Cataneo v. Astrue
Filing
16
MEMORANDUM AND ORDER re 14 . For the reasons set forth in the attached Memorandum and Order, the court denies the parties' cross-motions for judgment on the pleadings and remands this case to the Commissioner for further administrative proceedings consistent with this opinion. The Clerk of the Court is respectfully requested to close this case. Ordered by Judge Kiyo A. Matsumoto on 3/17/2013. (Tolentino, Raymond)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------- X
ALAN CATANEO,
NOT FOR PUBLICATION
Plaintiff,
MEMORANDUM & ORDER
-againstMICHAEL J. ASTRUE,
Commissioner of Social Security
11-CV-2671 (KAM)
Defendant.
---------------------------------- X
MATSUMOTO, United States District Judge:
Pending before the court are the parties’ crossmotions for judgment on the pleadings.
Plaintiff Alan Cataneo
suffers from post-traumatic stress disorder related to his
service in the Vietnam War.
In order to receive Social Security
disability benefits, plaintiff must show that he became disabled
after he retired in October 1990, but before he last met the
insured status requirements for Social Security disability
benefits in December 1995.
In a May 7, 2009 decision, the
Administrative Law Judge found on remand, and the Commissioner
of Social Security determined, that plaintiff was not disabled
by post-traumatic stress disorder or any other condition prior
to January 11, 2005.
For the reasons stated below, the court
denies the parties’ cross-motions for judgment on the pleadings
and remands this case for further administrative proceedings
consistent with this opinion.
PROCEDURAL HISTORY
Plaintiff filed for Social Security disability
insurance benefits (“DIB”) and supplemental security income
(“SSI”) on January 11, 2005. (Tr. at 45-46.)
He alleged
disability since October 17, 1990, due to post-traumatic stress
disorder (“PTSD”), irritable bowel syndrome (“IBS”), high blood
pressure, a benign prostate problem, tinnitus, bilateral hearing
loss, cranial nerve injury, and a back injury. (Id.)
The Social
Security Administration (“SSA”) denied plaintiff’s claim on
March 4, 2005, upon a determination that plaintiff was not
disabled. (Id. at 26.)
On March 28, 2005, plaintiff requested a hearing
before an Administrative Law Judge (“ALJ”) to contest the SSA’s
determination of non-disability. (Id. at 30.)
He appeared pro
se before ALJ Peter F. Crispino on January 30, 2006. (Id. at
204).
Subsequently, on April 12, 2006, ALJ Crispino issued a
“partially favorable” decision, finding that although plaintiff
was disabled as of January 11, 2005, for SSI purposes, he was
not disabled as of December 31, 1995, the date when plaintiff
last met the insured status requirements for DIB. (See id. at
16, 19-20, 29.)
As an initial matter, ALJ Crispino determined that
plaintiff had not engaged in significant gainful employment
since his alleged disability onset date (October 17, 1990) and
2
that plaintiff’s PTSD constituted a “severe impairment” since
his alleged disability onset date; however, ALJ Crispino found
that because the impairment was not among or medically
equivalent to the impairments listed in 20 C.F.R. Part 404,
Subpart B, Appendix 1, plaintiff was not per se disabled. (Id.
at 16-17.)
With respect to the residual functional capacity
(“RFC”) determination, ALJ Crispino found that prior to January
11, 2005, plaintiff had the RFC to perform his past relevant
work as a firefighter and fire marshal. (Id. at 18.)
ALJ
Crispino also found, however, that because plaintiff’s
nonexertional limitations (i.e., PTSD) compromised his ability
to perform work at all exertional levels as of January 11, 2005,
plaintiff was disabled as of that date. (Id. at 19.)
Plaintiff requested review of ALJ Crispino’s decision
from the Appeals Council. (Id. at 4.)
When the Appeals Council
denied review on December 19, 2007, ALJ Crispino’s decision
became the final decision of the Commissioner of Social Security
(“Commissioner”). (Id.)
Plaintiff subsequently filed suit in
the United States District Court for the Eastern District of New
York (see Cataneo v. Astrue, No. 08-CV-0758 (CBA)), and on
September 26, 2008, the parties entered into a Stipulation and
Order, whereby the Commissioner’s April 12, 2006 decision was
reversed, and plaintiff’s claim was remanded for further
administrative proceedings. (Id. at 262-64.)
3
Pursuant to the September 26, 2008 Stipulation and
Order, the Appeals Council vacated the Commissioner’s decision
and remanded the case for a new hearing before an ALJ. (Id. at
260.)
Specifically, the Appeals Council held that, in rendering
his decision, ALJ Crispino had failed to conduct a “function-byfunction” assessment of plaintiff’s mental condition and also
failed to properly consider the lay testimony of plaintiff’s
wife and Robert Mauro, plaintiff’s former supervisor. (Id.)
The
Appeals Council ordered the ALJ to correct these errors on
remand and determine the extent of plaintiff’s mental impairment
between plaintiff’s alleged disability onset date (October 17,
1990) and the last date plaintiff qualified for DIB (December
31, 1995) (the “Relevant Period”). (Id. at 261.)
Plaintiff appeared before ALJ David Ettinger on March
17, 2009, represented by plaintiff’s current counsel of record.
(Id. at 596.)
During the hearing, ALJ Ettinger received
testimony from plaintiff, Dr. Carlos Jusino, a medical expert,
and Melissa Fass-Karlin, a vocational expert. (Id. at 597, 623,
630.)
On May 7, 2009, ALJ Ettinger issued an “unfavorable”
decision, holding that plaintiff was not disabled during the
Relevant Period because he retained the RFC to perform certain
jobs prevalent in the national economy. (Id. at 243, 255-56.)
In his decision, ALJ Ettinger reaffirmed the
Commissioner’s previous finding that although plaintiff had a
4
severe impairment due to PTSD during the Relevant Period, this
impairment did not meet or medically equal one of the listed
impairments in 20 C.F.R. Part 404, Subpart B, Appendix 1. (Id.
at 249; see 20 C.F.R. § 404.1525.)
The latter determination was
based on the fact that plaintiff did not have sufficient
“marked” 1 limitations to satisfy the statutory criteria. (Tr. at
250.)
With respect to plaintiff’s RFC during the Relevant
Period, which is based on the functional limitations imposed by
plaintiff’s PTSD during that time, ALJ Ettinger first considered
the available medical testimony.
In doing so, ALJ Ettinger
rejected the expert testimony of Dr. Jusino, who testified that
he could not diagnose plaintiff with PTSD during the Relevant
Period due to plaintiff’s drug and alcohol use and plaintiff’s
failure to seek professional treatment until 2002. (Id. at 252,
624.)
Instead, based on the opinion of Dr. Herbert Stein
(plaintiff’s treating physician), ALJ Ettinger found that
plaintiff had suffered from PTSD since October 17, 1990. (Id. at
252.)
Nevertheless, ALJ Ettinger determined that Dr. Stein’s
medical opinion did not state that plaintiff was unable to
perform other, non-firefighting jobs during the Relevant Period
1
“A ‘marked’ impairment ‘may arise when several activities or functions are
impaired, or even when only one is impaired, as long as the degree of
limitation is such as to interfere seriously with the individual’s ability
to function independently, appropriately, effectively, and on a sustained
basis.’” McAninch v. Astrue, No. 09–CV–0969, 2011 WL 4744411, at *8 n.8
(W.D.N.Y. Oct. 6, 2011).
5
and that Dr. Stein found that plaintiff’s PTSD symptoms were
exacerbated by the September 11, 2001 attacks, suggesting that
plaintiff’s PTSD symptoms were not sufficiently limiting during
the Relevant Period to render him disabled. (Id. at 254.)
In addition, ALJ Ettinger considered and ultimately
discredited the lay testimony of plaintiff, plaintiff’s wife,
and plaintiff’s former supervisor with respect to the
limitations imposed by plaintiff’s PTSD during the Relevant
Period.
ALJ Ettinger concluded that plaintiff and his
corroborating witnesses did not “intentionally ma[k]e any
intentionally inaccurate statements.” (Id. at 253.)
Nevertheless, ALJ Ettinger found that each of the witnesses
lacked credibility because: (i) all of plaintiff’s witnesses
were motivated to support plaintiff’s claim; (ii) plaintiff’s
twenty-two year work history and eligibility for a potential
promotion were inconsistent with plaintiff’s purported “extreme
behavioral problems”; and (iii) most significantly, plaintiff
did not seek professional treatment for his impairment until
2002. (Id. at 253-54.)
ALJ Ettinger also noted that, had
plaintiff’s witnesses been “fully credited . . . a far more
restrictive [RFC]” would result. (Id. at 252.)
Based on the foregoing, ALJ Ettinger determined that
plaintiff did not have the RFC to perform his past relevant work
as a firefighter or fire marshal after October 1990 but found,
6
as Ms. Fass-Karlin testified, that there were other jobs
prevalent in the national economy that could be performed by an
individual with plaintiff’s RFC. (Id. at 254-55.)
Consequently,
ALJ Ettinger ultimately concluded that plaintiff was not
disabled during the Relevant Period. (Id. at 256.)
Plaintiff appealed ALJ Ettinger’s decision to the
Appeals Council on March 19, 2010. (Id. at 224.)
He also
submitted new evidence to the Appeals Council, including a
January 20, 2010 letter from his treating physician, Dr. Stein,
and his therapist, Barbara Simmons. (Id. at 228.)
Subsequently,
on April 1, 2011, the Appeals Council issued a letter indicating
that it had “no reason under [its] rules to assume jurisdiction”
over plaintiff’s case. (Id. at 221.)
ALJ Ettinger’s decision
thus became the final decision of the Commissioner. (Id.)
Plaintiff commenced the instant action on June 3, 2011
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). (ECF No. 1,
Complaint dated 6/2/2011 (“Compl.”).)
The Commissioner moved
for judgment on the pleadings on January 23, 2012, and plaintiff
cross-moved for the same on March 6, 2012.
In the alternative,
plaintiff requested that this case be remanded to the
Commissioner for further administrative proceedings to establish
the correct onset date of plaintiff’s disability.
7
FACTS
I.
Personal Life
Plaintiff was born on Staten Island on August 3, 1945.
(Tr. at 34, 346.)
He describes an idyllic childhood; he had
friends and enjoyed life. (Id. at 346.)
Plaintiff graduated
from high school and attended two years of college under the GI
Bill, receiving an associate’s degree from Staten Island College
in approximately 1983. (Id. at 53, 208, 347.)
