Opinion
97 Civ. 5154 (CM).
November 21, 2000.
DISMISSAL OF COMPLAINT UPON SUGGESTION OF DEATH
On July 19, 2000, Defendants Eli Fine and Eli B. Fine, C.P.A., P.C. filed a Notice of Suggestion of Plaintiff's Death pursuant to Fed.R.Civ.P. 25(a), together with proof of service on all parties. Fed.R.Civ.P. 25(a) provides, "Unless the motion [to substitute proper parties] is made not later than 90 days after the death is suggested upon the record. . . .the action shall be dismissed as to the deceased party." No such motion has been made to date. Accordingly, the complaint in this action is dismissed, with prejudice and without costs.
As the Third Party Complaint appears to have been rendered moot by the dismissal of this action, Third Party Plaintiffs and Third Party Defendants are directed to send the Court, within 5 business days, a stipulation of dismissal.
HASSAN v. APFEL (S.D.N.Y. 2000).
Halema HASSAN, Plaintiff, v. Kenneth APFEL, as Commissioner of Social Security, Defendant. 99 Civ. 10572 (BSJ) (JCF). United States District Court, Southern District of New York. November 21, 2001.
MEMORANDUM AND ORDER
JAMES C. FRANCIS IV, United States Magistrate Judge.
The plaintiff, Halema Hassan, brings this action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking review of a determination of the Commissioner of Social Security (the "Commissioner") denying her application for Disability Insurance Benefits. Ms. Hassan contends that she was disabled from June 1992 to April 1993 because of a severe episode of depression which led her to attempt suicide and required her hospitalization in September 1992. In her complaint, Ms. Hassan alleges that the Commissioner's determination that she was not disabled is not supported by substantial evidence. The parties agreed to refer this case to me for final disposition under 28 U.S.C. § 636(c), and each has now moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons that follow, the Commissioner's determination is vacated and the claim is remanded to the Social Security Administration for further proceedings.
Background
Halema Hassan is a fifty-seven year old resident of the Bronx, New York. (Tr. at 43, 46). Ms. Hassan has a Master's degree and teaches history at the Theodore Roosevelt High School in the Bronx, where she started as a substitute teacher in February 1986. (Tr. at 77, 81). Prior to becoming a teacher, she was a social worker from 1970 to 1974 and worked as a human resources administrator at a bank from 1975 to 1984. (Tr. at 77). She was married for five or six years, from 1966 to sometime in 1971 or 1972. (Tr. at 45).
"Tr." refers to the Administrative Record filed with the Commissioner's answer.
Ms. Hassan claims she started suffering from major depression and an anxiety disorder in 1968 and has been treated by two physicians for these illnesses. (Tr. at 73-74). These conditions, which the plaintiff traces to work-related stress, have led to several suicide attempts and hospitalizations. (Tr. at 73, 75, 399). The latest suicide attempt occured on September 14, 1992, a week after she returned to work at the beginning of a new school year. (Tr. at 83, 400). Ms. Hassan swallowed 180 pills of Nortriptiline, the anti-depressant she was taking at the time. (Tr. at 33, 348, 356). She lapsed into a coma and was taken to Montefiore Medical Center where she spent nine days in the intensive care unit before being transferred to the psychiatric ward. (Tr. at 33, 75, 98). Ms. Hassan was finally released from the hospital on December 1, 1992. (Tr. at 86). She returned to work on January 3, 1993, initially performing clerical duties. (Tr. at 81-82). Ms. Hassan started teaching again sometime in February 1993 and assumed her normal teaching load in April 1993. (Tr. at 25-26, 82; Affidavit of Halema Hassan dated June 8, 2000 ("Hassan Aff."), at 1).
Ms. Hassan applied for Disability Insurance Benefits on October 21, 1992, claiming the date of her latest hospitalization — September 14, 1992 — as the first day on which she became disabled. (Tr. at 43). She was initially awarded benefits on January 6, 1993, but her disability claim was reconsidered and denied on November 1, 1994. (Tr. at 56, 61). In denying the claim, the Social Security Administration reasoned that her return to work in January 1993 indicated that she was able to engage in substantial gainful activity and was not "disabled for [at least twelve months] to qualify for benefit payments under the law." (Tr. at 61).
In a letter dated November 14, 1994, the plaintiff's attorneys notified the Social Security Administration of her intent to appeal the denial and to seek readjustment of the onset date of her disability. (Tr. at 413). However, on August 8, 1995, when Ms. Hassan finally requested a hearing before an Administrative Law Judge ("ALJ"), her application mentioned only that she sought to modify the onset date to May 1992. (Tr. at 65).
