Rivera v. Sullivan

• Decision Date: 17 July 1991
• Docket Number: No. 90 Civ. 5320 (RPP).,90 Civ. 5320 (RPP).
• Citation: 771 F. Supp. 1339
• Parties: Dolores RIVERA, Plaintiff, v. Louis W. SULLIVAN, M.D., in his Official Capacity as Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Southern District of New York

771 F. Supp. 1339

Dolores RIVERA, Plaintiff, v. Louis W. SULLIVAN, M.D., in his Official Capacity as Secretary of Health and Human Services, Defendant.

No. 90 Civ. 5320 (RPP).

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

July 17, 1991.

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David Stroh Buckel, New York Law School, Federal Litigation Clinic, New York City, for plaintiff.

Susan D. Baird, Sp. Asst. U.S. Atty., S.D.N.Y., New York City, for defendant.

ORDER

ROBERT P. PATTERSON, Jr., District Judge.

This Court has received and reviewed the Report and Recommendation (the "Report") issued by Magistrate Judge Michael H. Dolinger on June 25, 1991 in the above-captioned action. No timely objections to the Report have been made by the parties to this petition. The Court has considered the Report and agrees with its recommendations. Accordingly, it is hereby

ORDERED that the Report and Recommendation issued by Magistrate Dolinger on June 25, 1991 is accepted in accordance with 28 U.S.C. § 636(b). Accordingly, it is further

ORDERED that plaintiff's motion for judgment on the pleadings is granted, that defendant's motion for judgment on the pleadings is denied, and that the case is remanded to the Secretary solely to calculate benefits.

REPORT AND RECOMMENDATION

MICHAEL H. DOLINGER, United States Magistrate Judge.

Plaintiff Dolores Rivera seeks review of the decision of the Secretary of Health and Human Services denying her application for Supplemental Security Income ("SSI") benefits. Plaintiff originally applied for benefits on September 27, 1984, claiming that she was disabled due to the effects of rheumatic heart disease, seizures and epilepsy. (Tr. 26-27.)¹ In subsequent filings and in her testimony, plaintiff also referred to left side weakness and numbness in her left hand resulting from an August 1984 stroke, back pain, chest pain, right leg pain, heart problems, and dizziness from her various medications. (E.g., Tr. 52, 61, 62, 257, 259, 261.) After an initial remand from this court to the Secretary for further administrative findings, plaintiff seeks review of the Secretary's second denial of her application. Both parties have moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the reasons that follow, I recommend that plaintiff's motion be granted, that defendant's motion be denied, and that the case be remanded to the Secretary solely for the calculation of benefits.

Prior Proceedings

Plaintiff's application was denied initially (Tr. 36-37) and on reconsideration. (Tr. 40.) Plaintiff thereafter requested and received an evidentiary hearing before Administrative Law Judge ("ALJ") Irwin Bernstein on September 5, 1985, at which she appeared pro se. The ALJ issued a decision on September 25, 1985 denying plaintiff's application for SSI benefits, since he found that she could perform her past relevant work as a "floor girl" in a towel factory. (Tr. 14.) Plaintiff appealed this decision to the Appeals Council and submitted additional medical evidence in support of her application. Notwithstanding her additional evidentiary submission, the Appeals Council affirmed the decision of the ALJ on March 24, 1986. (Tr. 4-5.)

On June 23, 1986, plaintiff filed a pro se suit challenging the Secretary's decision. Rivera v. Bowen, 86 Civ. 4928 (PKL). On February 5, 1988 I issued a Report and Recommendation urging a remand to the Secretary for clarification and supplementation of the record. The court adopted the Report and remanded the case to the Secretary for further administrative proceedings. (See Order dated May 24, 1988.)

Following the remand, a second hearing was conducted by ALJ Roy P. Liberman. At the first session of the hearing, on January 25, 1989, Ms. Rivera testified with counsel present. The second session of the hearing was conducted on March 30, 1989. At that proceeding Ms. Rivera's daughter Carmen testified, together with a medical expert, Dr. Richard Wagman, and a vocational expert, Dr. Patricia Dvonch. On July 20, 1989, the ALJ issued his recommended findings to the Appeals Council, concluding that Ms. Rivera was not disabled because she was capable of performing her past relevant work as a "factory floor girl." (Tr. 225-26.) On May 15, 1990, believing that Ms. Rivera had filed no objections, the Appeals Council adopted the ALJ's recommended findings and conclusions. (Tr. 216.) After resubmission of plaintiff's objections, which apparently had been misplaced by the Secretary, the Appeals Council issued a final decision on June 19, 1990 that reviewed Ms. Rivera's objections at length, but still adopted the ALJ's recommended findings in their entirety. (Tr. 420-25.)