Plaintiff married his first wife immediately after his
return from the Vietnam War, and they divorced approximately
two-and-a-half years later. (Id. at 345.)
In 1992, plaintiff
married Laurie Cataneo, and they presently reside together with
their two children, aged approximately 13 and 17 years. (Id. at
32, 346, 616.)
Plaintiff is a Vietnam War veteran. (Id. at 32, 68.)
He served in the United States Navy as a diesel mechanic from
November 3, 1965 to November 2, 1967. (Id. at 68, 347).
During
his tour of duty, plaintiff performed river surveillance and
interdiction. (Id. at 603.)
He was often part of a team that
transported Navy Seals and Marine Reconnaissance teams to
beachfronts, and stayed offshore to await their return. (Id. at
347.)
His team was frequently fired upon by enemy snipers, and
was occasionally helicoptered out due to heavy enemy fire.
8
(Id.)
Plaintiff was honorably discharged following his two
years of active service. (Id. at 603-04.)
Plaintiff does not have any lifelong friends. (Id. at
607.)
He does not attend social events, restaurants, or
sporting events, and mostly stays home. (Id.)
He saw 2001: A
Space Odyssey in a movie theater shortly after his return from
the Vietnam War, but left the theater early because he could not
cope with the darkness and having other people around him. (Id.
at 607-08.)
Although plaintiff has a history of cocaine and
alcohol abuse, it appears that he has abstained for many years.
(Id. at 346 (plaintiff stated in 2003 that he had not used
alcohol or cocaine for ten years); But see id. at 611 (plaintiff
testified in 2009 that he had not consumed alcohol for five or
six years, and that he had not used drugs for ten years); id. at
309 (plaintiff indicated in 2004 that he had consumed alcohol
within the past twelve months).)
Plaintiff has a driver’s
license and occasionally drives. (Id. at 209.)
He is capable of
taking public transportation, but dislikes the experience due to
the crowding, noise, and smell of diesel fumes, which remind him
of the Vietnam War. (Id. at 608, 612.)
He does not take the
subway unless his wife accompanies him. (Id. at 615.)
9
II.
Work History
After returning to the United States from the Vietnam
War, plaintiff worked in a supermarket for a short period of
time before joining the local police department, where his
tenure lasted only ten months. (Tr. at 604.)
In November 1968,
plaintiff joined the New York City Fire Department, where he
remained employed until October 17, 1990, plaintiff’s alleged
disability onset date. (Id. at 46, 208, 604.)
Plaintiff
indicates that he was never late to work during his twenty-two
years of service. (Id. at 46, 212, 617.)
In 1984, plaintiff was promoted from firefighter to
fire marshal. (Id. at 46, 605.)
As a fire marshal, plaintiff
was tasked with inspecting suspected arson scenes; this required
him to be in regular contact with burned bodies, which reminded
him of images from the Vietnam War. (Id. at 72, 605-06.)
Plaintiff testified that he was able to perform this task only
because his supervisor, Robert Mauro, protected him from dealing
with the public and allowed him to avoid particularly gruesome
scenes. (Id. at 606.)
Although plaintiff worked alongside his colleagues for
many years, he did not socialize or develop any long-term
friendships. (Id. at 606-07.)
In fact, plaintiff routinely had
unprovoked verbal and physical confrontations with his coworkers
during his tenure as a fire marshal. (Id. at 606.)
10
In approximately 1978, plaintiff was suspended for two
weeks due to a strike-related incident. (Id. at 618.)
Plaintiff
committed two other infractions during his tenure with the Fire
Department, but was not officially reprimanded for them.
First,
the Fire Department learned that plaintiff had been arrested for
“chasing some people with a gun,” but did not terminate him,
allegedly because of plaintiff’s family connections. (Id. at
617.)
Second, plaintiff was involved in several fights, but was
not reprimanded, allegedly because everyone in the firehouse,
including officers, had been drinking alcohol at the time of the
fights. (Id. at 618.)
Plaintiff did not provide specific dates
for either of these incidents. (See id. at 617-18.)
Robert Mauro, plaintiff’s supervisor from 1984 until
1990, submitted a letter to the SSA stating that plaintiff was
often “angry, agitated, irritable, exasperated and violent for
no apparent reason.” (Id. at 31.)
Mr. Mauro indicated that
plaintiff could not concentrate, follow simple directions, or
deal with stressful situations, and that plaintiff often
“suffer[ed] from what appeared to be panic attacks.” (Id.)
Mr.
Mauro also stated that because plaintiff confided that “he was
having intrusive thoughts involving his experience in Viet Nam,”
Mr. Mauro made exceptions for plaintiff’s behavior. (Id.)
Plaintiff testified that he retired from the Fire
Department in October 1990 because he had severe anxiety, panic
11
attacks, and flashbacks, and because he feared jeopardizing the
safety of his colleagues. (Id. at 72, 606.)
At the time of his
retirement, plaintiff was thirty-third on a list of individuals
in line for promotion to Supervising Fire Marshal. (Id. at 72.)
That promotion would have entailed a substantial raise in
salary. (Id.)
After his retirement from the Fire Department in
October 1990, plaintiff worked for one or two months as a Park
Ranger for the United States Department of the Interior. (Id. at
38, 604.)
He testified that certain interactions with the
public caused him to overreact, and that he left the job before
“something bad” happened. (Id. at 41, 621.)
For approximately
two years thereafter, plaintiff informally and intermittently
worked for a carpenter, mostly cleaning up debris. (Id. at 20911.)
He earned approximately $200 per year for performing this
service. (Id.) 2
III. PTSD-RELATED HISTORY AND MEDICAL EVIDENCE
A. Plaintiff’s Testimony
Plaintiff testified that his current PTSD symptoms
include feeling hopeless, thinking that he is not going to live,
severe nightmares, panic attacks, and difficulty sleeping. (Id.
at 608-10.)
2
The Commissioner found that the carpentry job was “clearly not substantial
gainful activity,” and that the Park Ranger position “constituted an
unsuccessful work attempt.” (Tr. at 211, 249.)
12
Plaintiff often dreams about being ambushed because he
“got ambushed a lot” during the Vietnam War. (Id. at 137, 609.)
In particular, he has a recurring dream about being unable to
find his gun. (Id. at 609.)
Plaintiff’s nightmares, which he
characterizes as sleeping “panic attacks,” are so severe that he
takes both Benadryl and Ambien to fall asleep. (Id.)
Nevertheless, he often wakes up in the middle of the night, not
knowing where he is, and feeling like he “need[s] to have oxygen
or something there.” (Id.)
Plaintiff currently suffers from panic attacks “almost
everyday,” which he says greatly disturb “the normal flow of a
regular day.” (Id. at 212.)
Although group therapy has helped
plaintiff “know that [he is] not going to die,” he maintains
that “when you’re feeling it you still feel it.” 3 (Id. at 610.)
In addition, for the past twenty-five to thirty years,
plaintiff has woken up at night to “check the doors, check the
windows, sit up for a little while, look around outside, [and]
make sure the blinds are all closed . . . .” (Id. at 614.)
He
likens this habit to “standing guard duty” and maintaining a
perimeter to “know that [I am] safe in there.” (Id.)
Plaintiff
also sets an alarm for every two hours to make sure that he
3
Plaintiff also noted that he suffered panic attacks almost daily between
1987 and 1990, and that he attempted to cope with the panic attacks at that
time by drinking alcohol and using drugs. (Tr. at 610-11.)
13
wakes up because he “would [otherwise] feel that the house
wasn’t secure.” (Id. at 613-14.)
Finally, plaintiff indicated that his symptoms
worsened after the September 11, 2001 attacks because “it
brought back what it feels like to lose friends and it brought
back some guilt that [he] was still alive.” (Id. at 611.)
B. Laurie Cataneo’s 2005 and 2010 Letters
On January 5, 2005, plaintiff’s wife, Laurie Cataneo,
submitted a letter to the SSA regarding her husband’s condition.
(Tr. at 32-33.)
Mrs. Cataneo indicated that she has known
plaintiff since 1984, (id.), and further explained plaintiff
“has no friends and is very isolated socially,” spends his
nights and days checking to make sure the house is secure, is
“always looking thru [sic] the blinds out the window,” and
suffers from panic attacks regularly, which usually last
approximately twenty minutes, (id. at 32).
Following ALJ Ettinger’s May 7, 2009 decision, Mrs.
Cataneo submitted another letter on February 5, 2010, regarding
her recollection of plaintiff’s condition during the Relevant
Period. (Id. at 236.)
Mrs. Cataneo recounted that in
approximately 1996, 4 her first child’s birthday and baptism had
to be carefully structured around her husband’s condition
because, even with a group of twenty to twenty-five people,
4
(See Tr. at 32, indicating that eldest child was 10 years old in 2005,
thereby placing the birthday party in the 1995-96 timeframe.)
14
there was a danger that plaintiff would “act out.” (Id. at 236.)
Notwithstanding these preparations, however, plaintiff was
unable to attend the events. (Id.)
Mrs. Cataneo further
recalled that plaintiff was unable to attend her greatgrandmother-in-law’s wake and funeral in 1994 and “would not
consider” a wake and funeral for his own parents. (Id.)
Finally, Mrs. Cataneo indicated that plaintiff’s symptoms
worsened after the first World Trade Center terrorist attack in
1993. (Id.)
C. Medical Evidence
Plaintiff was prescribed Valium in 1977 by the Staten
Island Medical Group, also known as the Health Insurance Plan of
Greater New York (“SIMG” or “HIP”). (Id. at 179, 214.)
Medical
records reflect, however, that plaintiff “cancelled” this
prescription on June 24, 1977, and plaintiff indicated that he
stopped taking Valium in approximately 1978. (Id. at 179, 215.)
In approximately 1981, plaintiff was seen by a
psychiatrist in Manhattan for approximately six to eight months.
(Id. at 216, 612.)
According to Dr. Stein, plaintiff’s current
treating physician, plaintiff never shared his Vietnam War
experiences with this psychiatrist. (Id. at 163.)
Plaintiff was
also under the care of a psychologist while attending school in
approximately 1981–83; plaintiff indicates that this
15
psychologist attributed his panic attacks to the Vietnam War.
(Id. at 612.)
Plaintiff next sought treatment for his mental health
on May 30, 2002, at which time Dr. Deba Banerji of SIMG issued a
prescription for Lorazepam to treat plaintiff’s anxiety. (Id. at
75.)
On February 13, 2003, plaintiff entered the emergency room
of the Veterans Affairs New York Harbor Healthcare System’s
Brooklyn location (“VANYHHS”), complaining of nightmares,
extreme anxiety, and chest tightness. (Id. at 350-51.)
