Proano v. Astrue

Filing 20

MEMORANDUM & ORDER: The Commissioners motion 16 for judgment on the pleadings is denied, and Proanos motion 14 is granted insofar as the case is remanded. Ordered by Judge Frederic Block on 10/9/2013. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JEANNETT PROANO,
MEMORANDUM AND ORDER
12-CV-4184 (FB)

Plaintiff,
-againstCAROLYN W. COLVIN,
Acting 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, New York 10165

For the Defendant:
LORETTA E. LYNCH, ESQ.
United States Attorney
KATRINA M. LEDERER, ESQ.
Assistant United States Attorney
271 Cadman Plaza East, 7th Floor
Brooklyn, New York 11201

BLOCK, Senior District Judge:
Jeannett Proano (“Proano”) seeks review of a final decision issued by the
Commissioner of Social Security (“Commissioner”). Although the Commissioner granted
Proano’s application for Disability Insurance Benefits (“DIB”) as of June 3, 2009, Proano
argues that she should have been found disabled as of August 1, 2005.
Both Proano and the Commissioner move for judgment on the pleadings.
While the Commissioner asks the Court to uphold the existing onset date, Proano seeks
remand for recalculation of benefits given the adjusted date, or alternatively, remand for
a new hearing to determine an earlier onset date. For the reasons stated below, the
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Commissioner’s motion is denied and Proano’s motion is granted insofar as the Court
remands the case for further proceedings. The Court declines Proano’s request to remand
solely for recalculation of benefits because further evidentiary proceedings are necessary,
both for the ALJ to employ the services of a medical advisor and to consider the new
evidence. Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980).
I
On June 22, 2009, Proano filed an application for DIB, alleging disability
beginning on August 1, 2005, due to depression, Hodgkin’s disease, and non-Hodgkin’s
lymphoma. A disability examiner approved her claim on October 15, 2009, with an
established onset date of June 3, 2009. Proano challenged the onset date, and, at a hearing
held on July 29, 2010, she appeared before an administrative law judge (“ALJ”). The ALJ
found her “not disabled” from August 1, 2005 through June 2, 2009. The Appeals Council
denied Proano’s request for review, rendering the ALJ’s decision the final act of the
Commissioner.
Proano timely sought judicial review. The relevant evidence proffered at the
hearing before the ALJ is summarized below.

A. Medical Evidence at the ALJ Hearing
1. Pre-2009 Evidence
At the psychiatric division of Bellevue Hospital Center (“Bellevue Clinic”) on
December 2 and 9, 2005, Dr. Melanie Schwartz diagnosed Proano with depression not

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otherwise specified (“NOS”), assessed a Global Assessment of Functioning (“GAF”) of 5560, and prescribed Remeron for sleep. The catalysts for Proano’s depression included her
lymphoma, undergoing chemotherapy, and marital problems. Six months later at Bellevue,
Dr. Neeta Jain confirmed the same and diagnosed her with Major Depressive Disorder,
secondary to her lymphoma. Dr. Jain recommended Wellbutrin, a support group, and
couples therapy.
In the months that followed, Proano’s behavior was remarkably inconsistent.
Proano attended some group therapy sessions, yet missed others. She attended some
medical appointments, yet cancelled others. Her reasons for her sporadic attendance
varied: chemotherapy treatments, vacations to Ecuador, or other scheduling conflicts. Her
sentiments about the effectiveness of her treatments were also inconsistent. One day she
expressed ambivalence about continuing group therapy and stated that she benefitted from
treatment sessions, while another day she stated that she no longer wished to continue
psychopharmacological intervention. Her compliance with prescribed medication was
likewise sporadic. She reported that her medication, Wellbutrin, was helpful; yet despite
its effectiveness, she would frequently allow it to run out. In November 2008, she opted
for an increase of that medication, but in April 2009, she reported that she had discontinued
taking it several months earlier.
Her medical diagnosis, however, was consistent. Every doctor at Bellevue
Clinic over the four-year period at issue diagnosed her with the same mental impairment,
Major Depressive Disorder, albeit with slight variations. As noted, Dr. Schwartz first
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diagnosed Proano in December 2005 with depression NOS. Screening physician Dr. Neeta
Jain confirmed the same, diagnosing her with Major Depressive Disorder, secondary to her
lymphoma. In addition, Dr. Lowell Anderson saw her at the Bellevue outpatient clinic and
diagnosed her with “Major Depressive Disorder, single episode, moderate” in May 2007.
AR at 647. At Bellevue psychiatric clinic in July 2007, screening clinician Clara Angel, M.A.,
noted Proano was depressed, tearful, and angry. In October 2007 and January 2008, Clara
Angel diagnosed her with Major Depressive Disorder, noting a high GAF of 61. In April
2009, attending physician Dr. Susan Urban also diagnosed Proano with Major Depressive
Disorder, characterizing it as recurrent but moderate.
2. Post-2009 Evidence
Treating physician Dr. Ludmila Davidov began treating Proano on June 3,
2009, the onset date established by the Commissioner. During her treatment relationship
with Proano, Dr. Davidov reported conclusions consistent with those of state psychological
consultant Yakov Burstein; namely, that Proano had marked limitations in remembering
locations and work-like procedures, mantaining attention and concentration for extended
periods, performing activities within a schedule, working in coordination with others,
completing a normal workweek without interruption, accepting instructions and
responding to criticism, as well as understanding, remembering, and carrying out detailed
instructions. Dr. Davidov diagnosed Major Depressive Disorder, consistent with prior
medical examiners. Moreover, Proano’s assessed GAF at this time was 50, with a highest

