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Appeals Council Amends Onset Date

July 1, 2007

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

Buffalo Bruce Caulfield strikes again!  Bruce, a paralegal at Neighborhood Legal Services in Buffalo, recently appealed a very mean-spirited decision, in which the ALJ found that his client could perform light work.  The Appeals Council found that his client was disabled as of her fiftieth birthday and remanded the claim for the consideration of the time period before that date.

The ALJ had begrudgingly acknowledged that the claimant, age 47 at the time of her application, had numerous severe impairments, including herniated and degenerative disc disease of the lumbar spine, osteoarthritis of the hips, osteoarthritis and bursitis of the right shoulder, status post arthroscopic surgery for supraspinatus tendon tear of the right shoulder, left carpal tunnel syndrome, irritable bowel syndrome, gastritis, asthma, depression, post traumatic stress syndrome, anxiety disorder, migraine headaches, and sinusitis.

Despite this litany, the ALJ appeared skeptical of the diagnoses, and refuted the restrictions given by the treating physician based on these diagnoses.  In fact, he went on to criticize the treating physician for providing “little actual treatment beyond prescribing large amounts medications [sic], 24 simultaneously, at last count…; i.e. almost $26,000 worth of medications paid by Medicaid over the past 3 ½ years.”  The ALJ even claimed that the treating physician did not provide a residual functional capacity assessment, although he had unequivocally opined that his patient was “totally disabled secondary to L5-S1 disc herniation and L4-L5 degenerative disc disease with a limited range of motion with pain on all extremities.  She functions at less than a sedentary level and needs rest breaks for fatigue.  She has not been medically stable or symptom free for any extended period of time despite compliance with treatment and multiple medications.”

The ALJ also rejected the limitations imposed by the claimant’s treating psychiatrist as well, who had recommended, at best, part-time or sheltered employment due to chronic symptoms of depression and anxiety.  The ALJ dismissed these limitations as based on the claimant’s subjective complaints.  He also dismissed the claimant’s allegations of hallucinations as “culturally common to Puerto Ricans, as noted in DSM-IV and were alleviated with medications.”  He found the claimant not credible, because, among other things, “it would appear altogether incredible that even after 5 years [in the U.S.] a person could not respond to” a basic question as to whether she could speak English or not.

Bruce pointed out these egregious statements on the part of the ALJ to the Appeals Council.  He argued that even if the treating physician’s statement, along with the employability reports provided to DSS, were not enough, the ALJ had a duty to close any perceived gap in the evidence, citing Rosa v, Callahan, 168 F.3.d 72 (2d Cir. 1999).  He also posited that the ALJ’s unfounded medical conclusion regarding the claimant’s hallucinations raised serious questions of possible racial bias.

Although the Appeals Council did not believe that the record supported a conclusion of racial bias, it found that the ALJ’s conclusion was not supported. It noted that the “medical records cited do not document a culture-bound syndrome diagnosis and the DSM-IV at pages 844-849 (Glossary of Culture-Bound Syndromes) does not clarify this point; thus the Administrative Law Judge’s conclusion is not supported.”  The Appeals Council also criticized the ALJ for failing to recontact the treating source, reiterating Bruce’s citation to the Rosa case.

Since the ALJ had found the claimant limited to light work, the Appeals Council found that she was under a disability as of her fiftieth birthday, relying on Medical-Vocational Rule 202.09.  In so doing, it made a finding, despite the ALJ’s references, that she is unable to communicate in English.  It mandated that under the vocational rules, the educational category of “illiterate or unable to communicate in English” had to be applied, despite the claimant’s actual years of education. It remanded the claim for further consideration of the three years prior to onset, based on the ALJ’s failure to evaluate completely the treating source opinions.  It also concluded that, as argued by Bruce, vocational testimony was necessary.

Although a return appearance before this particular ALJ may not be Bruce’s idea of fun, we have no doubt that he will continue to provide his client with outstanding representation.  We look forward to hearing the results of Round Two!


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