Plaintiff indicated that the symptoms were connected with the
September 11, 2001 attacks. (Id.)
The attending psychiatrist,
Dr. Sucmyun Moon, prescribed Prozac and Desyrel, and referred
plaintiff to the VANYHHS outpatient psychiatric clinic. (Id. at
351.)
Shortly thereafter, on February 27, 2003, plaintiff
was admitted to the psychiatric clinic. (Id. at 345.)
admitting diagnosis was PTSD. (Id.)
The
Plaintiff provided the
psychiatric clinic with a history of symptoms “varying in
intensity and frequency since returning from Vietnam.” (Id.)
Plaintiff also indicated that he knew and worked with many of
the firemen that died on September 11. (Id. at 347.)
Barbara
Simmons, a Clinical Specialist in Adult Mental Health, assigned
plaintiff to a Vietnam War Veteran and Fireman counseling group
16
and referred plaintiff to Dr. Herbert Stein for an evaluation.
(Id. at 164, 347.)
On March 10, 2003, plaintiff visited Dr. Stein, a
board certified psychiatrist and director of the PTSD program at
the VANYHHS, for an initial consultation. (Id. at 164, 339.)
Plaintiff reported having nightmares about “being shot (was
ambushed in reality and felt unprepared), about being unable to
find his gun or bullets or his helmet . . . and about something
bad happening to his family.” (Id. at 339.)
Plaintiff also
indicated that when “he returned from [Vietnam] he was angry,
and ‘like a stick floating down a creek,’ doing drugs and
drinking, smoking pot.” (Id.)
In his progress notes, Dr. Stein summarized that
plaintiff was a 57-year-old war veteran with a “long history of
nightmares, social isolation, depression, [and] anxiety.” 5 (Id.
at 341.)
5
Dr. Stein and Ms. Simmons agreed on a treatment plan
Dr. Stein used the DSM-IV multi-axial scale to diagnose plaintiff. See
Hernandez v. Astrue, 814 F. Supp. 2d 168, 174 & n.7 (E.D.N.Y. 2011)
(describing diagnostic scale). Under Axis I, which pertains to clinical
disorders, Dr. Stein diagnosed chronic PTSD, an anxiety disorder. (Tr. at
341.) Dr. Stein found no relevant impairments under Axis II (personality
disorders and traits). (Id.) Under Axis III (current medical conditions),
Dr. Stein referenced plaintiff’s Bell’s Palsy, IBS, and “pain behind his
ear.” (Id. at 340, 342.) Under Axis IV (current psychosocial stressors),
Dr. Stein diagnosed IBS, the death of plaintiff’s mother, and “sequellae
[sic] 9/11.” (Id. at 340.) Finally, Dr. Stein diagnosed a Global Assessment
of Functioning (“GAF”) score of 45 on Axis V. (Id. at 342; see Stewart v.
Astrue, No. 10–CV–3032, 2012 WL 314867, at *2 n.1 (E.D.N.Y. Feb. 1, 2012)
(indicating that GAF scores range from 1 to 100, and that “[t]he American
Psychiatric Association classifies a person having a GAF score of 41–50 as
having serious symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) OR any serious impairment in social,
occupational, or school functioning (e.g., few friends, conflicts with peers
or co-workers)” (internal quotation marks omitted)).)
17
for plaintiff on March 20, 2003. (Id. at 337.)
They prescribed
a mixture of medication and counseling to treat his symptoms.
(Id.)
Plaintiff continued his treatment at the VANYHHS
through at least February 2009. (Id. at 580.)
During that time,
plaintiff participated in a number of counseling sessions with
other firefighters and Vietnam War veterans. (See, e.g., id. at
300, 332, 334.)
Plaintiff’s symptoms continued to fluctuate in
severity, and Dr. Stein administered varying doses of Klonopin,
Trazodone, and Ambien to help plaintiff with his anxiety and
sleep issues. (Id. at 320, 324, 330.)
Plaintiff’s symptoms were
particularly exacerbated in April 2004 by news coverage of the
Iraq War. (Id. at 305, 307.)
In July 2004, after more than a
year of treatment, plaintiff was still having panic attacks once
per day and continued his “obsession ritual[]” of waking up
constantly to check his doors and windows. (Id. at 376.)
D. Dr. Stein’s 2004, 2006, and 2010 Letters
On December 9, 2004, Dr. Stein issued a letter,
addressed “To Whom It May Concern,” detailing plaintiff’s
condition at that time. (Id. at 163-64.)
Ms. Simmons. (Id. at 164.)
It was co-signed by
Dr. Stein indicated that plaintiff
actively isolates himself from his family “to avoid problems,”
and that plaintiff’s “first marriage ended due to the behaviors
18
he demonstrated in order to cope with what he was experiencing.”
(Id. at 163.)
Dr. Stein further opined that being a firefighter
allowed plaintiff “to hide and socially distance” himself from
his family. (Id.)
Plaintiff was able to function as a
firefighter despite his condition because of “the support of
comrades who would cover for him when he was having
difficulties.” (Id.)
During plaintiff’s last few years with the
Fire Department, however, when plaintiff worked as a fire
marshal, “every time he had to go on an assignment he [sic] was
like being back in Vietnam.” (Id.)
Eventually, plaintiff’s
“symptoms became so overwhelming” that he retired for fear of
being labeled “crazy.” (Id.)
Dr. Stein notes that, at that
time, plaintiff could have sought and potentially obtained a
medical retirement, which would have made plaintiff “eligible
for social security disability benefits.” (Id.)
Additionally, Dr. Stein found that plaintiff
experienced an “exacerbation of symptoms” following the
September 11 attacks. (Id. at 164.)
By approximately 2002,
plaintiff “learned that it was acceptable to talk about how the
experience was affecting him,” and he consequently entered the
PTSD treatment program at the VANYHHS. (Id.)
Finally, Dr. Stein
noted that plaintiff “ha[d] been advised to put in a claim for
social security disability benefits even though his retirement
19
was premature and not based on his mental state at the time.”
(Id.)
Dr. Stein issued a second letter, this time addressed
to the SSA, on January 20, 2006. (Id. at 162.)
signed by Ms. Simmons. (Id.)
It was also co-
In the 2006 letter, Dr. Stein
indicated that it was the opinion of plaintiff’s treatment team
that plaintiff had been suffering from PTSD “since his Vietnam
combat experiences in 1966.” (Id.)
Furthermore, Dr. Stein
opined that plaintiff was initially able to conceal his
emotional trauma because the Fire Department “mimicked a
paramilitary organization,” and that plaintiff’s early
retirement was directly correlated with the “breakdown of his
defenses” that he had previously “used to avoid dealing with
emotional pain.” (Id.)
On January 20, 2010, Dr. Stein issued another letter
directly responding to ALJ Ettinger’s May 2009 decision. 6 (Id. at
228-29.)
The January 2010 letter offered Dr. Stein’s
retrospective opinion on “the severity of [plaintiff’s]
psychiatric impairment as of December 1995.” (Id. at 228.)
This
opinion was based on Dr. Stein’s post-2002 clinical treatment of
plaintiff and Dr. Stein’s general professional knowledge and
experience. (Id.)
6
In it, Dr. Stein opined, to a “reasonable
As discussed above, ALJ Ettinger’s decision held that, during the Relevant
Period, plaintiff retained the RFC to perform certain types of jobs
prevalent in the national economy and was therefore not disabled at that
time.
20
degree of medical certainty,” that plaintiff’s PTSD was as
severe in December 1995 as it was in March 2002, when plaintiff
first presented himself for treatment at the VANYHHS. (Id. at
229.)
Indeed, Dr. Stein stated that plaintiff’s “condition was
likely worse in 1995 in light of the absence of treatment.”
(Id.)
Dr. Stein’s determination was based on the fact that:
(i) plaintiff’s drinking and drug use “reflect[] the misguided
belief that one can manage their symptoms on their own,”
especially because the effects of drugs and alcohol are
particularly attractive to individuals with chronic mood
disorders; (ii) plaintiff’s departure from the Fire Department
was due in part to a “deep seated fear that his symptoms were
spiraling out of control”; (iii) plaintiff’s intermittent use of
Valium had little effect on his symptoms because he never opened
up about his Vietnam experiences; (iv) plaintiff’s minimal
response to many years of active treatment strongly supports the
inference that his condition was “as severe in 1995 as it is
now”; (v) although plaintiff’s symptoms were exacerbated by the
September 11 attacks, his underlying condition, and its overall
severity, is related to his Vietnam War experiences; and (vi)
“the course of [plaintiff’s] disorder is not unusual based on
our experiences.” (Id.)
21
Dr. Stein attached a completed “Questionnaire for
Psychiatric Disorders” to the 2010 letter. (Id. at 230-34.)
The
completed questionnaire indicates that plaintiff has “marked”
limitations in the categories of “maintaining social
functioning” and “[d]eficiencies in concentration, persistence
or pace resulting in failure to complete tasks in a timely
manner,” and that plaintiff has “[c]ontinuously experienced”
episodes of “decompensation.” (Id. at 232-33.)
The
questionnaire does not provide dates for when these limitations
reached their current level of severity. 7
DISCUSSION
I.
Standard of Review
A district court reviewing the Commissioner’s decision
to deny disability benefits must “determine whether the correct
legal standards were applied and whether substantial evidence
supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d
Cir. 2004) (citing Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.
2002)).
“Substantial evidence is ‘more than a mere scintilla.
It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Halloran v.
Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)).
7
The questionnaire also appears to indicate that plaintiff’s first contact
with Dr. Stein was in March 1992 (Tr. at 230), rather than March 2003 (id.
at 339), but this is most likely an error as this contact date appears
nowhere else in the record. Nor do the parties discuss the March 1992 date.
22
After reviewing the Commissioner’s determination, the
district court may “enter, upon the pleadings and transcript of
the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner . . . , with or without remanding
the cause for a rehearing.” Butts, 388 F.3d at 384 (quoting 42
U.S.C. § 405(g)).
“Remand for further development of the
evidence is appropriate where there are gaps in the
administrative record or the ALJ has applied an improper legal
standard.” Kirkland v. Astrue, No. 06–CV–4861, 2008 WL 267429,
at *8 (E.D.N.Y. Jan. 29, 2008) (citing cases).
