Calzada v. Asture

• Decision Date: 17 November 2010
• Docket Number: No. 09 Civ. 3926(RJS)(MHD).,09 Civ. 3926(RJS)(MHD).
• Citation: 753 F.Supp.2d 250
• Parties: Angelo Luis CALZADA, Plaintiff,v.Michael J. ASTURE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Southern District of New York

753 F.Supp.2d 250

Angelo Luis CALZADA, Plaintiff,

v.Michael J. ASTURE, Commissioner of Social Security, Defendant.

No. 09 Civ. 3926(RJS)(MHD).

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

Nov. 17, 2010.

Angelo Calzada, New York, NY, pro se.

Susan Colleen Branagan, U.S. Attorney Office, New York, NY, for Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION

RICHARD J. SULLIVAN, District Judge.

On April 20, 2009, Plaintiff Angelo Luis Calzada, who is proceeding pro se, filed a complaint appealing Defendant Commissioner of Social Security Administration's denial of his application for Supplemental Security Income benefits. The Court referred this matter to the Honorable Michael H, Dolinger, Magistrate Judge, on April 29, 2009. On August 13, 2009, Defendant moved pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings. Plaintiff never filed opposition papers.

On October 21, 2010, Magistrate Judge Dolinger issued a Report and Recommendation (the “Report”), recommending that (1) Defendant's motion be denied, (2) the Commissioner's decision denying Supplemental Security Income be vacated, and (3) the case be remanded for further administrative proceedings. In the Report, Magistrate Judge Dolinger advised the parties that failure to file timely objections to the Report would constitute a waiver of those objections. See 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b). No party has filed objections to the Report, and the time to do so has expired. Cf. Frank v. Johnson, 968 F.2d 298 (2d Cir.1992).

When no objections to a report and recommendation are made, the Court may adopt the report if there is no clear error on the face of the record. Adee Motor Cars, LLC v. Amato, 388 F.Supp.2d 250, 253 (S.D.N.Y.2005); La Torres v. Walker, 216 F.Supp.2d 157, 159 (S.D.N.Y.2000). Having reviewed Magistrate Judge Dolinger's seventy-eight page Report, the Court finds that the reasoning and conclusions set forth therein are not facially erroneous. Accordingly, the Court adopts the Report in its entirety. For the foregoing reasons, IT IS HEREBY ORDERED that Defendant's motion for judgment on the pleadings is DENIED, the Commissioner's decision denying Supplemental Security Income is vacated, and that the case is remanded for further administrative proceedings.

The clerk of the court is directed to terminate the motion located at Doc. No. 9 and to close this case.

SO ORDERED.

REPORT AND RECOMMENDATION

MICHAEL H. DOLINGER, United States Magistrate Judge.

TO THE HONORABLE RICHARD J. SULLIVAN, U.S.D.J.:

Plaintiff Angelo Luis Calzada commenced this pro se action pursuant to section 1631(c)(3) of the Social Security Act, as amended, 42 U.S.C. § 1383(c). He seeks review of a November 28, 2008 decision by the Commissioner of the Social Security Administration (the “Commissioner” and the “SSA,” respectively), denying his application for Supplemental Security Income benefits (“SSI”) under the Social Security Act (“the Act”). Plaintiff contends that the decision of the Administrative Law Judge was erroneous, not supported by substantial evidence, and/or contrary to the law, and asks the court to either (a) modify the decision to grant monthly maximum SSI benefits, retroactive to the date of the initial disability, or (b) remand to the Commissioner of Social Security for reconsideration of the evidence. (Compl. at ¶ 9).

Defendant has moved, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, for judgment on the pleadings. He contends that the denial of plaintiff's application for SSI benefits is supported by substantial evidence and otherwise accords with legal requirements. Plaintiff has not responded to the motion.

For the reasons set forth below, we recommend that defendant's motion be denied and that the case be remanded for further administrative consideration.

PROCEDURAL HISTORY

On July 17, 2007,¹ Mr. Calzada protectively filed an application for SSI, claiming that back problems, arthritis, and diabetes had rendered him unable to work since April 25, 2006. (Administrative Record Transcript (“Tr.”) at 67, 72). The SSA denied plaintiff's application on September 24, 2007, finding that he was “not disabled.” (Tr. at 34–36). Thereafter, plaintiff augmented his initial SSI application with “Form SSA–3441” (“supplement”), a form used to document subsequent medical developments. (Tr. at 102–108). He also filed a written request for a hearing before an Administrative Law Judge (“ALJ”) on October 29, 2007, (Tr. at 10).

