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CASE v. SULLIVAN

August 5, 1992

RICHARD CASE, Plaintiff,
v.
LOUIS W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: CAROL E. HECKMAN

 This matter was referred to the undersigned by the Hon. Richard J. Arcara, to hear and report, in accordance with 28 U.S.C. § 636(b). For the reasons set forth below, I recommend that the Secretary's decision be reversed and the case remanded solely for calculation of benefits.

 Plaintiff initiated this action to review the final decision of the Secretary of Health and Human Services (the "Secretary") disallowing a period of disability and disability benefits, and the Secretary has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). The following constitutes the undersigned's proposed findings and recommendations for the disposition of said motion.

 FACTUAL AND PROCEDURAL BACKGROUND

 The administrative record, filed by the Secretary as part of his Answer (Item 6) to the Complaint (Item 1), reflects that Plaintiff, born January 18, 1943, has a high school equivalency diploma, and completed a year-and-a-half of college (T. 95). *fn1" From 1969 to 1979 he worked in Florida as an executive of a food service and automatic vending company. From 1979 to 1983 he worked for a company which sold over-the-counter drugs, and became the President of that company in 1980 (T. 56, 107, 222). In or around June, 1983, he stopped working as a result of increasing emotional problems, and sought psychiatric treatment under the care of Dr. R.E. Ballentine (T. 223, 462). Dr. Ballentine was Plaintiff's treating psychiatrist between September 13, 1983 and September 7, 1984 (T. 223).

 In or around August, 1984, Plaintiff moved to Buffalo to assume a job as a manager for the Canteen Corporation ("Canteen") at a salary of $ 48,000.00 per year (T. 222, 482). On August 28, 1984, he came under the psychiatric care of Dr. Howard C. Wilinsky (T. 482), who was Plaintiff's treating psychiatrist until at least March, 1986 (T. 288). Plaintiff was terminated from his employment with Canteen in or around July, 1985 (T. 121, 123). Since then, he has attempted to work as a car salesperson at various dealerships in the Buffalo area, but has not held any position for longer than five months (T. 96, 421).

 Plaintiff filed his application for disability insurance benefits on December 28, 1983, with the Orlando, Florida district office of the Social Security Administration ("SSA"). He alleges a period of disability beginning July 1, 1983 due to depression (T. 145-48). Plaintiff's claim was denied initially and on reconsideration (T. 149-50, 152-53). Plaintiff requested review of this determination, and a hearing was held in Orlando on June 5, 1984, before Administrative Law Judge ("ALJ") P.H. Hyden. In a decision dated September 4, 1984, ALJ Hyden found that Plaintiff was suffering from "a severe mental impairment" which prevented him from engaging in his past work or "any substantial gainful activity on a sustained basis . . .," and that Plaintiff was therefore disabled within the meaning of the Social Security Act as of July 1, 1983 (T. 211-14). On its own motion, the Appeals Council remanded the case to a different ALJ for further proceedings, based on its determination that ALJ Hyden's decision was not supported by substantial evidence (T. 216-18).

 On October 3, 1985, Plaintiff requested a new decision on his disability claim (T. 245), and was notified on April 7, 1986 that the SSA had determined him to be disabled as of August 1, 1985 (T. 246-47). This determination was upheld on reconsideration (T. 253). Pursuant to Plaintiff's request for review, a hearing was held before ALJ Nicholas Haragos in Buffalo, New York on August 10, 1987, at which Plaintiff testified and was represented by counsel. By decision dated September 21, 1987, ALJ Haragos found that there was insufficient evidence in the record to establish Plaintiff's disability at any time prior to August 1, 1985 (T. 63-73).

 Plaintiff requested review by letter dated October 14, 1987 (T. 61-62). By order dated July 11, 1989 (almost 21 months after Plaintiff's request for review), the Appeals Council vacated the ALJ's decision and remanded the case for further consideration of Plaintiff's claim that he was disabled as of July 1, 1983 (T. 42-45). A further hearing was held on February 23, 1990 (T. 85-144), also before ALJ Haragos. On April 19, 1990, ALJ Haragos determined that Plaintiff's mental impairment entitled him to a period of disability from July 1, 1983 to September 1, 1984, but that the record indicated "significant medical improvement in his condition" as of September, 1984, documented by the fact that Plaintiff returned to work as a manager of a food service company at a salary of $ 48,000.00 per year (T. 26-37). Accordingly, ALJ Haragos found that Plaintiff was not entitled to the period of disability between July 1, 1984 and August 1, 1985 (T. 30). The Appeals Council denied Plaintiff's request for review on October 18, 1990 (T. 6-7), rendering ALJ Haragos' April 19, 1990 decision as the final decision of the Secretary.

 DISCUSSION

 Plaintiff filed the instant action on December 13, 1990 (See Complaint, designated as "Item 1" on the Clerk's docket), seeking review of the Secretary's final decision pursuant to § 405(g) of the Act. *fn2" Plaintiff contends that the period between September 1984 and July 1985 was a "trial work period" under 42 U.S.C. § 422 and 20 C.F.R. § 404.1592 during which he retained his "disabled" status while he tested his ability to work. Plaintiff further contends that the Secretary's finding that Plaintiff was not disabled between September 1, 1984 and August 1, 1985 is not supported by substantial evidence since the record contains several diagnoses of his mental disorders sufficient to establish his inability to engage in his past, or any, occupation or to engage in substantial gainful activity of any type for the period beginning and continuing from July 1, 1983.

 The Secretary disputes Plaintiff's characterization of the period between September, 1984 and July, 1985 as a "trial work period," and contends that Plaintiff's earnings during that period create a presumption that Plaintiff was able to engage in substantial gainful activity. According to the Secretary, this presumption is sufficient to support his determination that Plaintiff was not disabled during that disputed period.

 The Social Security Act states that, upon review of the Secretary's decision by the district court, "the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. § 405(g)(1991); see n.2, supra. Substantial evidence is defined as evidence which a "'reasonable mind might accept as adequate to support a conclusion"'. Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991). Under these standards, the scope of judicial review of the Secretary's decision is limited, and the reviewing court may not try the case de novo or substitute its findings for those of the Secretary. Richardson, supra, 402 U.S. at 401. The court's sole inquiry is "whether the record, read as a whole, yields such evidence as would allow a reasonable mind to accept the conclusions reached" by the Secretary. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)(emphasis added).

 Upon review of the entire record before me, it is clear that substantial evidence does not support the conclusion that Plaintiff was not disabled during the period between September 1, 1984 and August 1, 1985. The only apparent evidence relied on by the ALJ in reaching this conclusion consists of a report by Dr. Ballentine (the psychiatrist who treated Plaintiff in Florida between September 13, 1983 and September 7, 1984) which was prepared in January, ...


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