perspective provided by a treating

relationship, and will give them controlling weight if they are

well supported by clinical medical evidence and consistent with

other evidence in the record. 20 C.F.R. § 404.1529(d)(2); see

also SSR 96-2p.12 The weight to be given a treating physician’s

opinion is based on a consideration of the length of the

treatment relationship, the nature and extent of the

relationship, whether relevant evidence supports the opinion, the

extent to which the opinion is consistent with the record as a

whole, the area of the physician’s specialty, and other factors

that are brought to the ALJ’s attention. § 404.1529(d)(2)-(6). 

Retrospective opinions, which give an opinion about the

claimant’s condition in the past, may have probative value, but

they are not entitled to controlling weight “when they are not

supported by diagnostic testing.” Robson v. Astrue, 526 F.3d

389, 393 (8th Cir. 2008). An ALJ explains the reasons for the

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weight given to the opinion in the determination. §

404.1529(d)(2). 

In this case, Fedele submitted evaluations completed by her

treating physicians, Dr. Breen and Dr. Sonnenborn, that were

dated in June and July of 2008. Their evaluations found that

Fedele had severe limitations that were consistent with complete

disability. Under each physician’s signature, at the bottom of

each form, a typed statement was added: “This evaluation

reflects Mrs. Fedele’s limitations on 9/30/1995.” Fedele

intended the evaluations to be taken as retrospective opinions of

her limitations in 1995.

The ALJ noted Dr. Breen’s and Dr. Sonnenborn’s opinions and

explained that they were not entitled to controlling weight

because they were not supported by medical evidence and were

inconsistent with other substantial evidence in the record. The

ALJ noted that the opinions were given twelve years after the

time in question. He also found that the opinions were not

supported by contemporaneous medical records or the medical

record as a whole. The ALJ concluded that the opinions were

entitled to only minimal weight.

Fedele faults the ALJ’s findings on the grounds that her

diagnosis of multiple sclerosis, before September of 1995, could

have produced the symptoms of which she complained and that her

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13In her reply, Fedele contends that the Commissioner cannot

now challenge the authenticity of the evaluations, as

retrospective opinions, because the ALJ did not raise or rely on

that issue. Because the ALJ properly evaluated the doctor’s

opinions, the court does not reach the question of whether they

were properly submitted as retrospective opinions.

16

treating physicians’ opinions confirmed that to be the case.13

She contends that because the record does not include treatment

notes from Dr. Breen or Dr. Sonnenborn before September of 1995,

the opinions are not inconsistent with those records. She also

argues that the ALJ erred by not considering the length of her

treatment relationships and the other factors that affect the

weight to be given their opinions.

To the extent Dr. Breen and Dr. Sonnenborn intended their

2008 evaluations to be considered as their opinions of Fedele’s

condition before September 30, 1995, their opinions conflict with

the record evidence, as the ALJ found. Dr. Breen’s 2008

evaluation of Fedele’s condition is contradicted by her December

1995 treatment notes, which reference Fedele’s condition a year

and a half prior to that date, and to the subsequent medical

evidence, which shows that Fedele did not experience disabling

symptoms until after 1999. Dr. Sonnenborn’s 2008 evaluation of

Fedele’s condition before September of 1995 is also contrary to

Dr. Breen’s medical record and to subsequent medical evidence.

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Therefore, the ALJ properly determined that those opinions were

entitled to only minimal weight.

Conclusion

For the foregoing reasons, the plaintiff’s motion to reverse

(document no. 5) is denied. The Commissioner’s motion to affirm

(document no. 7) is granted. The Commissioner’s decision is

affirmed.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

June 23, 2009

cc: Jeffry A. Schapira, Esquire

Gretchen Leah Witt, Esquire

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