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GAF in the prior year of 55. In other words, Proano had not significantly worsened—or
improved—at the time Dr. Davidov examined her.

B. The ALJ’s Decision
In a decision dated October 21, 2010, the ALJ concluded that “the claimant
was not under a disability within the meaning of the Social Security Act from August 1,
2005, through June 2, 2009 with the finding of disability as of June 3, 2009 not disturbed.”
AR at 16. In other words, despite the same symptoms plaguing Proano during that time
period, the ALJ chose to find that she suddenly became depressed and incapable of
sustaining work on the day she began treatment with Dr. Davidov, but no earlier. The ALJ
concluded that Proano’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms, but did not find her credible as to the intensity,
persistence and limiting effects of her symptoms.
The ALJ found that, despite her consistent battle with depression, severe
impairments of follicular cancer with peripheral neuropathy, and degenerative disk disease
of the cervical spine, Proano retained the residual functional capacity (“RFC”) to perform
medium exertional work with some mental restrictions during the disputed period. The
ALJ explained that Proano was “limited to understanding, remembering, and carrying out
simple instructions, making simple decisions, and dealing with changes only in a routine
work setting.” AR at 19. Based upon this RFC determination, and relying on the Medical
Vocational Guidelines as a framework, the ALJ found that Proano was “not disabled”
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through June 2, 2009. AR at 24-25.