Moreover,
“[w]here there is a reasonable basis for doubt whether the ALJ
applied correct legal principles,” even if the Commissioner's
decision is arguably supported by substantial evidence, the
court cannot affirm the Commissioner’s decision unless
application of the correct legal standards could only lead to
the Commissioner’s holding. Johnson v. Bowen, 817 F.2d 983, 986
(2d Cir. 1987).
II. Determining Disability Through the Five-Step Evaluation
In order to receive disability benefits, a claimant
must become disabled while he still meets the insured status
requirements of the Social Security Act and the regulations
promulgated by the SSA. Arnone v. Bowen, 882 F.2d 34, 37-38 (2d
Cir. 1989).
“Disability” is defined as the “inability to engage
in any substantial gainful activity by reason of any medically
23
determinable physical or mental impairment . . . which has
lasted or can be expected to last for a continuous period of not
less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
The Commissioner uses a “five-step sequential
evaluation” to determine whether a claimant is disabled. 20
C.F.R. § 404.1520; see Perez v. Chater, 77 F.3d 41, 46 (2d Cir.
1996) (describing five-step process).
If the Commissioner can
determine that a claimant is disabled or not disabled at any
step of the five-step sequence, the evaluation stops at that
step and the Commissioner issues his decision; if a
determination cannot be made at steps 1 through 4, the sequence
continues to the next step. 20 C.F.R. § 404.1520(a)(4).
At step 1, the Commissioner determines whether the
claimant is currently engaged in substantial gainful employment.
20 C.F.R. § 404.1520(a)(4)(i).
If the claimant is engaged in
substantial gainful employment, he is not disabled “regardless
of [his] medical condition.” 20 C.F.R. § 404.1520(b).
Otherwise, the Commissioner moves to step 2, and determines
whether the claimant has a “severe medically determinable
physical or mental impairment.” 20 C.F.R. § 404.1520(a)(4)(ii).
When the claimant purports to have a mental impairment, the
Commissioner must apply a “special technique” to determine the
severity of that mental impairment (i.e., the technique must be
applied within the context of step 2). 20 C.F.R. § 404.1520a;
24
Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (describing
analysis). 8
If the claimant’s impairment is in fact medically
severe, the sequence continues to step 3, in which the
Commissioner compares the claimant’s impairment to a listing of
impairments found in 20 C.F.R. Part 404, Subpart P, Appendix I.
20 C.F.R. § 404.1520(a)(4)(iii).
If the claimant’s impairment
“meets or equals” one of the listed impairments, he is per se
disabled irrespective of his “age, education, and work
experience,” and the sequential evaluation stops. 20 C.F.R.
§ 404.1520(d).
If the claimant is not per se disabled under step 3,
the Commissioner must determine the claimant’s residual
functional capacity (“RFC”) before continuing to step 4. 20
C.F.R. § 404.1520(e).
RFC is defined as the most the claimant
can do in a work setting despite the limitations imposed by his
impairment. 20 C.F.R. 404.1545(a)(1).
8
In determining the
First, the Commissioner determines whether the claimant has a “medically
determinable mental impairment.” 20 C.F.R. § 404.1520a(b)(1). Second, the
Commissioner must rate the degree of functional limitation caused by this
impairment in four broad “functional areas”: (i) activities of daily living;
(ii) social functioning; (iii) concentration, persistence, or pace; and (iv)
episodes of decompensation. 20 C.F.R. § 404.1520a(c)(3). For the first
three areas, the Commissioner uses a five-point scale (“[n]one, mild,
moderate, marked, and extreme”); for the fourth area, the Commissioner uses
a four-point scale (“[n]one, one or two, three, four or more”). 20 C.F.R.
§ 404.1520a(c)(4). Generally, a finding of “mild” limitation or less in the
first three areas, combined with a finding of “none” in the fourth area,
means that the claimant does not have a medically severe mental impairment.
20 C.F.R. § 404.1520a(d). If the Commissioner determines that the mental
impairment is severe, the sequential evaluation moves to step three, as
described infra.
25
claimant’s RFC, the Commissioner should consider “all of the
relevant medical evidence,” as well as descriptions and
observations by non-medical sources, such as the claimant’s
friends and family. 20 C.F.R. 404.1545(a)(3).
To the extent that the Commissioner’s RFC
determination relies on plaintiff’s own statements with respect
to his symptoms, or statements from other, non-medical
witnesses, the Commissioner is obliged to follow a two-step
process for determining the credibility of those statements. 20
C.F.R. § 416.929(c)(3); SSR 96-7p, 1996 SSR LEXIS 4.
First,
“the
adjudicator
must
consider
whether there is an underlying medically
determinable
physical
or
medical
impairment(s) . . . that could reasonably be
expected to produce the individual’s . . .
symptoms . . . .”
Second, “the adjudicator
must evaluate the intensity, persistence,
and limiting effects of the individual’s
symptoms to determine the extent to which
the symptoms limit the individual's ability
to do basic work activities . . . .”
Morrison v. Astrue, No. 08-CV-2048, 2010 U.S. Dist. LEXIS
115190, at *11 (E.D.N.Y. Oct. 27, 2010) (alterations in
original) (footnote and citation omitted). 9
9
Moreover, the Commissioner’s determination that a witness’s description of a
claimant’s symptoms is not credible: (i) must be set forth with sufficient
specificity to permit a reviewing court to decide whether that determination
was supported by substantial evidence, Williams ex rel. Williams v. Bowen,
859 F.2d 255, 260-61 (2d Cir. 1988); and (ii) should explain the weight
afforded to that statement in the Commissioner’s ultimate decision, Snyder
v. Barnhart, 323 F. Supp. 2d 542, 547 (S.D.N.Y. 2004).
26
After making his RFC determination, the Commissioner
will proceed to step 4, at which point the Commissioner must
determine whether the claimant’s RFC is sufficient to perform
his “past relevant work,” which is defined as substantial
gainful activity that the claimant has done within the past
fifteen years. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f),
404.1560(b)(1).
If the claimant can perform his past relevant
work, he is not disabled. 20 C.F.R. § 404.1520(f).
Otherwise,
the Commissioner must determine at step 5 whether the claimant
can make “an adjustment to other work.” 20 C.F.R.
§§ 404.1520(a)(4)(v).
In making his determination under step 5, the
Commissioner must use his prior RFC finding in conjunction with
the claimant’s “vocational factors” (i.e., age, education, and
work experience) to determine whether the claimant can
transition to another job that is prevalent in the national
economy. 20 C.F.R. §§ 404.1520(g)(1), 404.1560(c)(1).
The
Commissioner has a limited burden under step 5 to provide
“evidence that demonstrates that other work exists in
significant numbers in the national economy that” the claimant
can do in light of his RFC and vocational factors. 20 C.F.R.
§ 404.1560(c)(2).
If the claimant cannot transition to another
job prevalent in the national economy, the Commissioner must
find the claimant disabled. See 20 C.F.R. § 404.1520(g)(1).
27
A. ALJ Ettinger’s Application of the Five-Step Evaluation
On May 7, 2009, ALJ Ettinger issued an “unfavorable”
decision finding that plaintiff was not disabled during the
Relevant Period (i.e., between October 17, 1990 and December 31,
1995). (Tr. at 246-56.)
ALJ Ettinger’s decision superseded a
prior decision by ALJ Crispino, who found plaintiff disabled as
of January 11, 2005. (Id. at 14-20.) 10
ALJ Ettinger’s decision
became the final decision of the Commissioner on April 1, 2011,
when the Appeals Council denied review of ALJ Ettinger’s
decision. (Id. at 221.)
To determine whether plaintiff was disabled during the
Relevant Period, ALJ Ettinger applied the five-step sequential
evaluation described above.
Under step 1, ALJ Ettinger
determined that plaintiff had not engaged in significant gainful
employment since the start of the Relevant Period (October 17,
1990), when plaintiff left his position at the Fire Department.
(Id. at 249.)
ALJ Ettinger then proceeded to steps 2 and 3,
where he applied the four-step analysis for determining the
severity of mental impairments. (Id. at 249-50.)
In sum, ALJ
Ettinger determined that although plaintiff had a severe
10
Although the Appeals Council vacated ALJ Crispino’s decision, it instructed
ALJ Ettinger to restrict his findings to the Relevant Period, which ends on
December 31, 1995. (Tr. at 260-61.) ALJ Ettinger was therefore not
permitted to opine on whether plaintiff became disabled at some point after
the Relevant Period. At the March 2009 hearing, however, ALJ Ettinger
stated that he saw no reason to question ALJ Crispino’s prior determination
that plaintiff was disabled as of January 11, 2005. (Id. at 600.) As a
result, ALJ Crispino’s finding that plaintiff was disabled as of at least
January 11, 2005 still stands, a point which both parties appear to accept.
28
medically determinable impairment (PTSD) during the Relevant
Period, plaintiff’s impairment was not medically equivalent to
one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix I, and plaintiff was thereby not per se disabled under
step 3. (Tr. at 250.)
In determining that plaintiff had a severe impairment
during the Relevant Period, ALJ Ettinger disregarded the expert
testimony of Dr. Jusino, 11 who indicated that the record does not
“permit a reasonable inference that [plaintiff] had a medically
determinable impairment” during the Relevant Period. (Id. at
252.)
Instead, ALJ Ettinger relied on the retrospective
diagnosis of Dr. Stein, plaintiff’s treating physician, in
concluding that plaintiff had PTSD during the Relevant Period
and that plaintiff’s PTSD constituted a severe impairment during
that time. (Id.)
After determining that plaintiff was not per se
disabled under step 3, ALJ Ettinger proceeded to assess
plaintiff’s RFC.
ALJ Ettinger found that, due to plaintiff’s
PTSD, plaintiff’s capacity to work was limited during the
Relevant Period by his inability to “tolerate more than
occasional interaction with others or exposure to trauma
victims.” (Id. at 252.)
11
As explained infra, ALJ Ettinger called upon Dr. Jusino to determine
whether one could reasonably infer from the record that plaintiff had PTSD
during the Relevant Period.
29
In making his RFC determination, ALJ Ettinger
considered, but discredited, the testimony of plaintiff, Mrs.
Cataneo (plaintiff’s wife), and Mr. Mauro (plaintiff’s former
supervisor at the Fire Department) with respect to plaintiff’s
symptoms during the Relevant Period. (Id. at 252-53.)
ALJ
Ettinger acknowledged that if plaintiff’s supporting testimony
were “fully credited,” it “would result in a far more
restrictive residual functional capacity finding.” (Id. at 252.)
Nevertheless, ALJ Ettinger determined that neither plaintiff’s
own testimony, nor the corroborating testimony of his wife and
former supervisor, could be completely credited. (Id. at 252—
53.)
