Mahoney v. Astrue

Filing 20

MEMORANDUM AND ORDER: Mahoney's motion is granted and the Commissioner's cross-motion is denied. The decision of the ALJ should be reversed and remanded for calculation of benefits. Forwarded for judgment. Ordered by Senior Judge Frederic Block on 6/4/2012. (Chee, Alvin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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TARA MAHONEY,
MEMORANDUM AND ORDER
11-CV-1835 (FB)

Plaintiff,
-againstMICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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Appearances:
For the Plaintiff:
CHARLES E. BINDER, ESQ.
Law Offices of Harry J. Binder and
Charles E. Binder, P.C.
60 East 42nd Street, Suite 520
New York, NY 10165

For the Defendant:
LORETTA E. LYNCH, ESQ.
United States Attorney
ARTHUR SWERDLOFF, ESQ.
Assistant United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, NY 11201

BLOCK, Senior District Judge:
Plaintiff Tara Mahoney seeks review of the portion of the final decision of the
Commissioner of Social Security (“the Commissioner”) that denied her application for
Disability Insurance Benefits (“SSD benefits”) under the Social Security Act.

She alleges

disability due to muscle weakness caused by a congenital neurological disease, Spinal
Muscular Atrophy (SMA). Mahoney and the Commissioner both move for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c).

They agree that the

Commissioner’s determination of her disability onset date was made under an improper legal
standard, but disagree as to the appropriate remedy; Mahoney seeks remand solely for

calculation of benefits, while the Commissioner requests remand for further administrative
proceedings.
I.
Mahoney is a 43-year-old woman who previously worked as a bank teller, from
1988 to 1991, and a medical assistant, from 1991 to 1994. She ceased working in 1994 after
falling down a flight of stairs and fracturing her distal tibia and fibula; she has not worked
since.1 Although she underwent surgery and physical therapy, a congenital muscle disorder
impeded her recovery. Over the next several years, Mahoney continued to seek medical
treatment and complained of pain in her ankle, foot, and knee, as well as increased weakness
in her legs. She had surgery on her left ankle in May 1997 and knee surgery in August 1998,
but continued to report pain and weakness in her lower extremities.

A neurology

consultation in March of 1998 found that Mahoney had weakness in all four limbs –
particularly her legs, where proximal muscle strength was “about 2 out of 5” – but did not
determine the cause beyond noting that it was hereditary; she declined to investigate further.
R 288. Exams over the following years continued to note her congenital muscle weakness.
By the time Suying L. Song, M.D., evaluated Mahoney's muscle strength in November 2007,
she reported needing to lean on others to walk and was unable to stand from a seat without
“tremendous difficulty.” R 169. The exam showed “profound muscle weakness” in the lower

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Mahoney applied for SSD benefits in March 1995 as a result of the fracture and
its complications. She alleged disability from August 15, 1994 – the date of the injury –
through August 1, 1996. In a decision dated October 23, 1996, an ALJ granted her
benefits for that period. Her current claim is based on subsequent impairment caused
by SMA, which was not raised in the prior application.
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extremities. R 170.
In March and April 2008, doctors at the Mayo Clinic evaluated Mahoney and
diagnosed her with SMA. By that point, Mahoney’s weakness in her upper and lower
extremities included intermittent hand paresthesias and occasional numbness and tingling
in her feet due to standing. She reported a “marked decline in her level of function” over the
“past six months to a year,” following “many years of very slow progression.” R 216. She
could only walk while “hanging on to another individual,” R 210, and her legs did “not move
very well voluntarily.” R 213. During a neurological exam conducted at the Mayo Clinic by
Nathan Young, M.D., she had great difficulty walking, even with a walker, and the doctor
recommended use of a power wheelchair. R 213.
Petra Kaufmann, M.D., completed a disability questionnaire based on her
examination of Mahoney on May 16, 2008. She found Mahoney’s motor strength to be 2 out
of 5 in both her lower extremities due to SMA. She opined that Mahoney could stand/walk
for less than two hours a day, but had no limitation on sitting. She added that Mahoney could
“only walk short (household) distances” and was unable to carry anything while standing or
walking due to her poor balance and leg strength. R 226. Dr. Song completed a disability
questionnaire on July 9, 2009. He had seen Mahoney three times since 2007. He agreed that
her “profound weakness of lower extremities” was due to SMA, a genetic disease of lifetime
duration. R 186. Motor strength was 0-1 out of 5 in her right lower extremity, and 1-2 out of
5 in her left lower extremity. Nevertheless, he opined that she could stand/walk for up to six
hours per day, though she required a walker, and had no limitation on sitting.
On May 15, 2008, Mahoney filed claims for SSD benefits and Supplemental

