Rivera v. Barnhart

• Decision Date: 27 March 2006
• Docket Number: No. 03 CIV.10127 RJH FM.,03 CIV.10127 RJH FM.
• Citation: 423 F.Supp.2d 271
• Parties: Russell RIVERA, Jr., Plaintiff, v. Jo Anne BARNHART, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Southern District of New York

423 F.Supp.2d 271

Russell RIVERA, Jr., Plaintiff, v. Jo Anne BARNHART, Commissioner of Social Security, Defendant.

No. 03 CIV.10127 RJH FM.

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

March 27, 2006.

COPYRIGHT MATERIAL OMITTED

Richard J. Holwell, United States District Judge, Russell Rivera, Jr., Bronx, NY, for Plaintiff.

Susan D. Baird, Esq., Assistant United States Attorney, New York City, for Defendant.

ORDER

HOLWELL, District Judge.

Plaintiff Russell Rivera, Jr. brings this action pro se challenging the final decision of the Commissioner of Social Security (the "Commissioner") that plaintiff is not disabled and therefore ineligible for Supplemental Security Income ("SSI") benefits. The Commissioner answered the complaint and moved to remand the action for further administrative proceedings.

On January 23, 2006 Magistrate Judge Frank Maas issued a Report and Recommendation ("Report") recommending that the Court grant the Commissioner's motion because of deficiencies in plaintiff's hearing before an administrative law judge. Plaintiff did not file objections to the Report, but defendant objected to the Report's recommendation that a time limit be placed on the administrative hearings on remand. On February 21, 2006, Magistrate Judge Maas issued an Amended Report and Recommendation ("Amended Report") that excluded the time limitation to which defendant had objected. To date, the Court has received no objections to the Amended Report.

The district court adopts a Magistrate Judge's report and recommendation when no clear error appears on the face of the record. See Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985); see also Greco v. Commissioner of Social Security, No. 04 Civ. 141, 2005 WL 1388915 at *2 (N.D.N.Y. June 8, 2005) (applying this "clear error" standard in the context of an action regarding Social Security benefits). However, the court is required to make a de novo determination of those portions of a report to which objection is made, 28 U.S.C. § 636(b)(1)(C), by reviewing "the Report, the record, applicable legal authorities, along with Plaintiff's and Defendant's objections and replies." Bandhan v. Lab. Corp. of Am., 234 F.Supp.2d 313, 316 (S.D.N.Y.2002). The court may then accept, reject, or modify in whole or in part recommendations of the Magistrate Judge. See Nelson, 618 F.Supp. at 1189. If a party fails to object to a report within 10 days of being served with the report, that party waives their right to object and appellate review of the district court's decision adopting the report, absent unusual circumstances, is precluded. See United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997).

Because no objections were made to the Amended Report, the court examined it only for clear error. Having concluded that no such error appears on the face of the record, the Court hereby adopts the Amended Report in its entirety, and grants the Commissioner's motion. The Amended Report is attached in its entirety at the end of this opinion. The Clerk shall close this case.

SO ORDERED.

AMENDED REPORT AND RECOMMENDATION TO THE HONORABLE RICHARD J. HOLWELL

MAAS, United States Magistrate Judge.

I have reviewed the Defendant's Objections (Docket No. 15) to my Report and Recommendation (Docket No. 14) and find them convincing. Therefore, I have amended the Report and Recommendation by deleting the last two paragraphs of Section III.D. The Report and Recommendation, as amended, reads as follows:

I. Introduction

In this pro se action, plaintiff Russell Rivera ("Rivera") seeks judicial review of a decision of the Commissioner of Social Security ("Commissioner") finding that he is not disabled. The case is before this Court on the Commissioner's unopposed motion to have the case remanded for further proceedings, pursuant to the fourth sentence of 42 U.S.C. § 405(g). For the reasons set forth below, that motion should be granted.

II. Background

A. Procedural History

On January 24, 2002, Rivera filed an application for Supplemental Security Income benefits ("SSI") in which he alleged that he became disabled on April 1, 2001. (R. 48-50; Comp. at 1).¹ That application was denied on April 15, 2002. (R 35-38). On May 24, 2002, Rivera requested a de novo hearing before an administrative law judge ("ALJ"), which was held on May 28, 2003. (Id. at 19-33, 39). Following that hearing, ALJ John M. Farley found Rivera ineligible for benefits on July 23, 2003. (Id. at 10-18). The ALJ's decision became final on August 28, 2003, when the Appeals Council denied further review. (Id. at 6-9).

Rivera commenced the present action by submitting his complaint to the Pro Se Office of this Court on October 28, 2003. (See Docket No. 2 at 1). On February 25, 2005, the case was referred to me to report and recommend. (Docket No. 4). On May 11, 2004, the Commissioner answered the complaint, and, on October 14, 2004, she filed the present motion to remand the action for further administrative proceedings. (Docket Nos. 6, 11-12). Rivera has not submitted any opposition papers despite having been served more than one year ago.

