Bekas v. Commissioner of Social Security
Filing
25
ORDER granting in part and denying in part 14 Motion for Summary Judgment. For the reasons given in the attached order, the Commissioner's motion is denied, and Bekas's motion is granted to the extent that the matter is remanded to the agency for further proceedings consistent with this opinion. Ordered by Judge John Gleeson on 6/23/2014. (Aronoff, Peter)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ONLINE PUBLICATION ONLY
DEMETRIOS BEKAS,
Plaintiff,
- versus -
MEMORANDUM
AND ORDER
13-CV-6393
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
A P P E A R A N C E S:
DEMETRIOS BEKAS
16-48 201 Street
Bayside, NY 11360
Plaintiff pro se
LORETTA E. LYNCH
United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, NY 11201
By:
James R. Cho, Assistant U.S. Attorney
Amanda Katlowitz, student intern
Attorney for Defendant
JOHN GLEESON, United States District Judge:
Demetrios Bekas, representing himself, seeks review of the Social Security
Administration’s decision denying him disability benefits. Bekas alleges that he can no longer
work because a progressive neuropathy has interfered with his ability to walk, balance, and use
his extremities. An administrative law judge (“ALJ”) found that the evidence did not show that
Bekas was disabled by late 2003, the date when he was last eligible for Social Security disability
benefits. Because I find that the ALJ’s decision is not supported by substantial evidence and
rests on an incomplete record, the Commissioner’s motion for judgment on the pleadings is
denied, and Bekas’s is granted to the extent that the case is remanded for further proceedings
consistent with this opinion.
BACKGROUND
A.
Medical Background
Bekas, a college graduate, worked as an executive for a women’s fashion
company from the 1980s until December 2002, when it went out of business. R. 21-22.1 He was
paid about $52,000 a year for his work in 1996 and 2001-2002, but he reported no income for the
years 1997 to 2000, inclusive. R. 58. Although Bekas’s wage history indicates that he earned
almost $52,000 in 2009 as well, the ALJ found that this was not substantial gainful activity under
the law. See R. 11. Other than in 2009, he has not reported income since 2002. R. 58.
Bekas alleges that he became disabled starting in April 16, 2002, which
corresponds to a visit to his primary care physician, Dr. Plokamakis. See R. 144-47. Bekas
complained of spine pain, numbness, swollen hands, and dizziness; Dr. Plokamakis diagnosed
neuropathy and ordered some follow-up tests, but did not prescribe medication or other treatment
at that time. R. 144.
In a second treatment note dated February 7, 2003, Dr. Plokamakis wrote that
Bekas complained of numbness, dizziness, and back pain. R. 224. He diagnosed neuropathy and
dizziness or vertigo and recommended that Bekas see a neurologist.
Bekas provided the ALJ few relevant medical records for any year until 2008.
Some of the 2008 records were only provided to the Appeals Council (and were not before the
ALJ), including a note from Dr. Plokamakis and two clinical studies.
1
Citations of the form “R.” are to the administrative record, filed as ECF No. 12.
2
In January 2008, Dr. Plokamakis wrote a letter stating that Bekas had severe
neuropathy “as documented by neurologists at Montefiore Hospital.” R. 226. The note stated
that Bekas had trouble balancing, could not go up and down stairs, and due to numbness in his
legs had to walk and sit down every ten to fifteen minutes. Id.
In July of 2008, Bekas saw a neurologist, Dr. Itzhak Haimovic, who performed a
nerve conduction study. R. 307-12. Dr. Haimovic recommended a follow-up skin biopsy, which
was performed in September 2008. R. 295-96. That testing showed “significantly reduced
epidermal nerve fiber density, consistent with small-fiber neuropathy.” R. 295. Neither of these
reports was in the ALJ’s record.
The ALJ’s record did, however, include another neurologist’s evaluation, from
November 2008. Specifically, Bekas saw Dr. Michael Swerdlow for evaluation of progressive
neuropathy over the previous two years. R. 182-83. Dr. Swerdlow stated that Bekas had
previously had pain in his right toe and right knee, but that the pain spread to involve his left
foot. The pain had also spread to the fourth and fifth fingers of his left hand, with shock-like
pains. In addition, Bekas had experienced progressive loss of balance over the previous three
months. Clinical testing of Bekas’s reflexes and sensation showed “profound loss of position
sense” in Bekas’s lower limbs below the knee, lack of reflexes in the knees and ankles, and
decreased sensation (including touch and pin sense) in his lower and upper extremities, though
the doctor believed his strength was intact. Bekas also displayed ataxia when walking. Dr.
Swerdlow summarized his findings by stating that Bekas had a “striking picture of an
asymmetrical predominantly sensory neuropathy.” He was uncertain of the cause. R. 183. Dr.