First, ALJ Ettinger questioned Mrs. Cataneo’s and Mr.
Mauro’s ability to accurately describe plaintiff’s condition as
it existed “more than 14 years ago.” (Id. at 253.)
ALJ Ettinger
also found that Mrs. Cataneo’s testimony was suspect because she
stood to receive an “indirect financial benefit” from
plaintiff’s receipt of disability benefits. (Id.)
Second, ALJ
Ettinger found that Mr. Mauro was a friend of plaintiff and was
willing to write a letter at plaintiff’s behest despite the fact
that they last worked together more than thirteen years ago,
suggesting that Mr. Mauro was not an impartial witness. (Id.)
ALJ Ettinger also provided three bases for
discrediting plaintiff’s own testimony with respect to his
30
symptoms during the Relevant Period: first, the unlikelihood
that a person with “extreme behavioral problems,” which
plaintiff purports to have, would be able to work for twenty-two
years at the Fire Department, (id. at 253); second, the fact
that plaintiff did not apply for disability benefits when he
left his position at the Fire Department, (id.); and third, most
significantly, the fact that plaintiff failed to seek
professional treatment for his mental impairment between October
17, 1990 (plaintiff’s alleged disability onset date) and March
27, 2002, (id. at 254).
Finally, ALJ Ettinger found that although Dr. Stein’s
medical opinion indicated that plaintiff had PTSD during the
Relevant Period and that plaintiff was unable to continue
working as a fire marshal due to PTSD, Dr. Stein did not opine
that plaintiff “was incapable of performing other jobs.” (Id.)
ALJ Ettinger also noted that Dr. Stein himself stated that
plaintiff’s condition was exacerbated by the September 11, 2001
attacks, thus indicating that plaintiff’s condition was not as
severe during the Relevant Period as it was when plaintiff
started treatment in May 2002 (i.e., approximately seven months
after the September 11, 2001 attacks). (Id.)
ALJ Ettinger then proceeded to steps 4 and 5 of the
sequential evaluation.
At step 4, he determined that, due to
plaintiff’s inability to tolerate more than occasional
31
interpersonal interaction, plaintiff was unable to perform his
past relevant work as either a firefighter or fire marshal
because both positions required “exceptional interpersonal
skills.” (Id.)
At step 5, ALJ Ettinger considered the expert
testimony of Ms. Fass-Karlin, who determined that, during the
Relevant Period, a significant number of jobs existed in the
national economy that could be performed by an individual with
plaintiff’s RFC and vocational profile (45 years old, two years
of higher education, and experience with highly skilled work).
(Id. at 255.)
All of these jobs required “the least amount of
social interaction” of any jobs prevalent in the national
economy. (Id.)
As a result, ALJ Ettinger determined that
plaintiff had sufficient RFC during the Relevant Period to
perform a number of jobs prevalent in the national economy and
that plaintiff was thus not disabled at that time. (Id. at 256.)
B. Uncontroverted Issues and the Parties’ Contentions
Both parties agree that plaintiff has not engaged in
significant gainful employment since October 1990 and that
plaintiff’s PTSD constituted a severe impairment during the
Relevant Period. (See Def. Mem. at 23; Pl. Mem. at 35-36.)
The
Commissioner adopts ALJ Ettinger’s determination under step 3
that during the Relevant Period plaintiff’s PTSD did not meet or
medically equal one of the listed impairments in 20 C.F.R. Part
32
404, Subpart P, Appendix I, and plaintiff does not appear to
seriously challenge this determination. (See Def. Mem. at 2425.)
In addition, both parties implicitly agree that Social
Security Ruling 83-20, which provides guidelines for determining
the onset date of mental disabilities (see infra), is applicable
to the instant action. 12
Disability onset date is defined as the
first day that a claimant is disabled as prescribed by the
Social Security Act and regulations promulgated by the SSA, in
other words, pursuant to the five-step sequential evaluation.
SSR 83-20, 1983 SSR LEXIS 25.
Because both parties agree that
SSR 83-20 is applicable, and because SSR 83-20 deals exclusively
with determining the onset date of mental and other nontraumatic disabilities, the essential issue presented before
this court is whether ALJ Ettinger correctly determined the
onset date of disability due to plaintiff’s PTSD. 13
Plaintiff argues that ALJ Ettinger failed to follow
the procedures set forth in SSR 83-20 when determining
12
13
Plaintiff’s opening memorandum focuses almost exclusively on ALJ Ettinger’s
purported failure to follow SSR 83-20, while the Commissioner’s reply brief
attacks the merits of plaintiff’s SSR 83-20 contentions and does not argue
that SSR 83-20 is inapplicable to this case. (See Def. Reply at 1-6; Pl.
Mem. at 33-39.)
Furthermore, since a determination of onset date is only necessary when a
claimant has been found disabled at some other, future date, it seems that
both parties implicitly agree that plaintiff was disabled due to PTSD as of
January 11, 2005 (i.e., the disability onset date set by ALJ Crispino), or,
at the very least, at some point after the Relevant Period – although the
parties disagree on whether plaintiff’s PTSD was similarly disabling during
the Relevant Period. See SSR 83-20, 1983 SSR LEXIS 25 (“In addition to
determining that an individual is disabled, the decisionmaker [sic] must
also establish the onset date of disability.”).
33
plaintiff’s RFC because ALJ Ettinger improperly discredited the
lay testimony of plaintiff, Mrs. Cataneo, and Mr. Mauro, (Pl.
Mem. at 38-39); ALJ Ettinger improperly predicated his rejection
of plaintiff’s alleged onset date on plaintiff’s lack of
clinical treatment during the Relevant Period, (id. at 36-37);
and ALJ Ettinger did “not discharge his duty under SSR 83-20 by
calling on the testimony of a medical expert who is not willing
to make a medical inference” with respect to plaintiff’s
condition during the Relevant Period, (Pl. Reply at 3 (referring
to Dr. Jusino’s expert testimony)).
In response, the Commissioner argues that ALJ Ettinger
properly relied on circumstantial evidence in the administrative
record to discredit plaintiff’s supporting lay testimony, (Def.
Reply at 4-5), and that because the Second Circuit has held that
failure to seek treatment “seriously undermines” a claimant’s
disability claim, ALJ Ettinger properly considered plaintiff’s
lack of treatment in rejecting plaintiff’s alleged onset date,
(id. at 5-6).
In addition, with respect to plaintiff’s third
argument (i.e., that calling Dr. Jusino did not discharge ALJ
Ettinger’s duty under SSR 83-20), the Commissioner argues that
SSR 83-20 requires the ALJ to call upon a medical advisor where,
as here, the mental impairment existed before the first recorded
medical examination and the disability onset date must therefore
34
be inferred from contemporaneous circumstantial evidence and
retrospective medical assessments. (Id. at 3.)
The Commissioner
then points to SSR 83-20’s requirement that an informed
determination on a claimant’s past medical condition “must have
a legitimate medical basis.” SSR 83-20, 1983 SSR LEXIS 25.
In
the Commissioner’s view, Dr. Jusino properly considered the
record and opined that the record did not permit a reasonable
inference that plaintiff had a medically determinable impairment
during the Relevant Period. (Def. Reply at 3.)
As such, the
Commissioner argues that ALJ Ettinger discharged his obligation
under SSR 83-20 by receiving Dr. Jusino’s testimony, regardless
of whether ALJ Ettinger fully credited that testimony. (Id.)
SSR 83-20, however, imposes an obligation on the
Commissioner to both seek and use the advice of a medical expert
in order to determine the onset date of disability due to a
mental impairment when there is no contemporaneous medical
evidence from the period around the alleged onset date and the
record is found to be ambiguous or contradictory with respect to
onset date. Stokes v. Comm’r of Soc. Sec., No. 10-CV-278, 2012
WL 1067660, at *13 (E.D.N.Y. Mar. 29, 2012).
The failure to
follow SSR 83-20 constitutes grounds for remand when the
Commissioner’s decision is not otherwise supported by
substantial evidence. Morrison, 2010 U.S. Dist. LEXIS 115190, at
*19.
Because ALJ Ettinger did not comply with SSR 83-20 and
35
because his determination that plaintiff was not disabled during
the Relevant Period is not otherwise supported by substantial
evidence, remand for further administrative proceedings is
appropriate. 14
III. DETERMINATION OF DISABILITY ONSET DATE
A. Requirements Imposed by SSR 83-20
SSR 83-20 establishes guidelines for determining the
onset date of disabling impairments with non-traumatic origins,
including mental impairments. 1983 SSR LEXIS 25.
SSR 83-20 is
triggered when the Commissioner determines that a claimant is
presently disabled, but must also determine whether that
claimant was likewise disabled at some point in the past.
In
essence, this past date is the “onset date” of that claimant’s
present disability.
The onset date is formally defined as “the first day
an individual is disabled as defined in the Act and the
regulations.” Id.
14
As described above, a claimant’s Social
Remand on these grounds obviates the need to decide a number of other
issues raised by the parties. First, as discussed below, Dr. Stein’s 2010
letter is now part of the administrative record. To the extent that the
ALJ on remand finds any remaining ambiguity in the record with respect to
plaintiff’s disability onset date, the ALJ will be obligated to supplement
the record with additional testimony from Dr. Stein. Thus, it is
unnecessary to rule on ALJ Ettinger’s credibility determinations because
the credibility determinations made by the ALJ on remand will be supported
by additional medical evidence and may be materially different from ALJ
Ettinger’s current determinations. Second, it is unnecessary to determine
whether the Appeals Council improperly failed to reconsider ALJ Ettinger’s
decision in light of Dr. Stein’s 2010 letter because the case will be
remanded for further administrative proceedings and the 2010 letter is part
of the administrative record that will be considered by the ALJ on remand.
36
Security disability status is determined via the five-step
sequential evaluation. 20 C.F.R. § 404.1520.
Thus, determining
a claimant’s disability onset date utilizes the same sequential
analysis as determining whether that claimant was disabled
pursuant to the five-step evaluation at some relevant point in
the past.
As a result, SSR 83-20 logically applies to the
entirety of the five-step sequential evaluation, including the
Commissioner’s determination of RFC.
1. The Disability Onset Date Cannot be Arbitrary
The disability onset date ultimately chosen by the
Commissioner “must be . . . based on the facts and can never be
inconsistent with the medical evidence of record.” SSR 83-20,
1983 SSR LEXIS 25.
Moreover, when there is no objective medical
evidence from the period surrounding a claimant’s alleged onset
date, the disability onset date chosen by the Commissioner must
be the product of an “informed judgment” with a “legitimate
medical basis.” Id.
