Abreu-Mercedes v. Chater, 94 Civ. 7578 (JGK).

• Decision Date: 17 June 1996
• Docket Number: No. 94 Civ. 7578 (JGK).,94 Civ. 7578 (JGK).
• Parties: Benigno ABREU-MERCEDES, Plaintiff, v. Shirley S. CHATER, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Southern District of New York

928 F. Supp. 386

Benigno ABREU-MERCEDES, Plaintiff, v. Shirley S. CHATER, Commissioner of Social Security,¹ Defendant.

No. 94 Civ. 7578 (JGK).

United States District Court, S.D. New York.

June 17, 1996.

Benigno Abreu-Mercedes, pro se.

Mary Jo White, United States Attorney for the Southern District of New York by Linda A. Riffkin, Assistant United States Attorney, New York City, for Defendant.

OPINION AND ORDER

KOELTL, District Judge:

The plaintiff, Benigno Abreu-Mercedes, brings this action pursuant to Section 205(g) of the Social Security Act ("the Act"), 42 U.S.C. § 405(g), seeking review of a final decision of the Commissioner of Social Security (the "Commissioner"). After listening to the sworn testimony of the plaintiff and, Dr. Spatt, an impartial medical expert, and reviewing all the medical records submitted, on February 25, 1994, the Administrative Law Judge ("ALJ") determined that the plaintiff was not entitled to a Period of Disability or Disability Insurance Benefits ("DIB") under sections 216(i) and 223 of the Act, nor was the claimant "disabled," as defined in section 1614(a)(3)(A) of the Act for purposes of receiving Supplemental Security Income ("SSI").¹ (R. 16.) On July 26, 1994, the Appeals Council of the Social Security Administration denied the request to review the ALJ's decision. (R. 3-4.) This appeal followed.² Defendant, the Commissioner, now moves for a judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

After the defendant moved for a judgment on the pleadings, the plaintiff submitted medical records from St. Luke's/Roosevelt Hospital Center ("St. Luke's/Roosevelt") showing that he underwent arthroscopic surgery on his left shoulder in June, 1994. The first issue on this motion is whether substantial evidence supports the finding of the Commissioner. The second issue is whether this Court should consider the St. Luke's/ Roosevelt medical records submitted by the plaintiff after the close of the administrative record as a basis for reversing or remanding the matter for further administrative proceedings.

For the reasons explained below, after reviewing the administrative record and the records submitted by the plaintiff after the close of the administrative proceedings, this Court concludes that there is substantial evidence supporting the Commissioner's determination that the plaintiff is not disabled within the meaning of the DIB or SSI programs. Further, the medical records submitted by the plaintiff after the close of the administrative record are not a proper basis to reverse or to remand this case for further administrative proceedings.

I.

The plaintiff, Benigno Abreu-Mercedes, was born on February 25, 1930, and was sixty-three years old at the time of the hearing before the ALJ. (R. 47.) He completed the fourth grade while in the Dominican Republic, and has been employed as a security guard in Puerto Rico and as a counter/packer in the garment industry. (R. 26-28, 84, 94.) Plaintiff is unable to communicate in English, and speaks only Spanish. (R. 26-27.) He testified that he is disabled due to stomach problems, diabetes, problems with his left shoulder, and cramps in his legs. (R. 29-30.)

Abreu-Mercedes alleges that he became unable to work on February 24, 1992. (R. 43.) On April 28, 1992, the plaintiff filed an application for DIB and SSI. (R. 43-46). Defendant concedes that the plaintiff met the special insured status earnings requirement of the Act for purposes of establishing entitlement to DIB on the alleged date of onset, February 24, 1992, and continued to meet these requirements through December, 1994. (Def.'s Mem. of Law at 3.) Insured status is not a consideration for SSI eligibility. (Def.'s Mem. of Law at 3.)

The plaintiff's application was denied at both the initial and reconsideration levels of administrative review (R. 58-61, 67-70.) On February 4, 1994, a hearing was held by ALJ Kenneth Levin to determine if Abreu-Mercedes was entitled to DIB or SSI. The ALJ found that the claimant was not "disabled," within the meaning of the Act and thus was not entitled to benefits. (R. 16.)

II.

A court may reverse a finding of the Commissioner only if that finding is not supported by substantial evidence in the record. 42 U.S.C. § 405(g) (1991) (made applicable to SSI cases by 42 U.S.C. § 1383(c)(3) (1992)). Substantial evidence is "more than a mere scintilla"; it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison, Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)); Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir.1995); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991).