Swerdlow admitted Bekas to Montefiore Medical Center in the Bronx for inpatient diagnostics
and treatment. See R. 183; R. 154-81 (November 2008 inpatient records).
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Subsequent evaluation, including an epidermal nerve fiber density study
performed in September 2008 and signed by Dr. David Laks, R. 295-96, a nerve conduction test
administered by Dr. Ian Stein in mid-2011, R. 201-09, and a nerve biopsy referred to by Dr.
Plokamakis in a December 2010 letter, R. 143, also demonstrated that Bekas had a serious
neuropathy. Dr. Stein also wrote a letter, dated October 10, 2012, in which he opined that
Bekas’s neuropathy completely prevented him from working. R. 231-32. (This letter was also
not before the ALJ.)
B.
Bekas’s Daily Activities
Bekas provided a written function report dated October 24, 2011, and he also
testified before the ALJ at a May 22, 2012 hearing. In his written statement, Bekas reported
numbness in his legs and left hand. He helped care for a dog, but said he was not able to run a
business; he could not lift objects, bend down, kneel, or squat; could not drive or perform
household chores; and could not dress himself. R. 77-78. He could walk up to two blocks with a
cane, but he could stand only for five to ten minutes, and could only sit for one to two hours
without needing to stretch or lie down. He handled his finances and socialized, and he had no
difficulty paying attention, following instructions, or getting along with people.
At the hearing, Bekas stated that he had had intermittent numbness in both of his
feet and his left hand beginning in 2002. R. 28. The numbness came several times a day and
lasted for an hour or an hour and a half. His symptoms interfered with his ability to work by
making him dizzy or vertiginous, and by preventing him from lifting things or from driving. R.
29. He also had difficulty balancing. R. 32.
C.
Procedural History
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Bekas protectively filed an application for disability insurance on September 13,
2011; he claimed that he had been disabled beginning April 16, 2002. After the application was
initially denied, Bekas had a hearing before the ALJ on May 22, 2012. The ALJ’s September 25,
2012 opinion denied Bekas’s claim primarily because the ALJ found that Bekas had not shown
he was disabled by his date last insured, which was in December 2003. Bekas compiled
additional evidence of his disability and sought, but was denied, an appeal before the agency’s
Appeals Council. He filed this action on November 6, 2013.2 I heard argument on June 20,
2014.
DISCUSSION
A.
The Legal Standards
A claimant seeking disability insurance benefits must establish that, “by reason of
any medically determinable physical or mental impairment which . . . has lasted or can be
expected to last for a continuous period of not less than twelve months,” 42 U.S.C.
§ 1382c(a)(3)(A), she “is not only unable to do [her] previous work but cannot, considering [her]
age, education, and work experience, engage in any other kind of substantial gainful work which
exists in the national economy,” id. § 1382c(a)(3)(B).
The Social Security regulations direct a five-step analysis for the Commissioner
to evaluate disability claims:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not, the
[Commissioner] next considers whether the claimant has a “severe
impairment” which significantly limits his physical or mental
ability to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is listed in
Appendix 1 of the regulations. If the claimant has such an
2
Bekas initially filed the case in the Southern District of New York as No. 13-cv-7891, but it was
transferred to this district on November 18, 2013, since Bekas resides in Queens. See ECF No. 6.
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impairment, the [Commissioner] will consider him disabled
without considering vocational factors such as age, education, and
work experience; the [Commissioner] presumes that a claimant
who is afflicted with a “listed” impairment is unable to perform
substantial gainful activity. Assuming the claimant does not have
a listed impairment, the fourth inquiry is whether, despite the
claimant’s severe impairment, he has the residual functional
capacity to perform past work. Finally, if the claimant is unable to
perform his past work, the [Commissioner] then determines
whether there is other work which the claimant could perform.
DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998) (internal quotation marks
omitted) (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)); see also 20 C.F.R.
§ 404.1520(a)(4)(i)-(v) (setting forth this process). The claimant bears the burden of proof in the
first four steps, the Commissioner in the last (but only to show that jobs exist in the national or
local economies that the claimant can perform given her RFC and vocational factors). GreenYounger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003); 68 Fed. Reg. 51153, 51155 (Aug. 26,
2003).
The Commissioner decides whether the claimant is disabled within the meaning
of the Act. 20 C.F.R. § 404.1527(e)(1). Under 42 U.S.C. § 405(g), I review the Commissioner’s
decision to determine whether the correct legal standards were applied, and whether the decision
is supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). If
the record contains evidence which “a reasonable mind might accept as adequate to support [the
Commissioner’s] conclusion,” this Court may not “substitute its own judgment for that of the
[Commissioner] even if it might justifiably have reached a different result upon a de novo
review.” Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (quotation marks omitted).
