Montalvo v. Barnhart

• Decision Date: 16 January 2003
• Docket Number: No. 02-30058-KPN.,02-30058-KPN.
• Citation: 239 F.Supp.2d 130
• Parties: Pedro MONTALVO, Plaintiff, v. Jo Anne BARNHART, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Massachusetts

239 F.Supp.2d 130

Pedro MONTALVO, Plaintiff, v. Jo Anne BARNHART, Commissioner of Social Security, Defendant.

No. CIV.A.02-30058-KPN.

United States District Court, D. Massachusetts.

January 16, 2003.

COPYRIGHT MATERIAL OMITTED

Richard C. Roth, Springfield, MA, for plaintiff.

Karen L. Goodwin, United States Attorney's Office, Springfield, MA, for defendant.

MEMORANDUM AND ORDER WITH REGARD TO PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS and DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER (Docket Nos. 10 and 11)

NEIMAN, United States Magistrate Judge.

This is an action for judicial review of a final decision by the Commissioner of the Social Security Administration ("Commissioner"). See 42 U.S.C. § 405(g). Pedro Montalvo ("Plaintiff) alleges that the Commissioner's decision denying him Supplemental Security Income ("SSI") disability benefits—which is memorialized in a January 22, 1999 decision by an administrative law judge—is flawed by various errors of law. Plaintiff, via a motion for judgment on the pleadings, has moved to reverse or, in the alternative, to remand the decision, and the Commissioner, in turn, has moved to affirm.

The parties have consented to the jurisdiction of this court pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73(b). For the reasons set forth below, the court will deny the Commissioner's motion and will allow Plaintiffs motion to the extent it seeks a remand.

I. STANDARD OF REVIEW

The Commissioner's factual findings in making her disability determination are conclusive so long as they are grounded in substantial evidence. See 42 U.S.C. §§ 405(g) and 1383(c)(3). Substantial evidence 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, 28 L.Ed.2d 842 (1971). It is "more than a mere scintilla." Id. Thus, even if the administrative record could support multiple conclusions, a court must uphold the Commissioner's findings "if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [her] conclusion." Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir.1991) (citation and internal quotation marks omitted).

Even so, a denial of disability benefits need not be upheld if there has been an error of fact or law in the evaluation of the particular claim. See Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir.1996). In the end, the court maintains the power, in appropriate circumstances, "to enter ... a judgment affirming, modifying, or reversing the [Commissioner's] decision" or to "remand[ ] the cause for a rehearing." 42 U.S.C. § 405(g).

II. BACKGROUND

Plaintiff was born on December 30, 1961, has a sixth grade education and no relevant work history. (Administrative Record ("A.R.") at 113, 124, 149; Supplemental Transcript ("Supp.Tr.") at 6.) He was born in Puerto Rico and came to the United States at about age thirteen. (A.R. at 202.) Since that time, and until 1996, Plaintiff was a heavy drug user (including intravenous cocaine and heroin) and he spent four years in jail in the mid-1990s. (Id.) Plaintiff is literate in Spanish but does not understand English. (Supp. Tr. at 6.)

A. Medical History

Plaintiff claims a disability due to chronic hepatitis infection, a condition he claims to have had since December 1, 1996. (See A.R. at 30-31, 113.) He also claims to have a mental impairment. (See A.R. at 21-22.)

1. Hepatitis

Plaintiff tested positive for Hepatitis C in April of 1997. (A.R. at 196.) Thereafter, from January through March of 1998, he was treated for hepatitis at the emergency room and ambulatory clinic at St. Barnabas Hospital (A.R. at 134-48.)

Dr. Michael Polak, an internist, examined Plaintiff in February of 1998 and noted that he was not undergoing Interferon treatment or treatment for end-stage liver disease. (A.R. at 149-55.) The physical examination showed that Plaintiff was well-developed, well-nourished and in no acute distress. (A.R. at 149.) He could ambulate without difficulty and his gait was within normal limits. (Id.) Dr. Polak also observed that Plaintiffs head, eyes, ears, nose, throat, neck and cardiovascular system were normal and that Plaintiff had no difficulty rising from a chair or getting off the examination table. (A.R. at 149-50.) Dr. Polak diagnosed a history of Hepatitis C exposure (with the extent of underlying liver disease unclear), alcohol abuse and multiple substance abuse and concluded that Plaintiff was mildly impaired in relation to carrying, lifting, pushing, pulling, walking and standing. (A.R. at 150-51.)

