incident with another patient, he was discharged to C.O.P.I.N.
House as "competent and employable" with an instruction for
continued psychotherapy (T. at 215-216).
Plaintiff was next admitted to VAMC from March 13, 1986, to
April 4, 1986. He complained of depression, continuing back pain,
and pain radiating down his legs. A neurology exam found no
abnormalities. An orthopedic consultation found L5-S1 sequential
instability and knee problems. Dr. Szymanski, plaintiff's
treating psychiatrist, diagnosed PTSD, alcohol abuse, and severe
psychosocial stressors due to financial problems. He found that
his highest level of adaptive functioning in the past year was
"fair" (T. at 196-199).
Dr. Eugene Cisek performed a consultative examination on July
22, 1987. His diagnosis was degenerative disc disease,
lumbosacral level with intermittent recurring radiculopathy (T.
at 251-253). His report gives a detailed evaluation of the
plaintiff's physical complaints at that time and his motor
Plaintiff was admitted to the acute inpatient psychiatric ward
at VAMC from March 3, 1987, to April 16, 1987. He stated that he
had been constructing a bomb to blow up the federal building due
to denial of his VA disability benefits. After burning his hand,
he decided to seek help. The diagnosis was PTSD and episodic
alcohol abuse. A physical examination revealed chronic low
backache secondary to degenerative joint disease of the L5 and S1
area. Recommendations were conservative, hot packs and pelvic
traction. Neurological examination indicated possible bilateral
S1 disease as well. Plaintiff was discharged to C.O.P.I.N. House
as unemployable, competent, and without malignancy (T. at
III. ALJ FINDINGS
The ALJ refused to give treating-physician weight to the
evidence given by Dr. Szymanski, plaintiff's treating
psychiatrist, for the period prior to the beginning of the
physician-patient relationship. The ALJ argued that Dr.
Szymanski's opinion concerning the pre-treatment period would be
speculative (T. at 23). The ALJ also refused to give
treating-physician weight to the evidence given by Barbara
Wolfrum, the social worker, or Sharon McGrath, a nurse and
director of C.O.P.I.N. House (T. at 24).
The ALJ found the plaintiff's testimony credible as to his PTSD
(T. at 27). He recognized the existence of plaintiff's PTSD and
his back and knee problems. However, he found that plaintiff's
condition following his 1981 back surgery improved "to the point
where he could have performed work of a light level of exertion."
He also found that plaintiff's PTSD increased in severity over
time, but probably did not become disabling until November, 1985,
the time when Dr. Szymanski began treatment of the plaintiff (T.
at 26-29). He argued that the plaintiff's PTSD could not have
been disabling since his return from Vietnam because the
plaintiff was able to work for a number of years during this
period and managed to complete three years of school (T. at 25).
Accordingly, the ALJ found the plaintiff disabled only as of
November, 1985, and denied his claim for disability benefits.
The initial question in this case is whether the ALJ correctly
applied the treating physician rule to the evidence given by Dr.
Szymanski. Where the treating physician rule has been applied
incorrectly, a decision by the Secretary denying benefits cannot
be upheld on the grounds that the denial is supported by
substantial evidence. Johnson v. Bowen, 817 F.2d 983, 986 (2d
The Secretary argues that the ALJ correctly refused to apply
the treating physician rule to Dr. Szymanski's opinion for the
period prior to the beginning of the plaintiff's treatment.
However, it is the rule in this circuit that the correct
application of the treating physician's rule depends on the
nature of the physician's relationship with the claimant, rather
than on its duration or coincidence with a claim for benefits.
Schisler v. Bowen, 851 F.2d 43, 45 (2d Cir. 1988). Once the
treating physician relationship is established, the physician's
is "entitled to significant weight. `[A] diagnosis of a
claimant's condition may properly be made even several years
after the onset of the impairment.'" Dousewicz v. Harris,
646 F.2d 771, 774 (2d Cir. 1981) (accepting a treating physician's
opinion that disability began five years prior to first
treatment), citing Stark v. Weinberger, 497 F.2d 1092, 1097
(7th Cir. 1974). A retroactive diagnosis must be "predicated upon
a `medically accepted clinical diagnostic technique'" and it must
establish "existence of a `physical impairment' prior to "the
expiration of insured status." Id.
