Fonseca v. Chater, 95-CV-0826A(H).

• Decision Date: 03 January 1997
• Docket Number: No. 95-CV-0826A(H).,95-CV-0826A(H).
• Citation: 953 F.Supp. 467
• Parties: John J. FONSECA, Plaintiff, v. Shirley S. CHATER, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Western District of New York

953 F.Supp. 467

John J. FONSECA, Plaintiff, v. Shirley S. CHATER, Commissioner of Social Security, Defendant.

No. 95-CV-0826A(H).

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

January 3, 1997.

John J. Fonseca, Olean, NY, Pro Se.

Patrick H. Nemoyer, United States Attorney, Buffalo, New York, for the Government; Mary K. Roach, Assistant United States Attorney, of Counsel.

ORDER

ARCARA, District Judge.

This case was referred to Magistrate Judge Carol E. Heckman, pursuant to 28 U.S.C. § 636(b)(1), on March 18, 1996. Both parties moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). On November 13, 1996, Magistrate Judge Heckman filed a Report and Recommendation, recommending that the Court grant defendant's motion and deny plaintiff's motion.

Plaintiff filed objections to the Report and Recommendation on November 27, 1996 and defendant filed a memorandum of law in response thereto.

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions of the parties, the Court adopts the proposed findings of the Report and Recommendation.

Accordingly, for the reasons set forth in Magistrate Judge Heckman's Report and Recommendation, defendant's motion for judgment on the pleadings is granted, plaintiff's motion is denied and the case is dismissed in its entirety.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

HECKMAN, United States Magistrate Judge.

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). Plaintiff, who was awarded disability benefits, disputes the disability onset date established by the Commissioner of Social Security (the Commissioner). He initiated this action seeking modification or remand of the Commissioner's decision, or reopening of his prior applications. Both parties have moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the following reasons, the Commissioner's motion should be granted, and plaintiff's motion should be denied.

BACKGROUND

Plaintiff was born on October 3, 1946, and is currently 50 years old (T. 49).¹ He is a high school graduate who has been employed as a truck driver, pipe fitter, operations clerk, meter reader, laborer and janitor (T. 97). Plaintiff was employed by Columbia Gas of New York, Inc. from April 10, 1972 to October 20, 1986, and by that company's successor, New York State Electric and Gas, for the period May 5, 1991 to January 14, 1992 (T. 214). Plaintiff has not worked since January 14, 1992 (T. 12).

Plaintiff first applied for disability benefits on March 6, 1987, claiming he had been unable to work since October 17, 1986 because of an injury to his right arm (Item 13, Ex. C, p. 6).² The application was denied initially and on reconsideration (id. at p. 2). After a hearing held on November 18, 1987, Administrative Law Judge (ALJ) Margaret J. Quinn found that plaintiff could no longer perform his past relevant work because he was limited in the amount of weight he could lift, push or pull (id. at pp. 7-8). However, based on the record, ALJ Quinn found that plaintiff could perform light work that involved lifting no more than 20 pounds (id. at 8). Plaintiff was found not disabled within the meaning of the Social Security Act (id.).

Plaintiff made a second application for benefits on July 5, 1990, claiming total disability as of October 17, 1986 due to the combined limitations of his right arm injury and a bilateral hearing loss (T. 80). Again his application was denied through the reconsideration level. On April 9, 1991, a hearing was held before ALJ F. Lambert Haley who found that the combined effects of plaintiff's lifting limitations and a 30 percent hearing loss did not compromise his capacity to perform light work (T. 174-79). Plaintiff was again found not disabled (T. 179).

Plaintiff made a third application for benefits on May 4, 1993, alleging total disability as of January 14, 1992 due to high blood pressure and internal bleeding at the base of the brain (T. 182, 210). In addition, plaintiff referenced his two previous applications, claiming a 30 percent permanent hearing loss and a 30 percent loss in the use of his right arm (T. 215). His application was denied initially and on reconsideration (T. 185-88, 199-201). Plaintiff requested a hearing (T. 25).

