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Manago v. Barnhart

June 18, 2004


The opinion of the court was delivered by: Weinstein, Senior District Judge


I. Introduction

Claimant, Joseph (sometimes referred to as Joanna) Manago, appeals from a decision by the Administrative Law Judge ("ALJ") denying a request for disability insurance benefits. The claim alleges inability to work because of suffering from severe depression, anxiety, and post-traumatic stress secondary to gender identity disorder/transsexualism.

Although no decision in which disability benefits were sought on this ground has been cited, the case arises at a time when legal protections for transsexuals are being expanded. See, e.g., Smith v. Salem, Ohio, 2004 WL 1745840 (6th Cir. Aug. 5, 2004) (allegations that employee was discriminated against based soley on his identification as transsexual are actionable under Tilte VII); Schwenk v. Hartford, 204 F.3d 1187, 1200 (9th Cir.2000) (protections of the Gender Motivated Violence Act extend to transsexuals); Rentos v. Oce-Office Systems, 1996 WL 737215, at *8-9 (S.D.N.Y.1996) (transsexuals protected from discrimination under New York State and City human rights laws); Lie v. Sky Publishing Corp., 2002 WL 31492397, at *5 (Mass.Super.2002) (transsexual plaintiff had established prima facie case of discrimination based on sex and disability under state law prohibiting employment discrimination); Enriquez v. West Jersey Health Systems, 342 N.J.Super. 501, 777 A.2d 365, 373 (2001) (transsexuals protected by state law prohibitions against sex and disability discrimination); Cal. Gov't Code s 12949 (employer should allow employee to dress consistently with his or her gender identity); 2004 N.M. Laws Ch. 115 (prohibiting distinctions on the basis of gender identity in public accommodation and housing); R.I. Gen. Laws s 34-37-4 (prohibiting discrimination in housing accommodation on the basis of gender identity or expression); N.Y.C. Admin. Code s 8-102(23) (amending the New York City Human Rights Law to prevent discrimination based on an individual's gender identity, self-image, appearance, behavior, or expression).

This case involves a limited issue--fixing the correct onset date of total disability based upon mental problems for social security purposes. It is contended that the ALJ failed to apply the proper legal principles when determining the onset and severity of claimant's mental impairments; that the ALJ did not address the significance of a report by an expert that claimant had been completely incapable of withstanding the pressures of work since 1986; and that the record before the ALJ overwhelmingly supports a finding as a matter of law that claimant has met the definition of disability. Claimant moves for an order reversing the ALJ's final decision and remanding the case for calculation of benefits.

The Commissioner acknowledges that the ALJ committed legal error by not adequately considering the available medical evidence in determining that claimant was not disabled prior to June 1990. The government moves to remand the case for further proceedings. It opposes claimant's motion for a judgment on the pleadings on the ground that the record does not establish satisfaction of the statutory definition of disability as of the date when total disability is alleged to have occurred.

For the reasons stated below, claimant's motion for a judgment on the pleadings is granted and the case is remanded for calculation of benefits.

II. Facts

A. Personal History

Claimant, who has a Master's Degree and has worked as a high school and college biology teacher, stopped teaching on December 23, 1986 and thereafter collected unemployment benefits. Tr. at 38-39, 41, 49, 51. No steady job has been held since then, although claimant has given music lessons from home. Tr. at 155.

Claimant testified to cessation of work in 1986 because of extreme anxiety and depression relating to a gender identity problem. Tr. at 62 -63. Claimant felt like a woman in a man's body. Tr. at 44. According to claimant, these feelings began in early childhood between the ages of 5 to 7 years. Tr. at 41. By late 1986, claimant could not concentrate, experienced insomnia, could not bear the male identity, and eventually stopped working because it was too painful to wear men's clothes to work. Tr. at 44, 63. Thereafter, claimant went into a depression and stayed at home. Tr. at 46.

Claimant was married in May 1987 and had two children. Tr. at 41-42. At first, claimant waited to be alone to put on women's clothes. Tr. at 47. Sometime between 1987-90, although claimant could not recall precisely when, claimant revealed to claimant's wife the gender identity disorder. Tr. at 46- 47. In 1990, claimant began dressing full time in women's clothing. Tr. at 47. The couple separated in 1994. Tr. at 43.