The Secretary incorrectly relies on Arnone v. Bowen,
882 F.2d 34 (2d Cir. 1989), for the proposition that the treating
physician rule should not be applied to retroactive diagnoses. In
Arnone the court refused to accept a physician's opinion given
in 1987 that claimant's disability had continued since 1973. The
physician had treated the claimant during the earlier period from
1973 to 1974. However, he had not maintained a relationship with
the claimant through the intervening years. Claimant consulted
the doctor in 1987 only "at the suggestion of Arnone's counsel."
Id. at 40. As a result the court found no "ongoing
physician-treatment relationship" upon which to base application
of the treating physician's rule. Additionally, the physician's
opinion in Arnone was contradicted by testimony from four other
medical sources. The court refused to accept its validity.
Arnone, however, did accept the general principle that a
disability can be established without contemporaneous evidence.
The court stated that "[d]epending on the nature of the
disability," post-status evidence could be used to establish a
prior period of disability. Id. at 39.*fn1
In this case Dr. Szymanski had been treating the plaintiff for
18 months prior to his first submitting evidence. He had a
longstanding physician-patient relationship with the plaintiff.
There was no other person in as good of a position to evaluate
plaintiff's disability. Under these circumstances, his opinion as
to date of onset should have been given the weight required by
the treating physician's rule. The ALJ incorrectly dismissed his
opinion as "speculative" for the period prior to the beginning of
Once it is established that the treating physician's rule was
applied incorrectly, the Secretary's denial of benefits may not
be upheld based on the substantial evidence standard. The case
may be remanded to the Secretary for correct application of the
rule, or where proof of disability is sufficiently persuasive,
judgment may be entered for the claimant. Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987); Hamm v. Secretary, 704 F. Supp. 357,
362 (W.D.N.Y. 1989).
Under a correct application of the treating physician's rule,
the "treating physician's opinion on the subject of medical
disability, i.e. diagnosis and nature and degree of impairment,
is: (i) binding on the fact-finder unless contradicted by
substantial evidence; and (ii) entitled to some extra weight
because the treating physician is usually more familiar with a
claimant's condition than are other physicians. . . ." Schisler
v. Heckler, 787 F.2d 76, 81 (2d Cir. 1986) aff'd. in relevant
part, 851 F.2d 43 (2d Cir. 1988). "Substantial evidence is such
relevant evidence as a reasonable mind would accept as adequate
a conclusion." Schisler v. Bowen, 851 F.2d 43, 47 (2d Cir.
1988). Reports of non-treating, non-examining, or once-examining
physicians may not constitute substantial evidence. Sullivan v.
Secretary, 666 F. Supp. 456, 459 (W.D.N.Y. 1987); but see
Schisler, 851 F.2d at 46 (approving a draft Social Security
Ruling which allows reports of non-examining medical personnel to
override opinion of treating physician).
In this case, there is very little evidence which contradicts
the opinion of the treating physician, Dr. Szymanski, that
plaintiff has been disabled since November, 1980, due to his
PTSD. The ALJ pointed to the fact that plaintiff attended college
for three years and held and was able to work for a number of
years. He also found that plaintiff's PTSD increased in severity
as time went on. As a result, he concluded that the PTSD only
reached disabling proportions in 1985 (T. at 25-26).
These assertions do not constitute substantial evidence
contradicting Dr. Szymanski's opinion. Though indicating that
plaintiff's PTSD had been present since Vietnam, Dr. Szymanski,
in his September 12, 1988, letter, specifically stated that
plaintiff "has been totally disabled since November of 1980." (T.
at 324.) This opinion is not contradicted by evidence of the
plaintiff's activities prior to 1980. There is more than enough
evidence in the record to suggest that plaintiff's PTSD began in
1968 and thereafter progressed to the point of total disability
in 1980 when his back pain became worse. Plaintiff's experiences
with the police, the violent incident at Erie Community College,
his psychiatric hospitalizations in 1972 and 1975, his recurring
recollections of Vietnam while working as an electrician, and his
difficulty dealing with other people all support Dr. Szymanski's
Several other indications in the record might serve to
contradict Dr. Szymanski's opinion. Plaintiff was examined at the
VAMC Hypertension Clinic in April, 1980. Dr. Herman, the director
of the clinic, noted plaintiff's history of personality disorder
and found him "asymptomatic at present time." (T. at 237-38.)