C. New Evidence
Subsequent to the ALJ’s decision, Proano submitted to the Appeals Council
a report from Dr. Davidov. In that report, Dr. Davidov retrospectively addressed Proano’s
mental condition prior to the date she began treating her. Dr. Davidov opined: “Mrs.
Proano suffered, and has been suffering, from Major Depressive Disorder and chronic
bereavement for several years. She was and has been unable to perform such a job [as her
past sales or clerical job] at least since August 2005, when she was diagnosed with
lymphoma.” AR at 903. Dr. Davidov further noted that “despite [Proano’s] medications
regimen, she remained treatment resistant, and has not reached a level of functionality
where she would be able to resume her duties.” AR at 903.
II
Proano contends that four errors warrant remand for recalculation of benefits,
or alternatively, remand for further proceedings to determine an earlier onset date. First,
Proano takes issue with the ALJ’s determination that her onset date was June 3, 2009, since
she began experiencing symptoms as early as August 1, 2005. Second, she contends that
the Appeals Council erred by denying her request to review the ALJ’s decision, particularly
in light of new and material evidence. Third, she takes issue with the ALJ’s credibility
determination. Finally, she contends that the ALJ inappropriately relied upon the MedicalVocational Guidelines.
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III
“In reviewing the final decision of the Commissioner, a district court 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).
“Substantial evidence” refers to “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)). In determining whether substantial
evidence supported the agency’s findings, “the reviewing court is required to examine the
entire record, including contradictory evidence and evidence from which conflicting
inferences can be drawn.” Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983).
A. Proano’s Onset Date
Social Security Ruling 83–20 governs the determination of a claimant’s onset
date—namely, the date on which a claimant becomes unable to perform any substantial
gainful activity. SSR 83–20, 1983 WL 31249, at *1. Unless the evidence directly establishes
an onset date, the ALJ must determine one through inference. Id. at *2-3. “In some cases,
it may be possible . . . to reasonably infer that the onset of a disabling impairment(s)
occurred some time prior to the date of the first recorded medical examination, e.g., the
date the claimant stopped working.” Id. at *3. In determining an onset date for claimants
with disabilities of non-traumatic origin, the ALJ should consider “the applicant's
allegations, work history, if any, and the medical and other evidence concerning
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impairment severity.” Id. at *2. Moreover, in those cases, SSR 83–20 compels the ALJ “to
employ a medical advisor to assist in determining the onset date.” Id. (noting that a
progressive impairment may become disabling before it reaches listing severity). See also
Walton v. Halter, 243 F.3d 703, 709–10 (3d Cir. 2001); Felicie v. Apfel, 1998 WL 171460, at *4
(S.D.N.Y. Apr. 13, 1998) (same). The date alleged by the claimant, if consistent with all the
evidence available, should serve as the established onset date. SSR 83–20, 1983 WL 31249,
at *3.
Importantly, “an ALJ may not rely on the first date of diagnosis as the onset
date simply because an earlier diagnosis date is unavailable.” McCall v. Astrue, 2008 WL
537812, at *18 (S.D.N.Y. Dec. 28, 2008); Lichter v. Bowen, 814 F.2d 430, 434-36 (7th Cir. 1987).
Equally arbitrary onset dates include “the date on which the claimant applied for SSI
benefits, received a consultative examination, or appeared before an ALJ at an
administrative hearing.” See, e.g., Bell v. Sec’y of Health & Human Servs., 732 F.2d 308, 311
(2d Cir. 1984). Moreover, in cases involving disabilities of a degenerative nature, an ALJ
commits error by assuming that the claimant “suddenly became schizophrenic [or
otherwise mentally disabled] on the day of her hearing, absent some evidence to support
such a view.” Bell, 732 F.2d at 311.
The ALJ’s less-than-convincing rationale for the evidence he considered does
not amount to compliance with the procedures and guidelines established by SSR 83–20.
Simply put, because the regulations charge the ALJ with the affirmative duty to develop
the record, the ALJ failed to discharge that duty when he inferred Proano’s onset date
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without employing a medical advisor to assist him. SSR 83–20, 1983 WL 31249, at *1. The
ALJ maintains he conducted “a thorough review of the record, including Bellevue Hospital
treatment reports, assessments/reports of . . . the claimant’s treating gastroenterologist,
post-established onset date assessments/narrative report by Dr. Davidov . . . and a State
agency psychiatric medical consultant assessment, as well as the claimant’s hearing
testimony.” AR at 21. Nevertheless, the ALJ’s selected onset date is unsupported by
substantial evidence.
Moreover, in light of the nature of Proano’s disability, “if plaintiff was
disabled as of [her] first visit to [Dr. Davidov], it is at least reasonable to conclude that [the]
disability began earlier.” Moses v. Sullivan, 1993 WL 26766, at *4 (S.D.N.Y. Jan. 19, 1993).
The ALJ conceded, but then apparently disregarded, that Bellevue Hospital treatment
reports, from as early as December 2005, confirm Proano experienced symptoms, including
“depressed mood, decreased, appetite, fatigue, [and] tearfulness,” at which time she was
diagnosed with Major Depressive Disorder. AR at 22. The ALJ then assigned little weight
to this evidence of symptomatology, seemingly because, “[the] claimant failed to show for
her follow-up appointment and eventually discontinued the evaluation until after her
chemotherapy.” AR at 22.
The record does reveal that Proano frequently traveled to visit her family,
sporadically missed appointments, and periodically refused medication dosages. See, e.g.,
AR at 368, 377, 413, 414-16, 421, 423. These inconsistent and unstable behaviors, however,
do not undermine Proano’s claim of a degenerative mental disability—instead, they
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substantiate it. Thompson v. Apfel, 1998 WL 720676, at *6 (S.D.N.Y. Oct. 9, 1998) (An
individual “who suffers from psychological and emotional difficulties may lack the
rationality to decide whether to continue treatment or medication.”). It is precisely this
grey area—namely, whether her disability caused these inconsistencies, or whether these
inconsistencies are the very evidence of her lacking disability—that is the underlying
rationale for the regulation’s requirement that an ALJ employ a medical advisor’s
assistance in determining onset dates for degenerative disability cases. SSR 83–20, 1983 WL
31249, at *1.
Additionally, the ALJ noted Proano’s employment history, but failed to
explain specific reasons for crediting or discrediting it. In 2005, Proano discontinued
working after her diagnosis of lymphoma. She returned to work for a one-month period
in 2008, but was terminated after found crying. In determining substantial gainful activity,
the ALJ must consider how well a claimant has performed in her employment. 20 C.F.R.
§ 416.973(b). “If [claimant] do[es] [her] work satisfactorily, this may show that [she is]
working at the substantial gainful activity level. If [she is] unable, because of [her]
impairments, to do ordinary or simple tasks satisfactorily without more supervision or
assistance than is usually given other people doing similar work, this may show that [she
is] not working at the substantial gainful activity level.” 20 C.F.R. § 416.973(b). Courts
have recognized that “employment is not proof positive of ability to work, since disabled
people, if desperate (or employed by an altruist), can often hold a job.” Wilder v. Apfel, 153
F.3d 799, 801 (7th Cir. 1998); see also Gentle v. Barnhart, 430 F.3d 865, 867 (7th Cir. 2005).
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The ALJ’s findings provide persuasive evidence that Proano was terminated
from her past work precisely because her disability precluded her from satisfactorily
performing requirements of the job; namely, maintaining composure and a professional
demeanor in the workplace. That evidence “may itself constitute evidence that the onset
date of disability occurred prior to the cessation of employment.” McCall, 2008 WL
5378121, at *17; see also Orzel v. Finch, 445 F.2d 150, 154 (7th Cir. 1971).
In sum, the ALJ’s decision did not comport with SSR 83-20. Not only did the
ALJ reject Proano’s alleged onset date, but to the extent that an onset date needed to be
inferred, the ALJ also failed to engage a medical advisor to assist with such a
determination, or to affirmatively develop the record through additional lay testimony.
At best, the ALJ provided a lengthy but ambiguous rationale for his decision to reject
Proano’s alleged onset date; even worse, however, the ALJ then arbitrarily selected the date
of Proano’s first visit with Dr. Davidov as the replacement onset date. This, too, was error.
See Telfair v. Astrue, 2007 WL 1522616, at *8 (S.D.N.Y. May 15, 2007); see also Felicie, 1998 WL
171460, at *4. “While the ALJ need not have specifically referred to SSR 83–20, he was
obligated to apply the analysis that it required; the failure to do so constitutes reversible
error.” McCall, 2008 WL 5378121, at *21.
Having determined that the ALJ failed to comply with SSR 83-20, the
remaining issue is whether the case should be remanded for further proceedings or
whether it should be remanded solely for a recalculation of benefits. Where a court
concludes that an ALJ has applied an improper legal standard, or where “further findings
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would so plainly help to assure the proper disposition of the claim,” remand for further
proceedings is appropriate. Butts v. Barnhart, 388 F.3d 377, 385-86 (2d Cir. 2004). By
contrast, “where the record provides persuasive proof of disability and a remand for
further evidentiary proceedings would serve no purpose,” the proper remedy is remand
solely for calculation of benefits. Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980). Remand
for further evidentiary proceedings here, however, does serve a purpose. Because the ALJ
failed to call upon a medical advisor, and because new evidence must be considered,
“further findings” will “assure proper disposition of the claim.” Butts, 388 F.3d at 385-86.
The Court acknowledges that “a remand for further evidentiary proceedings
(and the possibility of further appeal) could result in substantial, additional delay.” Caroll
v. Sec’y of Health and Human Servs., 705 F.2d 638, 643 (2d Cir. 1983). However, because
Proano at least began to receive benefits since June 3, 2009, and was not denied them
entirely, the Court finds that the hardship to her does not weigh heavily enough in favor
of remanding simply for recalculation of benefits. Accordingly, remand for further
administrative proceedings is appropriate.
B. Other Issues
Given the Court’s disposition of this case, the remaining three issues are
ancillary. First, Dr. Davidov’’s retrospective opinion dated September 12, 2011, now
undisputedly becomes part of the record. As such, the ALJ must consider that evidence
in reassessing Proano’s onset date. Tai-Fatt v. Barnhart, 2005 WL 3206552, at *12 (S.D.N.Y.

