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Claude v. Michael J. Astrue

June 23, 2011


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


Claude Michael Dahan seeks review of a final decision of the Commissioner of Social Security ("Commissioner"). Although the Commissioner granted Dahan's applications for disability insurance benefits ("DIB") and supplemental security income ("SSI"), Dahan argues that he should have been found disabled as of an earlier date.

Both Dahan and the Commissioner move for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Dahan seeks remand for reassessment of his onset date, while the Commissioner asks the Court to uphold the existing date. For the reasons stated below, Dahan's motion is granted and the Commissioner's is denied.


Dahan, a former salesperson, applied for benefits on April 12, 2007, alleging disability due to "numbness in extremities, lower back injury, hernia and high blood pressure." Administrative Record ("AR") at 169. He alleged that his impairments became disabling on June 1, 2005, but later amended the onset date to June 1, 2006. The amendment apparently reflected some uncertainty as to the date on which Dahan stopped working.

After Dahan's application was initially denied, he requested a hearing before an Administrative Law Judge ("ALJ"), which took place on April 29, 2009. In addition to reviewing medical records, the ALJ took testimony from Dahan, medical expert Bernard D. Gussoff, M.D., and vocational expert Ruth Baruch.

The ALJ issued his decision on June 2, 2009. He found that Dahan had had a number of severe impairments since his alleged onset date, but that they had not become disabling until May 1, 2007. In particular, the ALJ found that Dahan had a residual functional capacity for sedentary work until May 1, 2007, at which point one of his impairments -- degenerative disc disease -- equaled the criteria for Listing 1.04(A) on the Commissioner's list of automatically disabling impairments.

A. Post-May 1, 2007 Condition

In setting the onset date of Dahan's disability at May 1, 2007, the ALJ relied on Dr. Gussoff's analysis of the medical evidence. According to Dr. Gussoff, Listing 1.04(A) required evidence of three things: "You need a herniated disc, you need spinal stenosis, and you need nerve root impingement." AR at 41. Although the medical record did not reflect all three, Dr. Gussoff found evidence of an impairment that was medically equivalent in severity.

First, he cited a May 30, 2007 report from consulting physician Justin Fernando, M.D. Dr. Fernando noted "disc space narrowing [at] L3-4, L5-S1" based on a contemporaneous x-ray. Second, Dr. Gussoff cited a May 27, 2007 report from treating physician Yosef Morad, M.D. Included in Dr. Morad's report were MRI interpretations noting bulging and herniated discs in the cervical spine, and "central herniation of the L2-L-3, L3-L4 & L4-L5 discs with compression of the thecal sac." AR at 289-90. Presumably referring to the reports, Dr. Gussoff said that "those two items" would establish an equivalence. AR at 40.

Dr. Gussoff incorrectly believed that the MRIs were contemporaneous with Dr. Morad's report. In fact, the MRIs were taken and interpreted in January and February 2002. When Dahan's counsel pointed that out, Dr. Gussoff's response was confused. He first stated that he could not find an equivalence "back to '02" based solely on a herniated disc. AR at 41. He then said, however, that he could "make an equivalence out of" Dr. Morad's report, but continued to assert (erroneously) that the MRIs underlying the report dated only to May 27, 2007. AR at 42.

B. Pre-May 1, 2007 Condition

The finding of a listed impairment made it unnecessary for the ALJ to determine Dahan's post-May 1, 2007 RFC. With respect to the pre-May 1, 2007 RFC, the ALJ gave "significant weight" to the opinion of Dr. Gussoff. At first, Dr. Gussoff stated that he was unable to provide an opinion because he had "nothing in the file" regarding Dahan's pre-May 1, 2007 limitations. AR at 55; see also id. ("[Q: W]hat in your opinion would've been the limitations for the Claimant prior to his equaling the listing in May of '07? [A:] Well, Your Honor, that's kind of difficult to answer."). After prodding from the ALJ, he equivocally suggested that Dahan "had functional limitations which were probably -- certainly not light work. Possibly sedentary." AR at 56.

In addition, the ALJ gave "considerable weight" to the opinion of Alex Katz, DPM, Dahan's treating podiatrist. On May 8, 2007, Dr. Katz submitted a written statement opining that Dahan had no functional limitations at all. Dr. Katz treated Dahan for heel and foot pain, and ...

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