The standards governing entitlement to DIB and SSI are well settled. A claimant seeking social security benefits is considered disabled if the claimant is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).

The analytical framework for evaluating claims of disability is defined by regulations of the Commissioner, which set forth a fivestep inquiry. See 20 C.F.R. §§ 404.1520, 416.920. As the Court of Appeals has explained:

The first step in the sequential process is a decision whether the claimant is engaged in `substantial gainful activity.' If so, benefits are denied. If not, the second step is a decision whether the claimant's medical condition or impairment is `severe.' If not, benefits are denied. If the impairment is `severe,' the third step is a decision whether the claimant's impairments meet or equal the `Listing of Impairments' set forth in subpart P, app. 1, of the social security regulations. These are impairments acknowledged by the Commissioner to be of sufficient severity to preclude gainful employment. If a claimant's condition meets or equals the `listed' impairments, he or she is conclusively presumed to be disabled and entitled to benefits. If the claimant's impairments do not satisfy the `Listing of Impairments,' the fourth step is assessment of the individual's `residual functional capacity,' i.e., his capacity to engage in basic work activities, and a decision whether the claimant's residual functional capacity permits him to engage in his prior work. If the residual functional capacity is consistent with prior employment, benefits are denied. If not, the fifth and final step is a decision whether a claimant, in light of his residual functional capacity, age, education, and work experience, has the capacity to perform `alternative occupations available in the national economy.'

Dixon v. Heckler, 785 F.2d 1102, 1103 (2d Cir.1986) (citations omitted), vacated on other grounds sub nom. Bowen v. Dixon, 482 U.S. 922, 107 S.Ct. 3203, 96 L.Ed.2d 690 (1987); see also Diaz v. Shalala, 59 F.3d 307, 312 n. 2 (2d Cir.1995); Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir.1995).

The initial burden is on the claimant to prove that he is disabled within the meaning of the Act. 42 U.S.C. § 423(d)(5); see also Reyes v. Secretary of Health and Human Servs., 807 F.Supp. 293, 298 (S.D.N.Y. 1992) (Motley, J.). This burden encompasses the first four steps described above. Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir.1983). Once the claimant carries the burden of proving disability by showing that his impairment prevents the return to his prior employment, he has established a prima facie case and the burden shifts to the Commissioner to prove the fifth step — that there exists alternative substantial gainful employment in the national economy that the claimant can perform considering not only his physical capacity but also his age, education, experience, and training. Id. 717 F.2d at 722-723; see also Reyes, 807 F.Supp. at 298; Crean v. Sullivan, No. 91 Civ. 7038, 1992 WL 183421, at *4 (S.D.N.Y. July 22, 1992) (Leisure, J.).

The ALJ properly followed the above process. First, he found that the plaintiff had not engaged in substantial gainful activity since the alleged onset date, February 24, 1992. (R. 15.) Then, he determined, based on the medical evidence before him, that while two of the plaintiff's impairments are considered "severe," the diabetes mellitus and the bilateral shoulder impingement syndrome, he did not have an impairment or combination of impairments that met or equaled any listed impairments.

The plaintiff nowhere explains why these findings were not supported by substantial evidence, and indeed they were.

There was substantial evidence for the ALJ to conclude that the stomach pains and cramps were not severe impairments. After reviewing the medical evidence and the testimony, the ALJ found that while the plaintiff had a period of acute pancreatis with pseudocyst, requiring hospitalization for a month, there was nothing in the medical record to suggest that the claimant did not recover, and, as explained by the independent medical expert, there was nothing to indicate that the plaintiff suffered from continuing ongoing pancreatis. (R. 15, 41.) The plaintiff had failed to testify to ongoing symptoms of pancreatis, except for pain in the stomach, which the plaintiff himself characterized as "not severe," but "bothersome." (R. 31.) His stomach troubles were being treated with Balox, which the independent medical expert identified as equivalent to Maalox. (R. 32.)

The ALJ examined the plaintiff's claim that his legs hurt whenever he sits, stands, or walks. (R. 12.) The ALJ noted that the claimant lives in a fifth floor walkup apartment and usually travels by taxicab. (R. 12.) The ALJ examined the plaintiff's report of calf pains for the possibility of intermittent claudication (limpness). (R. 14.)...