Plaintiff commenced this action to set aside the Secretary's denial of benefits on August 15, 1990.

The Evidence of Record

1. Plaintiff's Testimony

Ms. Rivera was born in Puerto Rico on February 10, 1940. She was therefore forty-four years and seven months old at the time of her application. Although she is a high school graduate, she speaks no English and can understand only a little. (Tr. 19, 20, 247.) Plaintiff held several different jobs between 1970 and 1981, the details of which she could not recall (Tr. 55), except for her brief sojourn in a plastics factory. At that job, "I would be where the plastic things were coming out of a machine, and I would take them from where they are and put them into what they call a basket." (Tr. 248.) That job involved light lifting and an undetermined amount of standing and sitting. (Tr. 248-49.)

Plaintiff held her last job from 1981 to 1982, working as a "floor girl" in a towel factory. (Tr. 247.) In describing her responsibilities as a "floor girl," plaintiff testified:

They sometimes give me the towels to put on the prices, to check them out to see whether there was any kind of defect, to take out the towel. This is what I understand. Put some kind of a mark on a little ribbon that went on the towel.

(Tr. 247.) Although plaintiff's testimony was not a model of clarity, she appeared to describe at least three functions that she performed at the towel factory. First, she was required to use a staple gun to put price tags on the towels. To do so, she held the staple gun in her right hand and held the towel and a price tag in her left hand. Apparently, she then aligned the price tag in the proper place and stapled it to the towel. Second, plaintiff was required to use a ruler to check whether all of the markings on the towel were straight and in accordance with the towel design. Finally, after undertaking these tasks, plaintiff folded the towel and placed it in a plastic bag. (Tr. 56, 248, 262.)

In her original disability application, plaintiff — obviously in error — described her job as involving six hours of walking, eight hours of standing and six hours of sitting. (Tr. 52.) In a vocational report filed in June 1985, however, she clarified the physical requirements of her former job, stating that it required two hours of walking, four hours of standing, and two hours of sitting. (Tr. 56.) Finally, at the hearing Ms. Rivera indicated that she could perform the various tasks required of her at her job either standing or sitting, although "sometimes I had to stand because I had to walk, but not too far, just near the table where I was working." (Tr. 248.) Plaintiff also testified that her job involved frequent bending, although it did not require any lifting and carrying. (Tr. 86, 248.)

Plaintiff testified that she had stopped working in 1982 when she began having epileptic seizures. (Tr. 249.) She stated at the hearing that her last seizure had been in 1988, and that she takes phenobarbital to control this condition. (Tr. 249-50.)

On August 19, 1984, plaintiff was admitted to St. Barnabas Hospital with a diagnosis of a cerebrovascular accident, commonly known as a stroke. (Tr. 150-51, 249.) Plaintiff testified that as a result of the stroke, she has had recurring problems with her left side and her non-dominant left hand. In particular, plaintiff claimed that she could not grab or hold onto any objects with her left hand because of a lack of sensation in the hand. (Tr. 249, 252.)

Plaintiff also testified regarding a number of additional physical ailments and limitations. First, she claimed that she could stand for only one hour at most, and that she suffers from a painful swelling in her right ankle if she stands for too long. (Tr. 250, 263.) At the initial hearing, plaintiff had testified that she could sit for only half an hour continuously, and that she was not able to kneel or bend at all. (Tr. 21.) At the second hearing, however, she indicated merely that she would not be able to sit for four hours out of an eight hour day. (Tr. 264.) Plaintiff also stated that she could walk only about four blocks at a time, that she must walk slowly and stop frequently, and that sitting in a certain type of chair or in a certain position is painful. (Tr. 251-52, 259.) In addition, plaintiff testified that she suffers from pains on the left side of her chest about twice a month, and has had pain in the middle of her chest two or three times. (Tr. 257-58.) Plaintiff also claimed that she is easily fatigued and has recently been suffering more serious and frequent back pain, and that she takes Lanoxin for a heart valve "that doesn't work right." (Tr. 259, 261.)

Plaintiff further testified that she is unable to use stairs because of her physical limitations. She claimed that as a result, she cannot use public transportation and always gets a ride or takes a taxi whenever she goes out of her apartment. (Tr. 246.) She spends her time reading, watching television and observing street life from her window. (Tr. 22, 24, 276.) Sometimes she has trouble dressing because of her inability to use her left hand. Since she cannot button the right sleeve of her shirts, she generally wears either pull-on or zippered clothes. (Tr. 23, 255, 277.) Her son and daughter currently live...