B. Relevant Facts

1. Non-Medical Evidence

Rivera was born in 1980. (R. 25). At the time of the hearing in 2003, Rivera was married and had a four-year-old stepdaughter. (Id. at 25, 32). Although he could not remember the dates, Rivera testified that his last employment was with an ambulance service, helping the driver escort patients in wheelchairs. (Id. at 25-26). He did not receive any training for the work, which involved lifting and carrying disabled people in wheelchairs up and down flights of steps. (Id. at 26, 64). By the time of the hearing, however, Rivera was no longer employed. (Id.).

Rivera testified that he was diagnosed with HIV and Hepatitis C in April 2001, and with AIDS six months later. (Id. at 26-27). He did not receive any treatment for the HIV until around September of 2001. (Id. at 27). When he was diagnosed with AIDS, Rivera was suffering from weight loss, loss of appetite, weakness, and he generally was "sick a lot." (Id.). By the time of the hearing, Rivera's weight was approximately 155 to 160 pounds, up from a low of about 130 pounds. (Id. at 28). Rivera testified that he could walk or stand for about one hour before having to rest, and that he always felt "weak, really tired and fatigued." (Id. at 28). Rivera testified further that the medications he was taking to improve his condition had many side effects, including nausea, diarrhea, fatigue, loss of appetite, dehydration, and, finally, kidney stones, for which hospitalization had been required. (Id. at 29). He also testified that he was losing his teeth and that his vision was deteriorating, preventing him from being able to perform office work. (Id. at 28-29).

Rivera's case manager from Argus Community Care, Equity and Support Services, Reynaldo Rodriguez ("Rodriguez") also testified at the hearing. (Id. at 21). Rodriguez explained Rivera's dire financial situation. (Id. at 30-32). He also stated that Rivera had not been evaluated by a psychologist because of a three-month waiting period at Montefiore Medical Group ("Montefiore"). (Id. at 31).

2. Medical Evidence

Rivera's medical records from Montefiore confirm that he was diagnosed with HIV in April 2001. (Id. at 83, 86). According to the records, Rivera did not begin treatment for his condition until November 2001, when he began taking Combivir, Crixivan and Norvir, which are used to treat HIV, and Zofran, which helps alleviate the side effects of the HIV treatment. (Id. at 78, 79, 86). The records also show that Rivera gained weight, from 146 pounds in September 2001 to 156 pounds in December 2002, and 158 pounds in January 2002. (Id. at 81, 83, 85). In November 2001, Rivera's CD4² count was 222 and his viral load³ was 226,000. (Id. at 83). Laboratory test results from Montefiore dated January 12, 2002, indicate that Rivera's CD4 count had increased to 469, and his viral load had decreased to 5,801. (Id. at 87-88). The report of a further physical examination conducted on December 12, 2002, reveals that Rivera appeared well-nourished, and had a normal blood pressure and heart rate; additionally, he was experiencing mild epigastric⁴ tenderness, but there was no hepatomegaly.⁵ (Id. at 85).

The administrative record also includes two "Medical Requests for Home Care" certified by Montefiore physicians on November 19, 2001 and June 25, 2003. (Id. at 90-93, 107-10). Both requests state that Rivera sometimes exhibits anxiety, depression and a sleep disorder. (Id. at 91, 108). The first such request shows that Rivera was diagnosed with Hepatitis C on an unspecified date and with pneumonia in February 2000. (Id. at 90). The more recent request states that Rivera was diagnosed with depression, anxiety disorder and panic attacks in January 2003. (Id. at 107). That request also shows that as of January 2003, Rivera's CD4 count had increased to 805, and his viral load had decreased to 1,743. (Id.).

On July 17, 2002, Dr. Asbury, Rivera's treating physician, completed a "Medical Assessment of Ability to Do Work Related Activities (Physical)" in which he opined that Rivera's impairment limited his ability to lift or carry. (Id. at 66, 104). Dr. Asbury also opined that Rivera could not walk or stand for more than four hours in an eight-hour workday and could not stand or walk without interruption for more than one hour. (Id. at 104). He further opined that Rivera was not limited in his ability to sit, and could climb, stoop, crouch, kneel and crawl occasionally and balance frequently. (Id. at 104-05). Dr. Asbury found that Rivera was mildly limited in pushing and pulling, moving machinery and the ability to withstand temperature extremes. (Id. at 105).

The record also shows that Rivera was admitted to the emergency room at Our Lady of Mercy Medical Center in the Bronx twice in June 2003 because of chest pains. (Id. at 111-14). On June 18, 2003, he was discharged...