On October 26, 1994, a hearing was held at which plaintiff appeared pro se. ALJ James E. Dombeck determined that the medical record did not disclose any impairment of sufficient severity to meet the clinical criteria of Appendix 1, Subpart P to Regulations No. 4 (T. 12). However, he found that plaintiff's subjective complaints were consistent with the medical evidence presented and that the combined effects of plaintiff's severe hypertension, vertigo, cerebral ventricle hemorrhage (stroke), bilateral hearing loss, right arm injury, and persistent skin problems rendered him incapable of making a vocational adjustment to work existing in the national economy (T. 12-13). On November 3, 1994, plaintiff was found to have been disabled from February 20, 1993, the date of his hospitalization for severe hypertension and cerebral hemorrhage (T. 13-14). ALJ Dombeck also found that plaintiff was capable of performing light work prior to suffering his stroke (T. 15). This finding became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review (T. 5-6).

On September 25, 1995, plaintiff commenced this action seeking modification or remand of the Commissioner's decision with respect to the disability onset date (Item 1). Plaintiff also requested that the court reopen his two previous applications that were denied (Item 13, p. 1). Plaintiff claims that as of March 20, 1987, he had the same combination of impairments upon which benefits were eventually granted (Item 13, pp. 10-11). He alleges that the Commissioner did not consider his severe hypertension in combination with his other disabilities for the period prior to February 20, 1993, and seeks to introduce additional records to substantiate his claim of an earlier disability onset date (Item 8, pp. 1-2).

DISCUSSION

Plaintiff's action raises three issues: first, whether the Commissioner's determination that plaintiff's disability began on February 20, 1993 was supported by substantial evidence, second, whether the additional evidence plaintiff now presents justifies modifying or remanding the Commissioner's final decision of September 5, 1995, and third, whether plaintiff's prior applications should be reopened. Each issue is discussed in turn below.

I. Judicial Review.

The Social Security Act states that "[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive...." 42 U.S.C. § 405(g) (McKinney's 1991). Substantial evidence is that which a "reasonable mind might accept as adequate to support a conclusion...." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938), quoted in Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir.1991). Under this standard, judicial review of the Commissioner's decision is limited, and the reviewing court may not try the case de novo or substitute its findings for those of the Commissioner. Richardson, supra, 402 U.S. at 401, 91 S.Ct. at 1427. 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 Commissioner. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982). The Commissioner's determination cannot be upheld, however, when it is based on an erroneous view of the law that improperly disregards highly probative evidence. Grey v. Heckler, 721 F.2d 41, 44 (2d Cir.1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979).

In assessing plaintiff's claim that the Commissioner disregarded his severe hypertension prior to February 20, 1993, the court must consider the evidence before the Commissioner at the time of the determination. The record shows that plaintiff was admitted to Olean General Hospital on February 20, 1993, experiencing vertigo and hypertension (T. 237, 240). Plaintiff's test results later showed he had suffered a hemorrhage within the cerebellum (stroke) (T. 243).

Following his stroke, plaintiff continued to experience vertigo and lightheadedness (T. 267, 272). Plaintiff testified that Dr. Feldman, a consultant on his case, ruled out corrective surgery as being too risky (T. 38, 42-43). Plaintiff stated that there is no treatment that will restore his balance (T. 43).

Dr. Arbaje, who treated plaintiff upon admission, indicated that plaintiff had been diagnosed with hypertension in 1985 (T. 235, 237). Dr. Feldman, who evaluated plaintiff on February 23, 1993, noted that plaintiff had high blood pressure in 1986, was treated and placed on anti-hypertensive medication, and discontinued medication in 1988 (T. 240). Dr. Feldman also stated that plaintiff had not experienced any vertigo prior to his hospitalization and had no history of seizures, syncope, headaches, or head pain (id.).

The record includes information on impairments and injuries suffered by plaintiff prior to February 20, 1993. The record shows that plaintiff suffered a right arm injury in 1986 and had been restricted since that time to lifting, pushing, or pulling no more than 30 pounds (T. 35, 39, 177, 207, 215, 277). It also contains evidence of plaintiff's 30 percent hearing loss (T. 36-37, 175, 215, 240). A head trauma plaintiff had suffered some 4-5 years earlier is noted as well (T. 240). Reports were obtained from all physicians named by plaintiff in his application (T. 211).

Plaintiff did not allege, in either...