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Nov. 30, 2005) (noting that a retrospective opinion may shed light on the claimant’s
condition such that the agency may conclude that the claimant was entitled to benefits for
this period). In the event Dr. Davidov’s opinion is not sufficient, however, the ALJ must
discharge his duty to further develop the record by employing another medical advisor to
assist him in the determination.
Second, inclusion of this evidence in the record now, may also bolster the
credibility of Proano’s subjective complaints and, necessarily then, alter the ALJ’s
credibility determination. Lisa v. Sec’y of Dept. Of Health & Human Servs., 940 F.2d 40, 44 (2d
Cir. 1991).
Finally, the new evidence, similarly, may affect the ALJ’s RFC assessment
which, in turn, may alter whether it is appropriate to rely upon the Medical-Vocational
Guidelines. See Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir. 1999); see also Bapp v. Bowen, 802
F.2d 601, 605-06 (2d Cir. 1986) (“[W]here the claimant’s work capacity is significantly
diminished beyond that caused by his exertional impairment the application of the grids
is inappropriate. By the use of the phrase ‘significantly diminish,’ we mean the additional
loss of work capacity beyond a negligible one or, in other words, one that so narrows a
claimant’s possible range of work as to deprive him of a meaningful employment
opportunity.”).
IV
For the foregoing reasons, the Commissioner’s motion for judgment on the
pleadings is denied, and Proano’s motion is granted insofar as the case is remanded to the
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Commissioner for further administrative proceedings.

SO ORDERED.
/s/ Frederic Block__
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
October 9, 2013

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