An arbitrary onset date determination by the
Commissioner will not be accepted by a reviewing court:
[C]ourts have held tha[t] an ALJ may not
rely on the first date of diagnosis as the
onset
date
simply
because
an
earlier
diagnosis date is unavailable.
Similar
results obtain where an ALJ adopts some
other equally arbitrary onset date, such as
the date on which the claimant applied for
SSI
benefits,
received
a
consultative
37
examination, or appeared before an ALJ at an
administrative hearing.
McCall v. Astrue, No. 05-CV-2042, 2008 U.S. Dist. LEXIS 104067,
at *65 (S.D.N.Y. Dec. 23, 2008) (citations and footnote
omitted).
2. Evidentiary Guidelines for Determining Onset Date
SSR 83-20 delineates three categories of evidence that
should be considered by the Commissioner in determining a
claimant’s disability onset date.
First, “the starting point in
determining the [onset date] is the individual’s statement as to
when disability began.” 1983 SSR LEXIS 25.
The claimant’s
alleged onset date should be adopted by the Commissioner as long
as it is consistent with all of the available evidence. McCall,
2008 U.S. Dist. LEXIS 104067, at *82.
Second, the “day the
impairment caused the individual to stop work is frequently of
great significance” in determining an onset date. 1983 SSR LEXIS
25.
Third, “medical evidence serves as the primary element in
the onset determination.” Id.
In reviewing this third category
of evidence, the Commissioner is obliged to obtain relevant
reports from all medical sources, including physicians,
hospitals, and government agencies. Id.
Furthermore, in the
case of slowly progressive impairments, where the alleged onset
date is frequently in the distant past, the Commissioner must
infer the claimant’s onset date from “medical and other evidence
38
that describe the history and symptomatology of the disease
process.” Id.
3. Additional Guidelines for Claimants Without
Contemporaneous Medical Evidence; Requirement to
Call Upon a Medical Advisor
Apart from the three categorical evidentiary
guidelines described above, SSR 83-20 imposes additional
requirements when a claimant is unable to present objective
medical evidence from the period surrounding his alleged onset
date. Id.
The Commissioner can use current medical evidence to
infer that a claimant’s present disability was similarly
disabling even before the claimant’s first medical consultation
or treatment for his disabling condition. Id.
The determination
of whether a claimant’s present disability was in fact disabling
at some point in the past ultimately depends on the “informed
judgment” of the Commissioner. Id.
Nevertheless, this judgment
must have a “legitimate medical basis,” and SSR 83-20
unambiguously states that “the [ALJ] should call on the services
of a medical advisor when onset must be inferred.” Id. (emphasis
added).
Indeed, courts have found it “essential” for the
Commissioner to consult a medical advisor where, as here, a
claimant does not have contemporaneous medical evidence from the
period around his alleged disability onset date; the record is
39
ambiguous with respect to onset date; and claimant’s disability
onset date must therefore be inferred from present medical
evidence. Stokes, 2012 WL 1067660, at *13; see also Caputo v.
Astrue, No. 07-CV-3992, 2010 U.S. Dist. LEXIS 103089, at *16-17
(E.D.N.Y. Sept. 29, 2010) (“‘While SSR 83-20 . . . does not
mandate that a medical advisor be called in every case, courts
have construed this step to be essential when the record is
ambiguous regarding onset date.’” (quoting Parmenter v. Astrue,
No. 08-CV-1132, 2010 WL 2884866, at *5 (N.D.N.Y Apr. 23, 2010),
adopted by, 2010 WL 2803418 (N.D.N.Y. July 15, 2010))); Martinez
v. Barnhart, 262 F. Supp. 2d 40, 45 (W.D.N.Y. 2003) (holding
that, in the absence of contemporaneous medical evidence, ALJ
should have appointed a medical advisor to aid in making an
inference “from the record as a whole” with respect to
claimant’s onset date).
4. The Commissioner’s Failure to Comply With SSR 83-20
Warrants Remand If His Determination of Disability
Onset Date Is Not Otherwise Supported by Substantial
Evidence
The Commissioner’s failure to adhere to the guidelines
set forth in SSR 83-20 when determining a claimant’s disability
onset date constitutes grounds for remand when the
Commissioner’s determination of disability onset date is not
otherwise supported by substantial evidence. Morrison, 2010 U.S.
Dist. LEXIS 115190, at *19; cf. Monette v. Astrue, 269 F. App’x
40
109, 112-113 (2d Cir. 2008) (affirming despite Commissioner’s
failure to follow SSR 83-20 because objective medical evidence
from the time period surrounding claimant’s alleged disability
onset date supported Commissioner’s RFC determination). 15
In addition, a claimant is entitled to remand when the
Commissioner fails to adhere to SSR 83-20 and the disability
onset date is not supported by substantial evidence, even when a
claimant is unable to produce medical evidence from the period
around the alleged disability onset date. Manago v. Barnhart,
321 F. Supp. 2d 559, 568 (E.D.N.Y. 2004); Martinez, 262 F. Supp.
2d at 45-50 (remanding solely for calculation of benefits due to
Commissioner’s failure to follow SSR 83-20, notwithstanding
claimant’s inability to produce any medical records showing that
he suffered from PTSD around his alleged onset date).
15
Remand is equally appropriate where the Commissioner’s violation of SSR 8320 is based on his failure to call upon a medical advisor to help determine
a claimant’s disability onset date. See Gibson v. Astrue, No. 07-CV-2845,
2009 U.S. Dist. LEXIS 37071, at *7 (S.D.N.Y. Apr. 30, 2009) (remanding case
with instructions for ALJ to call upon medical advisor); Felicie v. Apfel,
No. 95-CV-2832, 1998 U.S. Dist. LEXIS 5068, at *11-12, *19 (remanding for
further proceedings in part because ALJ failed to call upon medical advisor
when determining onset date became a matter of “guesswork”); Walton v.
Halter, 243 F.3d 703, 709-10 (3d Cir. 2001) (requiring ALJ to call upon a
medical expert to determine the onset date of a mental disability in the
absence of contemporaneous evidence because that judgment must have a
“medical basis”) (citing other Circuits).
41
B. ALJ Ettinger Failed to Follow SSR 83-20 When He Called a
Medical Expert but Failed to Consider That Expert’s
Testimony in Determining Plaintiff’s Disability Onset Date
1. SSR 83-20 Required ALJ Ettinger to Call a Medical
Advisor to Help Determine Plaintiff’s Disability
Onset Date
In the instant action, there is no objective medical
evidence from the Relevant Period with respect to plaintiff’s
PTSD. (Tr. at 252.)
Pursuant to SSR 83-20, ALJ Ettinger was
therefore required to utilize a medical advisor to assist with
determining the onset date of plaintiff’s disability due to
PTSD.
The parties agree that plaintiff’s PTSD was a severe
impairment during the Relevant Period, but do not agree that the
PTSD was per se disabling under step 3 of the sequential
evaluation.
Therefore, the court begins its review of ALJ
Ettinger’s compliance with SSR 83-20 by examining ALJ Ettinger’s
determination of plaintiff’s RFC during the Relevant Period.
At
this stage of the sequential evaluation between steps 3 and 4,
ALJ Ettinger considered the testimony of plaintiff’s wife and
former supervisor, noting that, if credited, such testimony
would “result in a far more restrictive” RFC. (Id. at 252-53.)
ALJ Ettinger also found, however, that this testimony was
inconsistent with plaintiff’s work history and lack of treatment
during the Relevant Period, and he did not credit the testimony.
(Id.)
42
Put another way, ALJ Ettinger determined that the
record lacked objective contemporaneous medical evidence and
that the non-medical evidence was ambiguous, not credible, and
contradictory with respect to disability onset date.
Consequently, pursuant to SSR 83-20, ALJ Ettinger was obligated
to seek the advice of a medical expert to help determine the
date of disability onset. See, e.g., Stokes, 2012 WL 1067660, at
*13 (holding that, due to limited medical evidence and a
conflict between claimant’s alleged onset date and other
circumstantial evidence, the ALJ on remand was obligated to
consult a medical expert to determine onset date); Felicie, 1998
U.S. Dist. LEXIS 5068, at *11-12 (finding that, because the
record was “limited” with respect to contemporaneous evidence,
ALJ was obligated by SSR 83-20 to call upon a medical advisor to
help determine claimant’s disability onset date).
2. Receiving Dr. Jusino’s Testimony Did Not Discharge
ALJ Ettinger’s Duty to Call a Medical Advisor
Although ALJ Ettinger received expert testimony from
Dr. Carlos Jusino during the March 17, 2009 administrative
hearing, (Tr. at 623-29), ALJ Ettinger failed to discharge his
duty under SSR 83-20 to obtain the advice of a medical expert
because he did not rely on the expert testimony he received from
Dr. Jusino to determine plaintiff’s disability onset date.
At
the March 2009 hearing, ALJ Ettinger asked Dr. Jusino whether
43
the medical evidence in the administrative record permitted “a
reasonable inference as to whether or not [plaintiff] had a
medically determinable mental impairment during [the Relevant
Period].” (Tr. at 624.)
Honor.” (Id.)
Dr. Jusino responded with “No, Your
Dr. Jusino based this determination on several
factors including the implausibility that plaintiff would
abstain from professional treatment for twelve years if he “had
a significant mental impairment,” (id.); plaintiff’s use of
drugs and alcohol during the Relevant Period, because withdrawal
symptoms from these substances mimic panic disorders, (id. at
625-26); and the fact that Dr. Stein’s diagnosis required more
“clarification” before it could be used to infer that plaintiff
had PTSD during the Relevant Period, (id. at 625).
Notwithstanding Dr. Jusino’s testimony, in issuing his
decision, ALJ Ettinger accepted, in part, the medical opinion of
Dr. Stein, plaintiff’s treating physician, who stated that
plaintiff had PTSD during the Relevant Period. (Id. at 252.)
Indeed, ALJ Ettinger’s decision only mentioned Dr. Jusino’s
testimony once — to reject it.
Thus, although ALJ Ettinger
received and rejected testimony from a medical advisor, he did
not use that medical advisor’s testimony to help him determine
plaintiff’s disability onset date or to clarify the ambiguous
record regarding plaintiff’s disability onset date, thus
violating the spirit and underlying purpose of SSR 83-20. See,
44
e.g., Stokes, 2012 WL 1067660, at *13 (holding that calling upon
a medical advisor is “essential when the record is ambiguous
regarding onset date” (internal quotation marks omitted));
Morrison, 2010 U.S. Dist. LEXIS 115190 at *18; Felicie, 1998
U.S. Dist. LEXIS 5068, at *10 (“[T]he ALJ should call on the
services of a medical advisor to help in making the necessary
inferences.” (emphasis added) (internal quotation marks
omitted)).