Administrative Law Judge Sean P. Walsh held a hearing on September 26, 1996, and, on October 21, 1996, he issued a decision readjusting the onset date to June 1, 1992 and affirming the Commissioner's denial of Ms. Hassan's disability claim. (Tr. at 20-42, 13-16). Judge Walsh found that
although there [was] evidence to suggest that the claimant could be considered disabled as of June 1, 1992, as she requested, she nonetheless returned to substantial gainful activity within twelve months of this date and could not be considered disabled for purposes of entitlement to social security disability benefits.
(Tr. at 14). This determination became final when the Appeals Council denied the plaintiff's request for review. (Tr. at 4-5).
Discussion
A. Standard of Review
The Commissioner's determination must be affirmed if it is not the result of a legal error and is based on substantial evidence. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); see also 42 U.S.C. § 405(g) (providing that "[t]he findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive[.]"); Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (holding that the Court must first review the ALJ's decision for correct legal principles before applying the substantial evidence standard to uphold a finding of no disability); Lugo v. Chater, 932 F. Supp. 497, 500-01 (S.D.N.Y. 1996). 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." Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation and citation omitted).
B. Analytical Framework
To qualify for benefits as disabled under the Social Security Act, an individual must be unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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 ALJ follows a five-step process to determine whether a claimant is disabled. See 20 C.F.R. § 404.1520(b)-(f). First, the ALJ determines if the claimant is engaged in substantial gainful activity. See 20 C.F.R. § 404.1520(b). If she is not so engaged, the ALJ must decide if the claimant has a severe impairment, one which "significantly limits [the claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). If the claimant's impairment is severe and is either listed in 20 C.F.R. Part 404, Subpt. P, App. 1, or is equivalent to a listed impairment, the claimant must automatically be found "disabled." See 20 C.F.R. § 404.1520(d). If the claimant's impairment is severe but is not listed or equal to a listed impairment, a finding of "not disabled" is required if her residual functional capacity permits her to do the work she did in the past. See 20 C.F.R. § 404.1520(e). If the claimant is unable to perform her past work, the Commissioner must decide if there is other work that she is able to perform. 20 C.F.R. § 404.1520(f); see also Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). In this case, the ALJ ended his inquiry at the initial step in this process after he found that Ms. Hassan engaged in substantial gainful activity when she returned to her job as a school teacher. (Tr. at 14).
C. Analysis
1. ALJ's Scope of Review
Ms. Hassan argues that the proceedings before the ALJ were flawed because the ALJ went beyond the sole issue she presented in her request for a hearing: the date of onset of her disability. (Plaintiff's Memorandum of Law ("Pl. Memo."), at 3-4). However, the ALJ has the power to review de novo "all the issues brought out of the initial, reconsidered, or revised determination" that were unfavorable to the claimant. 20 C.F.R. § 404.946(a); see also Heckler v. Day, 467 U.S. 104, 106-07 (1984) (describing review process); Johnson, 817 F.2d at 935; Hearns v. Sullivan, No. 92 Civ. 6137L, 1992 WL 360545, at *2 (W.D.N.Y. 1992). Here, the denial of benefits in the Social Security Administration's revised determination put squarely at issue the plaintiff's disability status under the Social Security Act. (Tr. 61). Judge Walsh was thus acting well within his authority in determining whether Ms. Hassan's disability met the Social Security Act's durational requirement.
2. Ms. Hassan's Return to Work
Ms. Hassan next argues that she could return to work on a trial basis for up to nine months without being disqualified from receiving benefits, as long as she had been actually disabled for at least five months. Therefore, she claims that she was entitled to disability benefits for the period prior to her return to work, as well as for the next four months. (Compl. ¶ 15; Pl. Memo., at 3). The Commissioner contends, in turn, that the Social Security Administration's original decision granting benefits to the plaintiff was erroneous because, under Social Security Ruling 82-52 ("SSR 82-52" or the "Ruling"), the plaintiff's claim should have been denied from the outset on the ground that Ms. Hassan returned to work before the twelve-month period was over and before she had been adjudged disabled. (Memorandum of Law in Support of the Commissioner's Motion for Judgment on the Pleadings ("Commissioner's Memo."), at 7). Thus, according to the Commissioner, the subsequent denial simply corrected an earlier mistake.
A claimant may return to work on a trial basis after she has applied for benefits provided that five months have elapsed since the onset of the injury (which is when the claimant becomes entitled to receive benefits). See 42 U.S.C. § 422(c)(3); 20 C.F.R. § 404.1592(e);see also Salamalekis v. Commissioner of Social Security, 221 F.3d 828, 834 (6th Cir. 2000); Hunter v. Department of Health and Human Services, 851 F. Supp. 75, 77 (E.D.N.Y. 1994); McMillen v. Califano, 443 F. Supp. 1362, 1367 (N.D.N.Y. 1978). If a claimant does return to work, the trial work period may last for up to nine months. See 42 U.S.C. § 422(c)(4). However, under SSR 82-52, if a claimant returns to work within a year from the onset of the impairment but before approval of disability benefits, the claim must be denied. SSR 82-52, 1982 WL 31376, at *2 (S.S.A. 1982).