On October 9, 2008,² plaintiff appeared pro se before ALJ Wallace Tannenbaum for an evidentiary hearing. (Tr. at 21). On November 28, 2008, ALJ Tannenbaum issued a decision holding that plaintiff was not disabled under the definition of the Act. (Tr. at 10–17). Specifically, he found that while plaintiff had two severe impairments—lumbar osteoarthritis ³ and resolved left shoulder adhesive capsulitis ⁴—“the clinical and diagnostic findings [did] not support [finding] the presence of disabling limitations.” (Tr. at 13). Plaintiff sought review by the SSA Appeals Council, but his request for review was denied on January 26, 2009. (Tr. at 1–3).

On March 24, 2009, after all of plaintiff's administrative remedies had been exhausted, this court's Pro Se Office received Mr. Calzada's complaint. (Compl. at 1). The complaint was filed on April 20, 2009 pursuant to 42 U.S.C. § 1383(c).⁵ In support of his claim, plaintiff cites, as disabling conditions, “diabetes mellitus, high blood pressure , severe back pain, and shoulder pain.” ( Id.).

FACTUAL BACKGROUND

I. Non–Medical Evidence

Plaintiff was born a United States citizen on October 11, 1953. (Tr. at 54). He currently rents apartment 17H at 70 East 108th St., New York, N.Y. 10029, where he lives alone. (Tr. at 22, 55). Plaintiff is single and has never married. (Tr. at 22, 54). He has two grown children, one living in the Bronx and the other in California. (Tr. at 27).

Plaintiff says that he is able to do his own cleaning, laundry, and cooking, although he sometimes needs help cooking and cleaning. (Tr. at 83). His daughter sometimes comes from the Bronx to help him clean and buy groceries. (Tr. at 30). He mostly stays at home and does not leave his apartment much to socialize with friends. (Tr. at 26, 31). He goes outside about three times a week. (Tr. at 83, 84). Plaintiff goes shopping once a week, which takes about an hour. (Tr. at 84). When he goes out, he uses public transportation or rides in a car. (Tr. at 30, 83). He says that he can walk about two to five blocks before stopping and resting and that it takes him an hour and a half before he can continue again. (Tr. at 29, 86). He also says that his condition prevents him from walking for a long time, from riding his bike, and from sitting down for a long time. (Tr. at 85). Although he used to enjoy fishing and baseball, he no longer engages in these activities, (Tr. at 84).

Plaintiff is not currently employed (Tr. at 23), and last held a job between 2001 and 2003,⁶ when he worked for the New York City Parks Department through a public-assistance program. (Tr. at 72–73). Plaintiff's work for the Parks Department involved maintenance, which included cleaning up leaves, collecting garbage, and maintaining the park equipment. (Tr. at 25, 73). His previous job extended from 1995 to 1996 and involved maintenance work in doctors' offices. (Tr. at 73). Plaintiff has a 9th grade education and is able to read and write, but has no vocational training. (Tr. at 23, 77). He has no trouble following instructions or getting along with other people. (Tr. at 86–87).

Plaintiff's income consists of $137.00 a month, which he receives as public assistance for rent, and may also include food stamps.⁷ (Tr. at 55–56). In October 2008, plaintiff stated that he had been receiving welfare for about five years. (Tr. at 23–24). Plaintiff claims that the reason he can no longer work and the reason why he has not sought any work is because of his back pain. (Tr. at 26).

According to plaintiff, his back problems, arthritis and diabetes began to interfere with his ability to work at the beginning of 2005 and he became completely unable to work on April 25, 2006. (Tr. at 54, 72). He says that he feels “bad pain” when he lifts objects, that his legs hurt when walking and standing for long periods of time, and that his back hurts when he sits for too long. (Tr. at 85). Indeed, his back pain sometimes causes him to have to crawl out of bed in the morning. (Tr. at 72).

In an undated supplement to his application, plaintiff reported that, since his initial application, the stabbing pain in his lower back has extended to his left leg. (Tr. at 103). As for the effect of his condition upon his ability to care for himself, he wrote “[I] have difficulty bathing however [I] take my time. [I] do my things with pain.” (Tr. at 106). He also stated that he began suffering from depression in August 2007, as he felt incapable of “do [ing his] things without some sort of assistance.” (Tr. at 103). Plaintiff explained that depression sometimes keeps him from leaving his apartment, and that his daughter comes to help him with grocery shopping and household chores. (Tr. at 106).

II. Medical EvidenceA. Treating Sources

On March 11, 2005,⁸ plaintiff was diagnosed with new onset, Type II diabetes mellitus (“diabetes”).⁹ (Tr. at 167). In the course of a work-eligibility consult at North General Medical Clinic, a routine blood test revealed elevated glucose levels, prompting a referral to the Emergency Department. (Tr. at 167). The Emergency Department diagnosed plaintiff with diabetes, prescribed medication, and scheduled a follow-up appointment for later that week. (Tr. at 116, 167). Plaintiff subsequently met with Nurse Practitioner Esther Wei (“NP Wei”) of New York Presbyterian Hospital (“NY Presbyterian”) several times in the next months to monitor and manage his newly-diagnosed condition. ( See Tr. at 113, 138, 140).

After pl...