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Security Income benefits, alleging disability beginning January 1, 1997, due to SMA.
Following a hearing on December 3, 2009, an Administrative Law Judge (“ALJ”) concluded
on December 18, 2009, that Mahoney had been disabled since May 15, 2008, but not before that
date. Because she was not disabled on or before December 31, 2001 – the date she was last
insured – Mahoney was not entitled to SSD benefits.2 Applying the five-step disability
analysis,3 the ALJ found that (1) Mahoney had “not engaged in substantial gainful activity”
since applying for benefits, AR at 20; (2) since the alleged onset date of disability – January 1,
1997 – Mahoney has suffered from “spinal muscular atrophy type III (progressive muscle
weakness from degeneration of the lower motor neurons in the brain stem and spinal cord),”
which constitutes a “severe impairment,” AR at 20; (3) prior to May 15, 2008, Mahoney did
not suffer from “an impairment or combination of impairments that met or medically equaled
one of the listed impairments,” AR at 20; and (4) she had the “ability to perform sedentary
work” as of the date she was last insured, AR at 20.
The Appeals Counsel denied Mahoney’s request for review on March 2, 2011,
2

To be eligible for disability insurance benefits, an applicant must establish
disability prior to the date her insured status expired. See 42 U.S.C. §§ 423(a)(1)(A),
423(c)(1); Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). Insured status is based on
work and income history; one can accumulate “quarters of coverage” that last beyond
cessation of employment. See Acierno v. Barnhart, 475 F.3d 77, 78-79 (2d Cir. 2007). In
this case, the ALJ found that Mahoney had coverage to remain insured through
December 31, 2001, and neither party contests that determination.
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Under the Social Security Act’s regulations, disability claims are evaluated in
five steps. In the first four steps, claimant has the burden of showing: (1) that she is not
engaged in “substantial gainful activity”; (2) that she has a “severe impairment”; (3) that
her impairment is on the list of impairments, in which case she is deemed disabled; and
(4) that she cannot perform her previous work. See 20 C.F.R. § 404.1520(b)-(f); Barnhart
v. Thomas, 540 U.S. 20, 24-25 (2003). At the fifth step, the burden shifts to the
Commissioner to show that claimant is capable of performing other jobs existing in
significant numbers in the national economy. See 20 C.F.R. §§ 404.1520(g), 404.1560(c);
Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003).
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and she commenced this action on April 14 of that year.
II.
Both parties acknowledge that the ALJ erred in determining Mahoney’s date of
disability.4 The sole point of dispute is whether the record compels a finding that she was
disabled prior to December 31, 2001 – the date she was last insured – in which case Mahoney
is entitled to benefits and further proceedings on remand are not required.
The Court has the “power to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
Where there are gaps in the administrative record, remand for further proceedings is the
proper course. See Rosa v. Callahan, 168 F.3d 72, 82- 83 (2d Cir. 1999). In contrast, remand for
calculation of benefits is appropriate where “the record provides persuasive proof of disability
and a remand for further evidentiary proceedings would serve no purpose.” Pratts v. Harris,
626 F.2d 225, 235 (2d Cir.1980); see also Rosa 168 F.3d at 83; Balsamo v. Chater, 142 F.3d 75, 82
(2d Cir. 1998). This is such a case; the record is complete and compels a finding of disability.
The parties’ agree that Mahoney suffers from SMA, a form of progressive
muscle weakness caused by degeneration of certain motor neurons in the brain stem and
spinal cord. The ALJ found that this condition met or equaled a listed impairment –
“[m]uscular dystrophy with disorganization of motor function,” 20 C.F.R. Part 404, Subpart