Ms. Hassan returned to work on January 3, 1993, only three days before she was adjudged disabled and well before the twelve month period after onset was set to expire. Thus, she came within the ambit of SSR 82-52. Nevertheless, the majority of courts have refused to give any deference to the Ruling, finding that it conflicts with Social Security Act's plain language, the statute's remedial purpose, and the principles behind the trial work period. See Salamalekis, 221 F.3d at 834; Newton v. Chater, 92 F.3d 688, 694 (8th Cir. 1996); Mulderig v. Sullivan, No. 91 Civ. 6066, 1993 WL 22152, at *2-3 (S.D.N.Y., Jan. 28, 1993); see also Fabel v. Shalala, 891 F. Supp. 202, 206-07 (D.N.J. 1995); Hunter, 851 F. Supp. at 77.
The Social Security Act allows a claimant to return to work if her disability was expected to last for twelve months and she has actually been disabled for five months, "regardless of whether the agency has made an award determination and regardless of whether the impairment has actually lasted [twelve] months." Salamalekis, 221 F.3d at 834 (citations omitted). The provision for a trial work period was designed to encourage individuals with disabilities to attempt to rejoin the work force. See Mulderig, 1993 WL 22152, at *3. In contrast,
The [Ruling's] policy rewards apathy, as claimants come to realize that it is prudent to stay in bed probably until the first anniversary of their disability, but certainly no sooner than the date upon which the agency stamps its approval on the disability claim. Congress could not have intended this result — deterring claimants who wish to return to work from doing so, especially if they do not do so because of the agency's inefficiencies.Hunter, 851 F. Supp. at 79. Furthermore, "limiting the trial work period to those receiving benefits, although administratively convenient, is inequitable" because an individual who filed his claim in an overloaded office of the Social Security Administration would be unable to go back to work for a much longer period of time than a claimant who filed in an office with a lesser load. Mulderig, 1993 WL 22152, at *3 (citation omitted). Thus, the Commissioner relied on an erroneous legal standard in his categorical denial of Ms. Hassan's application.
3. Actual Duration of Ms. Hassan's Disability
Ms. Hassan seeks benefits for a period less than a year, from June 1992 through April 1993. (Compl. ¶ 12, ¶ 15). Whether or not her depression was expected to last for more than twelve months in June 1992, Ms. Hassan concedes that in April 1993 her condition improved to such a degree that she was able to resume her full teaching load. (Hassan Aff., at 1). The Commissioner points to the fact that Ms. Hassan returned to work before twelve months from the onset of her disability had expired. He then argues that this fact alone should, in hindsight, preclude any finding that her disability was expected to last for more than a year.
The durational requirement embedded in the Social Security Act's definition of disability may have been intended to screen out short-term impairments. See Hunter, 851 F. Supp. at 77 (citing S. Rep. No. 404, 89th Cong., 1st Sess., at 98-99 (1965)). However, the Social Security Act's "plain language . . . requires only an expectation of a disability that will last at least a year, not an actual disability of a year's length."Id.; see also Sierakowski v. Weinberger, 504 F.2d 831, 834 (6th Cir. 1974) (per curiam).
The Commissioner's retrospective reasoning may be appropriate where the claimant's return to work before the expiration of a one- year period raises the possibility that the initial assessment of the claimant's expected disability was "reached in bad faith, on insufficient evidence, or was in any way unreasonable." Sierakowski, 504 F.2d at 834. However, there is no indication that any of these factors are present in this case. Accordingly, it was inappropriate for the ALJ to assume that Ms. Hassan was not disabled solely because she returned to work less than a year after the onset at her impairment.
The ALJ, then, must determine whether, at the time of onset, the claimant's impairment was expected to last for more than twelve months. Yet, the Administrative Record here contains scant evidence on this issue. Generally, the ALJ has an affirmative duty to develop the record.See Rosa, 168 F.3d at 79; Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996). In this case, Judge Walsh may not have proceeded to explore evidence related to Ms. Hassan's disability status because he determined that she was engaged in substantial gainful activity, thus terminating his inquiry at the very first stage of the five-step process. See 20 C.F.R. § 404.1520(b). Nevertheless, as discussed above, this determination was legally erroneous, and the ALJ remains under a duty to develop the record on the issue of expected duration of plaintiff's disability.
Conclusion
For the reasons set forth above, the defendant's motion for judgment on the pleadings is denied and the plaintiff's motion is granted to the extent that the case is remanded to the Social Security Administration so that the ALJ can properly develop the record and make a determination consistent with this Memorandum and Order. The Clerk of Court shall enter judgment accordingly.
SO ORDERED.