Furthermore, because SSR 83-20 “‘imposes what might
fairly be called heightened record-development duties’” on the
Commissioner, ALJ Ettinger should have clearly articulated why
he rejected Dr. Jusino’s expert testimony, and particularly
accepted Dr. Stein’s finding that plaintiff suffered from PTSD
during the relevant period since October 17, 1990. Stokes, 2012
WL 1067660, at *13.
In light of the foregoing, the court has “a reasonable
basis [to] doubt whether the ALJ applied correct legal
principles” in determining plaintiff’s disability onset date.
Johnson, 817 F.2d at 986.
C. The Commissioner’s Finding that Plaintiff Was Not Disabled
During the Relevant Period is Not Supported by Substantial
Evidence
The Commissioner’s failure to adhere to the guidelines
set forth in SSR 83-20 warrants remand when his determination is
45
not otherwise supported by substantial evidence. Morrison, 2010
U.S. Dist. LEXIS 115190, at *19.
As ALJ Ettinger acknowledged, there is no affirmative
evidence of either disability or non-disability from the
Relevant Period; there are no medical records, and any work
history was brief and inconsequential. (Tr. at 249, 252.)
Nevertheless, ALJ Ettinger inferred, from the following
evidence, that plaintiff’s PTSD was not sufficiently limiting
during the Relevant Period to be disabling: (i) plaintiff worked
for twenty-two years, was eventually promoted to fire marshal,
and was in line for another promotion at the time of his
retirement, (id. at 253); (ii) plaintiff did not apply for
disability benefits at the time of his retirement, (id.); and
(iii) most significantly, plaintiff did not seek treatment until
2002, (id. at 254).
These inferences do not constitute substantial
evidence supporting ALJ Ettinger’s conclusion that plaintiff was
not disabled during the Relevant Period, however, because
inferences of this type have routinely been rejected by courts
within the Second Circuit and because Dr. Stein’s 2010 letter,
which is part of the administrative record on review, appears to
indicate that plaintiff’s PTSD was disabling during the Relevant
Period.
46
1. The Type of Evidentiary Inferences Made by ALJ
Ettinger Have Been Routinely Rejected by Courts in
the Second Circuit
ALJ Ettinger inferred that plaintiff’s PTSD was not as
severe during the Relevant Period as plaintiff claims because of
his twenty-two years of work experience.
As Chief Judge Amon
held in Morrison, however, “the fact that [a claimant] was able
to work during a period preceding his claimed onset of
disability . . . does not imply that his symptoms could not have
subsequently worsened to the point that they became disabling.”
2010 U.S. Dist. LEXIS 115190, at *13.
The record is replete with indications that
plaintiff’s condition worsened during his final years as a fire
marshal and eventually forced him to retire. (Tr. at 59, 72-73,
163-64, 606.)
Moreover, plaintiff was able to keep working due
in part to his supervisor, who made exceptions for plaintiff due
to his condition. (Id. at 31.)
Thus, the record does not
support ALJ’s Ettinger’s determination that plaintiff’s work
history supported a finding of non-disability.
Second, with respect to plaintiff’s failure to seek
disability benefits upon his retirement in 1990, ALJ Ettinger’s
own findings indicate that plaintiff had significant income from
two pensions following his retirement. (Id. at 253-54.)
Moreover, plaintiff has indicated that, during the Relevant
Period, he was not fully aware that his symptoms constituted a
47
disorder. (Id. at 355, 616-17.)
Thus, it is not surprising that
plaintiff did not seek disability benefits for a disorder that
he did not fully comprehend.
Finally, the Commissioner places great weight on
plaintiff’s failure to seek professional treatment for PTSD
until 2002. (Def. Reply at 5-6.)
ALJ Ettinger’s reliance on
plaintiff’s delay in treatment, however, fails for several
reasons.
First, although plaintiff never sought clinical care
during the Relevant Period, he used drugs and alcohol to
alleviate his symptoms. (Tr. at 610-11; see, e.g., Glover v.
Barnhart, No. 06–CV–195, 2009 WL 35290, at *12-13 (N.D.N.Y. Jan.
5, 2009) (finding that letter attesting to claimant’s alcohol
use was probative of mental health).)
Second, this inference
implicates a question best reserved for an impartial medical
advisor: namely, whether the symptomatology of PTSD is generally
such that a person with severe PTSD would likely or necessarily
seek medical treatment.
Third, the cases cited by the Commissioner in support
of this evidentiary inference are inapposite, and in no way
suggest that lack of treatment, on its own, can support a
finding of non-disability.
In both Arnone v. Bowen, 882 F.2d
34, 39 (2d Cir. 1989), and Navan v. Astrue, 303 F. App’x 18, 20
(2d Cir. 2008), the Second Circuit held that a claimant’s
failure to seek treatment undermines his disability claim.
48
In
both cases, however, the claimants suffered from serious
physical impairments.
It is a natural inference that someone
with an extremely painful physical impairment would not abstain
from clinical treatment.
The inference is less plausible for an
individual with a mental impairment with symptoms that include
social anxiety and isolation. (Tr. at 341.)
Moreover, although
the Commissioner cites four cases that appear to support the
inference of non-disability from the lack of treatment of a
mental impairment, 16 these cases are distinguishable because in
each case, there was contemporaneous medical evidence indicating
that the claimant’s alleged impairment lacked sufficient
severity to be disabling, 17 whereas there is no such
contemporaneous evidence in the instant case. (Id. at 252.)
16
17
See Gonzalez v. Comm’r of Soc. Sec., No. 08–CV–2314, 2009 WL 803121, at *11
(E.D.N.Y. Mar. 25, 2009); Moscatiello v. Apfel, 129 F. Supp. 2d 481, 489
(E.D.N.Y. 2001); Vitale v. Apfel, 49 F. Supp. 2d 137, 142-43 (E.D.N.Y.
1999); Howe–Andrews v. Astrue, No. CV-05-4539, 2007 WL 1839891, at *9
(E.D.N.Y. June 27, 2007).
In Gonzalez, the claimant purported to have depression in 1995, but only
sought treatment in 1996; however, after only one month of treatment, the
claimant’s treating physician told the claimant that “he was doing better,”
and the claimant did not seek further psychiatric help until after his
insured status expired. 2009 WL 803121, at *11. In Moscatiello, the
claimant did not seek treatment for her alleged mental impairment until
more than two years after her insured status expired. 129 F. Supp. 2d at
489. Although the claimant was continuously treated for other disorders
during the period when she was allegedly disabled by her mental impairment,
“the medical professionals who closely monitored plaintiff did not perceive
that she suffered from a disabling mental or emotional condition.” Id. In
Vitale, the claimant received medical attention several months after his
alleged mental disability onset date; although the physician “offered a
diagnosis of severe anxiety and depression related to chronic back pain,
there is no evidence of a clinical examination or that she provided or
prescribed ongoing therapy.” 49 F. Supp. 2d at 143. Finally, in Howe–
Andrews, the claimant received treatment for anxiety, but her physician
prescribed medication that effectively controlled her symptoms, and she did
not seek further treatment for two years. 2007 WL 1839891, at *9.
49
Finally, the Commissioner also cites Duraku v.
Barnhart, No. 01-CV-310, 2002 WL 31956008 (E.D.N.Y. Dec. 10,
2002).
In Duraku, the court denied plaintiff’s claim for adult-
child disability benefits in part because plaintiff did “not
even begin seeing a psychiatrist until . . . five years after”
she was last eligible for disability benefits. 2002 WL 31956008
at *4.
The Duraku case is readily distinguishable from the
instant action because even when the Duraku claimant finally
sought care, her treating physician did not diagnose her with a
severe mental impairment. Id.
Here, in contrast, ALJ Ettinger
found that plaintiff had a severe impairment as of October 1990
(i.e., the beginning of the Relevant Period), well before
plaintiff’s insured status expired.
Second, as is true for the
other cases cited by the Commissioner on this point, the Duraku
court considered the lack of treatment as but one factor in the
Commissioner’s discrediting of a claimant’s allegations with
respect to disability onset.
Neither Duraku, nor any other case
cited by the Commissioner, provides authority for the
proposition that lack of treatment, on its own, is sufficient to
find non-disability.
2. Dr. Stein’s 2010 Letter Affirmatively Indicates that
Plaintiff was Disabled During the Relevant Period
After ALJ Ettinger issued his decision, plaintiff
submitted a January 2010 letter by Dr. Stein to the Appeals
50
Council. (Tr. at 224-27.)
Because the 2010 letter relates to
the period before ALJ Ettinger’s decision, and was properly
submitted to the Appeals Council, (id. at 237-39), it is now
part of the administrative record for review before this court,
Perez, 77 F.3d at 45.
Dr. Stein’s 2010 letter states that plaintiff’s PTSD
was as severe in March 2002 as it was in December 1995. (Tr. at
228-29.)
Although the 2010 letter does not explicitly state
that plaintiff was disabled during the Relevant Period, it does
indicate that plaintiff’s condition remained relatively
unchanged from 2002 to 2010. (Id. at 229.)
The Commissioner
previously determined that plaintiff was disabled as of January
11, 2005. (Id. at 19; see note 10, supra.)
Thus, the January
2010 Letter implies that plaintiff’s PTSD was at least as severe
during the Relevant Period as it was in 2005, when the
Commissioner determined that plaintiff’s PTSD became disabling.
Although Dr. Stein’s January 2010 letter presents a
retrospective opinion of plaintiff’s disorder during the
Relevant Period, the Second Circuit has attributed significant
probative value to retrospective opinions from treating
physicians that are not otherwise undermined by conflicting
medical or circumstantial evidence. Wagner v. Sec’y of Health &
Human Servs., 906 F.2d 856, 861-62 (2d Cir. 1990) (noting that
the government was not entitled to disregard a treating
51
physician’s retrospective medical testimony even though there
were gaps in the medical record, and the government was
suspicious of the physician’s ability retrospectively to
diagnose the claimant’s condition); see also Rivera v. Sullivan,
923 F.2d 964, 969 (2d Cir. 1991) (accepting retrospective
opinion when there was no contrary medical testimony, and no
“overwhelmingly compelling” circumstantial evidence); Adorno v.