B.
Bekas’s Pro Se Status
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Both before the agency and now in this court, Bekas has elected to represent
himself, without the benefit of an attorney. Bekas’s pro se status affects how I assess whether
the agency complied with its legal obligations and how I construe his pleadings before me.
When an Article III court reviews proceedings from a pro se Social Security
petitioner, it
must first satisfy [itself] that the claimant has had a full hearing
under the Secretary's regulations and in accordance with the
beneficent purposes of the Act. The need for this inquiry arises
from the essentially non-adversarial nature of a benefits
proceeding: the Secretary is not represented, and the ALJ, unlike a
judge in a trial, must himself affirmatively develop the record.
Where, as here, the claimant is unrepresented by counsel, the ALJ
is under a heightened duty to scrupulously and conscientiously
probe into, inquire of, and explore for all the relevant facts. A
reviewing court must determine whether the ALJ adequately
protected the rights of a pro se litigant by ensuring that all of the
relevant facts are sufficiently developed and considered.
Echevarria v. Secretary of Health and Human Services, 685 F.2d 751, 755 (2d Cir. 1982)
(internal citations, quotation marks, and alterations omitted).
Furthermore, I must read Bekas’s pleadings in this court generously: “A
document filed pro se is to be liberally construed and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.
Accordingly, the court interprets the complaint to raise the strongest arguments that it suggests.”
DeJesus v. Colvin, 11-CV-5864 DLI, 2013 WL 5532700, at *1 (E.D.N.Y. Sept. 30, 2013)
(internal quotation marks, citations, and alterations omitted).
C.
Application
Although Bekas is not a lawyer, his papers are clear, and the main argument he
raises now simply responds to the basis for the ALJ’s adverse decision below: that the ALJ erred
in weighing the evidence of the onset date of Bekas’s disability. Because I agree with that
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argument, I address it first, and I will leave for brief consideration at the end the remaining
arguments.
There is no dispute that Bekas’s date last insured is December 31, 2003. See
Bekas Mot. ¶ 6, ECF No. 14 (citing R. 11). The ALJ’s decision holds that Bekas did not show
that he was incapable of working by that date. See R. 12-15. Surprisingly, however, the ALJ’s
decision also seems to call into question whether Bekas was unable to work even at a later date
(i.e., around the time of Bekas’s 2012 hearing). Specifically, the decision states:
While it is reasonable to find that the claimant’s alleged
impairments would preclude more than the full range of work, the
objective evidence does not establish that the claimant would be
precluded from all work activity. The claimant is fully capable of
performing at the very least the full range of sedentary work. He is
able to ambulate, stand, sit 6 out of an 8 hour work day, lift/carry
5Lbs frequently, and 10Lbs occasionally, he can bend, kneel, squat
and has no difficulty with gross and fine manipulation and has no
non-exertional impairments.
R. 14. These findings, phrased in the present tense, are at odds with the medical evidence
documenting the plaintiff’s physical condition at the time of the 2012 hearing. About a month
after the ALJ’s September 25, 2012 written decision, Bekas obtained a letter from Dr. Stein, the
neurologist, who wrote that the ALJ’s findings about Bekas’s limitations and capabilities were
“not supported by any medical objective finding.” R. 232. And indeed the ALJ himself stated
during the May 22 hearing that
[T]here’s no question that the record reflects that you have a severe
disability. I don’t have any problem with that. The difficulty I’m
having, sir, is the year of 2002 and 2003. That’s my only problem.
R. 32.
It is thus possible that the ALJ’s use of the present tense in his written decision
was inadvertent. But, as Bekas points out, his disability claim is premised on a progressive,
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degenerative condition. Bekas’s current impairments, and the history of the development of his
symptoms, are relevant to findings about his condition in 2002 and 2003. In other words, the
ALJ’s potential oversight is logically encompassed by Bekas’s primary argument.
Bekas extensively cites Social Security Rule 83-20, which sets standards for
determining onset of disability and is “binding on all Social Security Administration decisionmakers.” Gibson v. Astrue, No. 07-CV-2845, 2009 WL 1181251, at *2 (S.D.N.Y. Apr. 30,
2009) (internal citations quotation marks and brackets omitted). The rule devotes special
attention to cases, such as Bekas’s, in which precise evidence of onset is not available, and the
onset date must be inferred. Because of the importance of these provisions, I quote at length:
With slowly progressive impairments, it is sometimes impossible
to obtain medical evidence establishing the precise date an
impairment became disabling. Determining the proper onset date is
particularly difficult, when, for example, the alleged onset and the
date last worked are far in the past and adequate medical records
are not available. In such cases, it will be necessary to infer the
onset date from the medical and other evidence that describe the
history and symptomatology of the disease process.