This brief description, however, is not enough to constitute
substantial evidence. No psychiatric examination was conducted at
the Hypertension Clinic, and no psychiatric history was taken
relating to his experiences in Vietnam.
In May, 1981, plaintiff was described as competent and
employable in a VAMC termination summary. Again, this description
is suspect. Barbara Wolfrum, the social worker who signed the
report with a doctor, described the employability determination
as a mistake. She stated in a letter dated September 21, 1988,
that the summary was later corrected to read that no
determination of employability was made at that time. In her
professional judgment, the plaintiff "could not have held a job
at that time. . . . I definitely would not have recommended him
to any employer." (T. at 345-347, 424.)
In July of 1981, plaintiff was offered surgery on his L5-S1
herniated disc. Initially, he declined surgery and was discharged
from VAMC on July 2, 1981, as "employable." (T. at 426-427.)
Again, however, there is no indication of a psychiatric
examination of any kind on the discharge summary. Plaintiff was
at VAMC for treatment of a herniated disc, and the discharging
physicians were neurologists, not psychiatrists.
There are other indications that plaintiff sought or was
referred to vocational rehabilitation during 1982 and 1983 (T. at
228-29, 419). These unexplained references do not establish that
plaintiff was employable or not disabled during this period. Nor
do they constitute substantial evidence contradicting Dr.
Szymanski's determination of disability.
In November, 1985, plaintiff was again hospitalized at VAMC.
The discharge summary diagnoses his PTSD condition, but describes
him as "competent and employable." The summary was prepared and
signed by Dr. N.R. Kommareddi, a VAMC staff psychiatrist. His
report directly contradicts Dr. Szymanski's determination of
total disability. Due to the plaintiff's lengthy hospital stay
prior to preparation of the report which directly addresses
plaintiff's PTSD, Dr. Kommareddi's discharge summary does
constitute substantial medical evidence contradicting the opinion
of Dr. Szymanski.
However, under the treating physician's rule, Dr. Szymanski's
opinion is still entitled to extra weight because of his
continuing and longstanding relationship with the patient. Under
this second prong of the test, it is clear that the Secretary
cannot prevail. Dr. Szymanski began his physician-patient
relationship with the plaintiff at the very time of Dr.
Kommareddi's report. His care of the plaintiff continued for 18
months before his first May, 1987, assessment of plaintiff's
disability. If Dr. Szymanski's opinion is given extra weight in
the analysis, his opinion based on a longstanding relationship
with the plaintiff outweighs a contemporaneous opinion by
hospital staff without such a relationship. Additionally, Dr.
Szymanski's opinion is buttressed by the opinions of Sharon
McGrath, director of C.O.P.I.N. House, and Barbara Wolfrum, a
social worker. Consideration of the evidence leads to the
conclusion that the Secretary's denial of disability benefits is
not supported by substantial evidence.
Of secondary significance and in part used by the court in
rendering its decision is Social Security Regulation 83-20.
Social Security Reporting Service, Rulings: Supplementary
Pamphlet 1989 (West's 1983). This concerns methods for
establishing the onset of disability under Titles II and XVI. In
this regard, medical evidence serves as the primary element in
determining the onset of disability. However, according to this
regulation, inference as to the onset date of a disabiling
impairment can be determined by the medical evidence. In this
case, it appears that Dr. Szymanski, the treating physician, did
just that. He took into account various sources of documentation
to furnish additional evidence regarding the course of claimant's
condition. He then concluded, as SSR 83-20 indicates he might,
that on the bases of inference and medical evidence, claimant had
been totally disabled since November of 1980.
The ALJ incorrectly applied the treating physician's rule to
the facts of this case. Under a correct application of the rule,
the ALJ's decision is not supported by substantial evidence.
Because the evidence of plaintiff's disability is persuasive,
there is no need for remand in this case. Plaintiff's motion for
summary judgment is granted. This case is remanded to the
Secretary for the calculation of benefits.