On May 8, 1998, Dr. C. Levit of the New York State Disability Determination Service ("DDS") reviewed Plaintiffs file for the Commissioner. (A.R. at 188-95.) Dr. Levit advised that, due to the hepatitis, Plaintiff would be limited to frequent lifting over ten pounds and only occasional lifting of over twenty pounds. (A.R. at 189.)

As a result of Plaintiffs request, an administrative law judge obtained other medical records. (Supp. Tr. at 2, 7.) They show that Plaintiff began treating with Dr. Ronald Loescher in June of 1998. (A.R. at 202-04.) Plaintiff was not taking medication for liver disease at the time, but testing confirmed Hepatitis B and C for which a healthy diet, regular exercise and abstinence from drugs and alcohol were recommended. (A.R. at 206, 208.) A liver biopsy in October of 1998 was positive for moderate chronic active viral hepatitis with cirrhosis. (A.R. at 200.) Interferon treatment was being considered in December of 1998. (A.R. at 211.)

2. Mental Impairment

A neurological examination performed by Dr. Polak in February of 1998 showed that Plaintiff was alert and oriented in all spheres. (A.R. at 150-51.) On March 9, 1998, DDS determined that Plaintiff need not be referred for a psychological examination because the physical examination showed that no psychiatric problems were evident or alleged. (A.R. at 166.) Dr. Loescher's notes of October 5, 1998, indicate that Plaintiff complained about his weight and that he was fatigued, nervous and depressed. (A.R. at 208.) Plaintiff wondered if he should see a counselor. (Id.) Dr. Loescher explained, however, that the symptoms described were quite common with chronic illness and advised Plaintiff that he eat healthy foods and avoid alcohol, drugs and smoking. (Id.)

B. Procedural History

On December 8, 1997, in the midst of these medical benchmarks, Plaintiff filed an application for SSI disability benefits. (A.R. at 113-14.) After his claim was denied on March 13, 1998, Plaintiff requested reconsideration but was again denied on May 21, 1998. (A.R. at 90-97.) Proceeding pro se, Plaintiff requested a hearing before an administrative law judge ("ALJ"). (A.R. at 98.) The hearing was held on October 13, 1998, at which time a Spanish interpreter was provided. (Supp. Tr. at 1, 5.) The ALJ denied Plaintiffs claim in a decision dated January 22, 1999. (A.R. at 32-45.) On March 9, 1999, Plaintiff requested review of the decision by the Appeals Council. (A.R. at 30-31.)

On December 16, 1999, Plaintiff retained his present lawyer. (Complaint ¶ 5.) On January 14, 2000, with the assistance of counsel, Plaintiff filed a new claim for SSI benefits, but did not withdraw the request for review then pending in the Appeals Council. (A.R. at 23-26.) His new claim was approved on or about February 23, 2000, apparently on the basis of mental illness, the Commissioner finding as well that Plaintiff was incapable of managing his finances and needed a representative payee. (See A.R. at 14-29.) Plaintiff s file with respect to this newly approved claim was forwarded to the Appeals Council. (See id.)

On January 30, 2002, the Appeals Council denied Plaintiffs request for review. (A.R. at 5-6.) Plaintiff then filed this action which, in essence, seeks SSI benefits for the period of time between his first, unsuccessful, application and his second, successful one. In due course, the parties submitted the cross motions presently before the court.

III. DISCUSSION

An individual is entitled to SSI benefits if, among other things, he is needy and disabled. See 42 U.S.C. §§ 1381a and 1382c(a)(3). Plaintiffs financial need is not challenged. The question here is whether Plaintiff suffers from a disability.

A. DISABILITY STANDARD AND THE ALJ'S DECISION

The Social Security Act (the "Act") defines disability, in part, as the inability "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 has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). An individual is considered disabled under the Act "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 1382c(a)(3)(B). See generally Bowen v. Yuckert, 482 U.S. 137, 146-49, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987).

In determining disability, the Commissioner follows a familiar five-step protocol. The First Circuit has described the mandatory sequential inquiry as follows:

First, is the claimant currently employed? If he is, the claimant is automatically considered not disabled.

Second, does the claimant have a severe impairment? A "severe impairment" means an impairment "which significantly limits the claimants physical or mental capacity to perform basic work-related functions." If he does not have an impairment of at least this degree of severity, he is automatically considered not disabled.

Third, does the claimant have an impairment equivalent to a specific list of impairments contained in the regulations' Appendix 1? If...