. . . How long the disease may be determined to have existed at a
disabling level of severity depends on an informed judgment of the
facts in the particular case. This judgment, however, must have a
legitimate medical basis. At the hearing, the administrative law
judge (ALJ) should call on the services of a medical advisor when
onset must be inferred. If there is information in the file indicating
that additional medical evidence concerning onset is available,
such evidence should be secured before inferences are made.
If reasonable inferences about the progression of the impairment
cannot be made on the basis of the evidence in file and additional
relevant medical evidence is not available, it may be necessary to
explore other sources of documentation. Information may be
obtained from family members, friends, and former employers to
ascertain why medical evidence is not available for the pertinent
period and to furnish additional evidence regarding the course of
the individual’s condition. . . . The impact of lay evidence on the
decision of onset will be limited to the degree it is not contrary to
the medical evidence of record.
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SSR 83-20, 1983 WL 31249, at *2-3.
Although the Secretary argues to the contrary, the ALJ did not follow these
directives. The Secretary contends that the ALJ was not required to call a medical expert or
obtain lay testimony from friends or family members because the ALJ permissibly found that no
medical evidence from prior to 2008 (or at the earliest, 2007) supports a finding of disability.
Thus, the ALJ had a “five year margin of error” in making the findings about 2008. Def.’s Reply
at 4. But in the context of a progressive medical condition with no readily ascertainable onset
date, that sort of guesswork – even with a large margin of error – will not do. Put another way,
because of the nature of Bekas’s condition, the ALJ could not conclude without expert advice
that Bekas was not disabled and therefore not obtain expert advice. Instead, expert advice was
necessary to determine whether he was disabled. A medical expert would be able to shed light
on, for example, the question whether the absence of medical evidence from the 2003 to 2007
period is consistent with a seriously debilitating condition, and whether it is medically possible
to infer Bekas’s 2003 condition from the existing medical records.
Furthermore, there may be additional evidence for the ALJ to develop on remand.
The existence of that additional evidence is suggested by the materials Bekas submitted to the
Appeals Council after the ALJ’s denial.3 First, Dr. Stein’s October 2012 letter refers to records
from other medical sources, including Drs. Latov, Maccabee, Karides, and Herskovits, which
purportedly “span[] a period from 2002 to 2010.” See R. 231. Very little evidence from these
sources otherwise appears in the record, even though Dr. Stein apparently relies on it. Second,
3
The additional evidence is both probative on its own, and suggests the possibility of further
evidence that might bear on the decision. It therefore meets the relevant standard for new evidence submitted to the
Appeals Council. See Fox v. Barnhart, 137 F. App’x 395, 396 (2d Cir. 2005) (unpublished) (“Additional evidence
submitted after an ALJ’s determination must be both relevant to the claimant's condition during the time period for
which benefits were denied, and present a reasonable possibility that [it] would have influenced the [ALJ] to decide
the claimant's application differently.”) (internal quotation marks omitted).
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the ALJ developed little evidence from lay sources. Following the ALJ’s order, Bekas submitted
a declaration from his wife, who stated that “[b]y January 2003, the episodes crescendo to the
level that he was forced to quit of all work activities because of the excruciating pains and
numbness in his legs.” R. 322. Testimony about Bekas’s condition between 2002 and 2008
from the claimant’s family members and friends could, as Rule 83-20 suggests, be helpful “to
ascertain why medical evidence is not available for the pertinent period and to furnish additional
evidence regarding the course of the individual’s condition.” Indeed, wherever the record is
incomplete, obtaining additional testimony is the ALJ’s duty: “where there are deficiencies in
the record, an ALJ is under an affirmative obligation to develop a claimant’s medical history
even when the claimant is represented by counsel or by a paralegal.” Rosa v. Callahan, 168 F.3d
72, 79 (2d Cir. 1999) (internal quotation marks and alterations omitted).
I do not mean to suggest that the agency will face an easy task on remand, and it
is not at all clear to me that Bekas will be able to demonstrate disability during the relevant time
period. An absence of medical treatment can certainly be probative of a condition’s seriousness.
See, e.g., Armone v. Bown, 882 F.2d 34, 39 (2d Cir. 1989). I also acknowledge that Bekas’s
explanation of his earning history was less than convincing. However, given Bekas’s present
condition, the difficulty of assessing the subjective component of his symptoms, and the
evidentiary deficiencies discussed above, remand for further proceedings is appropriate here.
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CONCLUSION
For the foregoing reasons, the Commissioner’s motion for judgment on the
pleadings is denied, and Bekas’s motion is granted to the extent that the case is remanded for
further proceedings consistent with this opinion.
So ordered.
John Gleeson, U.S.D.J.
Dated: June 23, 2014
Brooklyn, New York
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