Claimant's former wife, in recalling the events of 1986-87, testified that claimant was very tense, could not get along at work and that their social life was non-existent. Tr. at 68-69. She agreed with claimant's characterization of her spouse's emotional problems during this time period and confirmed that claimant had no money with which to seek professional help. Tr. at 70, 71-72.

B. Medical History

Claimant testified to seeing two psychiatrists because of depression and anxiety experienced as a result of gender identity problems. Both doctors opined that the mental problems were severe and recommended therapy. Tr. at 59-61. Claimant also reported undergoing therapy at Bellevue Hospital for three months. Tr. at 61-62. There is, however, no available documentation of medical examinations or treatment with these doctors.

Claimant testified that lack of funds prevented any psychiatric treatment between 1987-1994 until becoming eligible for Medicaid. Tr. at 45, 55-56. However, in 1993, claimant attended a group therapy program at the Gay and Lesbian Community Services Center and also sought and received information about a gender treatment program in Texas. Tr. at 48-49, 99-101. From May to August 1994 claimant underwent outpatient counseling at Bellevue Hospital, participating in four psychotherapy sessions to address depression and gender identity disorder, but was discharged from the program due to noncompliance with medication. Tr. at 124-27.

Claimant has seen a number of doctors and mental health professionals since becoming eligible for Medicaid in 1994. They all agree that claimant suffers from depression and anxiety secondary to gender identity disorder.

In 1994, claimant began treating at the Bleuler Psychotherapy Center. In the initial assessment, the social work intern reported that claimant presented wearing women's clothing, makeup and perfume. Tr. at 179. He also noted that claimant was suffering from extreme stress due to fear of attacks caused by appearance. Tr. at 183.

Claimant underwent a psychiatric consultation with Dr. Arthur Jacobs in October 1994. Dr. Jacobs diagnosed gender identity disorder and recommended weekly psychotherapy. Tr. at 156. In a second session two months later, Dr. Jacobs reported that claimant may suffer from chronic depression and panic disorder. Tr. at 159.

Phyllis Graziano, a social worker and psychotherapist, extensively treated claimant during claimant's time at Bleuler Psychotherapy Center. In February 1996, Ms. Graziano diagnosed gender identity disorder and major depression. Tr. at 166. She also stated that claimant's condition precluded ability to work. Id. Several months later, she upgraded the diagnosis to transsexualism because it had lasted for more than two years. Tr. at 167. In discussing the typical manifestations of gender identity disorder/transsexualism, Ms. Graziano noted,

As stated in DSM IV [Diagnostic and Statistical Manual of Mental Disorders-- Fourth Edition], "the majority of boys with this disorder begin to develop it before their fourth birthday, and many times cross-dressing becomes frequent and habitual." Subsequently, transsexualism leads to "persistent or recurrent discomfort and sense of inappropriateness about one's assigned sex." Again, according to DSM IV, "although people who first present clinically with gender identity problems, may be of any age, in the vast majority of cases, the onset of the disorder can be traced back to childhood." Thusly, "social and occupational functioning are markedly impaired, partly because of associated psychopathology, and partly because of problems encountered in attempting to live in the desired gender role." Many transsexuals are treated as societal outcasts due to its uncommon prevalence, as only one male per 30,000 are afflicted with this disorder.

Tr. at 108.

In August 1996, Ms. Graziano reported that claimant's "compulsive and uncontrollable cross-dressing, since 1989, has caused intense conflict, equating to severe anguish." Tr. at 110. Because of claimant's severe depressive moods, antidepressant medication was recommended. Tr. at 109. In a February 1997 letter Ms. Graziano stated, "[I]t is my professional opinion that this patient would NOT have been able to work at ANY job because of 'internal gender conflict,' and 'overwhelming feelings of guilt and shame due to his/her sense of false identity as a male.' " Tr. at 108 (emphasis and quotations in original). In a July 1997 letter, she reported, "Mr./Ms. Manago also suffers with depression with anxiety, and sometimes experiences bouts of hyperactivity which prohibits him/her from remaining in closed areas for prolonged periods of time. Joseph/Joanna lives a reclusive lifestyle due to ridicule and harassment received in public, and is presently unemployed due to the same." Tr. at 107.

In September 1999, Dr. Martin Maurer, also of the Bleuler Psychotherapy Center, opined that claimant suffered from "a long history of Gender Identity issues, [and] ...

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