Halter, No. 99-CV-2758, 2002 WL 59422, at *3 (S.D.N.Y. Jan. 16,
2002) (“the diagnosis of . . . a psychiatrist festooned with
academic and professional credentials . . . certainly qualifies
as a true retrospective diagnosis”; also noting that mental
illnesses tend to be progressive and are thereby “particularly
well suited to retrospective diagnosis”).
Dr. Stein is the Director of the PTSD program at the
VANYHHS, (Tr. at 164), and has treated plaintiff since March
2003, (id. at 339).
The Commissioner previously accepted Dr.
Stein’s assessment that plaintiff suffered from PTSD during the
Relevant Period. (Id. at 252.)
There is no objective medical
evidence that contradicts Dr. Stein’s retrospective opinion, and
the weight of the contrary circumstantial evidence cited by ALJ
Ettinger is questionable, as discussed above.
Thus, Dr. Stein’s
retrospective opinion on plaintiff’s condition during the
Relevant Period is entitled to significant probative weight.
52
This conclusion is not undermined by the fact that
plaintiff’s condition worsened after the September 11 attacks.
In Byam v. Barnhart, the Second Circuit noted that exacerbation
of an impairment does not automatically devalue the weight
afforded to a retrospective opinion regarding the severity of
that impairment prior to exacerbation:
We do not rule out the possibility that the
plaintiff’s
condition
may
have
degenerated . . . raising a concern about
the retrospective accuracy of [the medical]
evaluation.
However, in other cases of
degenerative
conditions
and
speculative
retrospective diagnoses, plaintiffs have won
reversals of adverse decisions.
336 F.3d 172, 183 (2d Cir. 2003).
Here, plaintiff’s condition
fluctuated during his years of treatment, and his diagnosis
continues to be poor, suggesting that plaintiff’s condition was
inherently prone to fluctuations due to external stimuli, and
that it may have been similarly exacerbated during the Relevant
Period. 18
Indeed, plaintiff’s wife indicated that plaintiff’s
condition worsened after the first World Trade Center attack in
1993, which was during the Relevant Period. (Tr. at 236.)
Thus, the Commissioner has not cited substantial
evidence in support of his determination that plaintiff was not
disabled during the Relevant Period, first, because ALJ
Ettinger’s evidentiary inferences do not constitute substantial
18
Compare Tr. at 320, with id. at 314, 317 (indicating that the frequency of
plaintiff’s panic attacks decreased in December 2003, only to rise
drastically between February and March 2004).
53
evidence in support of that determination and, second, because
Dr. Stein’s 2010 letter — the only viable medical evidence with
respect to the severity of plaintiff’s PTSD during the Relevant
Period – indicates that plaintiff’s PTSD was disabling during
the Relevant Period.
IV.
Disposition
As detailed above, the Commissioner failed to abide by
SSR 83-20 in determining plaintiff’s disability onset date.
Furthermore, the Commissioner’s determination that plaintiff was
not disabled during the Relevant Period is not supported by
substantial evidence.
As a result, the court remands this case
to the Commissioner. Morrison, 2010 U.S. Dist. LEXIS 115190, at
*19.
The only remaining question is whether this matter should
be remanded for further administrative proceedings, or for the
calculation of benefits.
The Second Circuit in Curry v. Apfel held that when
the Commissioner fails to meet his burden under step 5 to show
that a claimant has sufficient RFC to perform work available in
the national economy, “remand for the sole purpose of
calculating an award of benefits is mandated.” 209 F.3d 117, 124
(2d Cir. 2000).
Curry has since been abrogated by new
regulations promulgated by the SSA on August 26, 2003, 20 C.F.R.
§ 404.1560(c)(2), which clarify that, under step 5, “the
Commissioner need only show that there is work in the national
54
economy that the claimant can do; he need not provide additional
evidence of the claimant’s residual functional capacity.” 19
Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009).
The Second Circuit has repeatedly declined to decide
whether the new regulations apply retroactively to individuals
such as plaintiff, whose alleged onset dates are prior to August
26, 2003. Id. (declining to reach the retroactivity issue, but
noting that there “is some authority that suggests this
contention is without merit, notwithstanding Bowen v. Georgetown
Univ. Hosp., 488 U.S. 204 (1988), because the regulations do not
have the kind of retroactive effect that Bowen restricts”); see
also Mancuso v. Astrue, 361 F. App’x 176, 177 (2d Cir. 2010)
(“We left this [retroactivity] question open in Poupore . . .
and need not conclusively decide the issue here . . . .”
(citation omitted)); Rodriguez v. Astrue, No. 11-CV-7720, 2012
WL 4477244, at *32 n.70 (S.D.N.Y. Sept. 28, 2012) (“[I]t is an
open question in this Circuit whether the amended regulation
applies retroactively to a claimant whose alleged onset
disability occurred prior to the amendment becoming
effective.”).
19
In his opinion, ALJ Ettinger indicated that, at step 5, the Commissioner
only carried a limited burden to show that “other work exists in
significant numbers in the national economy that the claimant can do.”
(Tr. at 248.) Thus, ALJ Ettinger applied the law as it currently stands,
and not its pre-2003 version. 20 C.F.R. § 404.1560(c)(2).
55
Nevertheless, district courts in this Circuit continue
to apply the Curry standard to cases in which the claimant’s
alleged onset date precedes August 26, 2003. See, e.g., Jones v.
Astrue, No. 09-CV-5577, 2012 WL 4473258, at *4 (S.D.N.Y. Sept.
28, 2012) (“[D]istrict courts within this Circuit have
repeatedly explained that the Curry standard applies when the
onset of disability occurred before the promulgation of 20
C.F.R. § 404.1560(c)(2).”); Lupo v. Comm’r of Soc. Sec., No. 07–
CV–4660, 2011 WL 1316105, at *2 (E.D.N.Y. April 4, 2011); Brown
v. Comm'r of Soc. Sec., No. 06–CV–3174, 2011 WL 1004696, at *3
(E.D.N.Y. Mar. 18, 2011); cf. Ramos v. Astrue, No. 09-CV-3030,
2010 WL 3325205, at *6 (E.D.N.Y. Aug. 19, 2010).
Nonetheless,
Curry’s obligation to remand for the calculation of benefits
applies only to cases “where the reversal is based solely on the
[Commissioner’s] failure to sustain [his evidentiary] burden . .
. [and] no purpose would be served by . . . remanding the case
for rehearing.” Curry, 209 F.3d at 124 (alterations in original)
(internal quotation marks omitted).
Indeed, “[r]emand for
further proceedings is the usual remedy when the record is
incomplete or the ALJ has committed legal error.” Melendez v.
Astrue, No. 08-CV-6374, 2010 WL 199266, at *1 (S.D.N.Y. Jan. 20,
2010) (citing Curry, 209 F.3d at 124).
Here, the order for remand is based in part on the
Commissioner’s failure to follow his own regulations in
56
determining plaintiff’s RFC during the Relevant Period, and by
extension, plaintiff’s disability status under step 5 of the
sequential evaluation.
Thus, this case is based on a qausi-
legal error, and not just a failure by the Commissioner to meet
his evidentiary burden.
As a result, this court is not
obligated by Curry to remand solely for calculation of benefits.
See Brown, 2011 WL 1004696, at *4, 6 (finding that Curry
applied, but holding that remand for further proceedings was
still appropriate because the Comissioner’s error under step 5
was based on his failure to follow relevant SSA regulations);
Villanueva v. Barnhart, No. 03-CV-9021, 2005 WL 22846, at *13
(S.D.N.Y. Jan. 3, 2005) (notwithstanding Curry, ”remand solely
for the calculation of benefits would not be appropriate on the
current incomplete record, and further findings may support the
Commissioner's decision”).
Remand would allow the Commissioner
to revisit and incorporate into his analysis the findings of his
medical advisor, Dr. Jusino, or call upon the services of
another medical advisor willing to make a medical inference
regarding plaintiff’s disability onset date, which would
“plainly help to assure the proper disposition of [plaintiff’s]
claim.” Kirkland, 2008 WL 267429, at *8 (internal quotation
marks omitted).
Thus, a clear purpose would be served by
additional proceedings below.
57
Furthermore, application of the correct legal
standards will not lead to only one potential result. See Schaal
v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998) (“Where application
of the correct legal standard could lead to only one conclusion,
we need not remand.”).
Although Dr. Stein’s 2010 letter
strongly suggests that plaintiff was disabled during the
Relevant Period, the presumption favoring a treating physician’s
diagnosis can be rebutted by evidence in the record identified
by the Commissioner. Halloran, 362 F.3d at 32 (2d Cir. 2004)
(“[T]he opinion of the treating physician is not afforded
controlling weight where . . . the treating physician issued
opinions that are not consistent with other substantial evidence
in the record . . . .”).
If the ALJ finds that the 2010 letter
is ambiguous or contradicted by the record, he would be
obligated to supplement the record with additional testimony
from Dr. Stein with respect the severity of plaintiff’s
condition during the Relevant Period. Stokes, 2012 WL 1067660,
at *13.
At this point, the court cannot predict how such
additional testimony may effect the disability determination.
Thus, application of the correct legal principles by the ALJ on
remand would not necessarily lead to one result.
58
CONCLUSION
For the foregoing reasons, the court denies the
parties’ cross-motions for judgment on the pleadings and remands
this case to the Commissioner for additional administrative
proceedings consistent with this opinion.
In particular, the
ALJ on remand should consider the retrospective opinion of Dr.
Stein as provided in his January 2010 letter.
If the ALJ
determines that there are any ambiguities or inconsistencies in
the record regarding plaintiff’s disability onset date, the ALJ
should call upon Dr. Stein, or another medical advisor, to
provide further evidence, including testimony with respect to
the severity of plaintiff’s PTSD during the Relevant Period, and
should revisit and discuss Dr. Jusino’s testimony regarding
plaintiff’s disability onset date.
To the extent that the ALJ rejects either Dr. Stein’s
or Dr. Jusino’s medical testimony, the ALJ should clearly
articulate his reasons for doing so and support those reasons
with citations to the record.
The ALJ should also consult and
apply SSR 83-20 in making his decision with respect to the onset
date of plaintiff’s disability, bearing in mind that the
disability onset date ultimately determined by the ALJ must be
the product of an “informed judgment” and have a “legitimate
medical basis.”
59
The Clerk of the Court is respectfully requested to
close this case.
SO ORDERED.
Dated:
March 17, 2013
Brooklyn, New York
____________/s/______________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
60
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