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Mahoney maintains that she has been disabled since January 1, 1997, while the
Commissioner does not concede that Mahoney ever became disabled. The
Commissioner acknowledges, however, that the ALJ failed to adequately weigh the
opinion rendered by one of Mahoney’s treating physicians and failed to follow the
regulations for determining the onset date of a progressive impairment.
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P, App'x 1, § 11.13 – but only as of May 15, 2008. R 20.
The ALJ was correct in determining that, at some point, Mahoney’s congenital,
progressive neuromuscular disease reached the equivalent of the listing for muscular
dystrophy. An impairment is equivalent to a listed impairment when it is “equal in severity
and duration to the criteria” listed. 20 C.F.R. § 404.1526(a); see also Sullivan v. Zebley, 493 U.S.
521, 531 (1990) (“For a claimant to qualify for benefits by showing that his unlisted
impairment . . . is ‘equivalent’ to a listed impairment, he must present medical findings equal
in severity to all the criteria for the one most similar listed impairment.”). The listing
definition of muscular dystrophy requires “[s]ignificant and persistent disorganization of
motor function in two extremities, resulting in sustained disturbance of gross and dexterous
movements, or gait and station.” 20 C.F.R. Part 404, Subpart P, App'x 1, §§ 11.04(b), 11.13.
It references section 11.00(c), which adds:
Persistent disorganization of motor function in the form of paresis or paralysis,
tremor or other involuntary movements, ataxia and sensory disturbances (any
or all of which may be due to cerebral cerebellar, brain stem, spinal cord, or
peripheral nerve dysfunction) . . . frequently provides the sole or partial basis
for decision in cases of neurological impairment. The assessment of impairment
depends on the degree of interference with locomotion and/or interference
with the use of fingers, hands, and arms.
20 C.F.R. Part 404, Subpart P, App'x 1, § 11.00(c). Inability to walk or effectively move one’s
legs due to SMA, a neurological disorder, is equivalent to this listing.
The difficulty lies in assessing when Mahoney’s impairment reached the listing
level of severity. For disabilities of nontraumatic origin, such as SMA, determining the date
of onset “involves consideration of the applicant's allegations, work history, if any, and the
medical and other evidence concerning impairment severity.” SSR 83-20, 1983-1991 Soc. Sec.
Rep. Serv. 49 (1983). The individual’s stated onset date is the “starting point” of the analysis,
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and “should be used if it is consistent with all the evidence available.” Id.; see also Willbanks
v. Sec'y of Health & Human Servs., 847 F.2d 301, 304 (6th Cir.1988); McCall v. Astrue, 2008 WL
5378121, *18 (S.D.N.Y. 2008). Medical evidence serves “as the primary element” in the
determination, but, as SSR 83-20 recognizes,
[w]ith 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 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.
SSR 83-20, 1983-1991 Soc. Sec. Rep. Serv. 49 (1983).
While the medical evidence in this case does not conclusively establish the point
at which Mahoney’s SMA became disabling, her stated onset date – January 1, 1997 – is
consistent with the available evidence and the “history and symptomatology” of her
condition. As Dr. Kaufmann – the associate director of the Columbia Spinal Muscular
Atrophy Center, which is following Mahoney in its research center – explains in a letter dated
May 7, 2009, SMA “is typically associated with severely limited movement,” although patients
display “varying degrees of physical disability.” R 238. In all cases, “weakness gets
progressively worse.” R 238. Moreover, people with SMA require “an extended amount of
recovery time” when injured, and may lose function permanently if immobilized for an
extended period.

R 238.

Thus, Dr. Kaufmann opines, the immobilization following

Mahoney’s 1994 fracture worsened her condition. R 238.
In June 1996, Mahoney informed the orthopedist treating her for the fracture,
Martin J. O’Malley, M.D., that she had “gotten weaker” since the accident – a development

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consistent with the symptomatology of SMA. Mahoney’s care focused on her ankle and knee
problems, however, and the extent of her muscle weakness was not reflected in the medical
records until March 4, 1998, the date of a neurology consultation which evaluated the
weakness in her lower extremities. Mahoney reported that she had suffered from leg
weakness since birth, but it was relatively stable until she spent several months in a
wheelchair following the 1994 injury. She could walk approximately half a block without
assistive devices and had difficulty lifting her legs, standing from a chair, and climbing stairs.
She had to use her arms to elevate her legs onto the examining table. The examining
physician found “weakness of all four limbs, worse in the lower extremities and worse
proximally.” R 288. Specifically, proximal muscle strength in her lower extremities was 2 out
of 5; the hip abductors were slightly stronger at “3- to 3+ out of 5,” as were her hamstrings.
R 288.
Subsequent examinations from 1998 and 1999 consistently support the
conclusion that Mahoney had severe muscle weakness in her lower extremities. Joseph D.
Fulco, M.D., conducted an orthopedic examination on behalf of the Worker’s Compensation
Board on April 24, 1998, and determined that Mahoney could not walk on her heels and toes,
ambulated slowly, and had motor strength of 3 out of 5 in “all areas.” R 281. She reported
being able to walk approximately one and a half blocks before stopping – it is not clear
whether with or without assistance. When she was examined by an orthopaedic surgeon,
Leon Sultan, M.D., in September 1998, he noted that she used a cane and had to “assist her
own legs in placing them on the table due to the fact that she has an underlying congenital
weakness of the muscles of both lower extremities.” R 284. In a supine position, she was

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“unable to do straight leg raising test on either side” due to muscle weakness, “with apparent
significant weakness in quadriceps function.” R 284. It is undisputed that Mahoney’s muscle
weakness was due to SMA, although she was not properly diagnosed until 2008.
In sum, the earliest medical records documenting Mahoney’s muscle weakness
– as opposed to her ankle and knee injuries – date from 1998. By that time, she had significant
weakness in her lower extremities, which she attributed to immobility following the 1994
fracture. Given the progressive nature of SMA, Mahoney’s alleged onset date of January 1,
1997, is supported by the record. In any event, her condition had certainly reached the
equivalent of the “muscular dystrophy” listing by March 4, 1998, the earliest date in the
record when a neurology examination revealed significantly compromised muscle strength
in Mahoney’s lower extremities. Because this was well in advance of her last date insured,
Mahoney is entitled to benefits.
III.
For the foregoing reasons, Mahoney’s motion is granted and the
Commissioner’s cross-motion is denied. The decision of the ALJ should be reversed and
remanded for calculation of benefits.
s/ Judge Frederic Block
_________________________________
FREDERIC BLOCK
Senior United States District Judge

SO ORDERED.

Brooklyn, New York
June 4, 2012

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