Rodriguez v. Colvin, 13-CV-6360 CJS
| Decision Date | 06 August 2014 |
| Docket Number | 13-CV-6360 CJS |
| Parties | JOSE LUIS RODRIGUEZ, Plaintiff v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Western District of New York |
APPEARANCES
For the Plaintiff:
Catherine M. Callery, Esq.
Empire Justice Center
One West Main Street, Suite 200
Rochester, New York 14614
For the Defendant:
Fergus John Kaiser, Esq.
Social Security Administration
Office of General Counsel
26 Federal Plaza, Room 3904
New York, New York 10278
This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner" or "Defendant"), which denied the application of Jose Luis Rodriguez ("Plaintiff") for Social Security Supplemental Security Income ("SSI") disability benefits. Now before the Court is Plaintiff's motion (Docket No. [#9]) for judgment on the pleadings and Defendant's cross-motion [#10] for judgment on the pleadings. Plaintiff's application is granted, defendant's application is denied, and this matter is remanded to the Commissioner for further administrative proceedings.
Plaintiff claims to be disabled due to "an intellectual disability, Diffuse Idiopathic Skeletal Hyperostosis [("DISH"]1 resulting in back and knee pain, and depression."2 On December 30, 2010, Plaintiff, who had not worked for many years, filed an application for SSI disability benefits, claiming to be disabled due to three conditions: "depression," "back problems" and "high blood pressure." (148). The Commissioner denied the application.
On December 1, 2011, Administrative Law Judge David Begley ("the ALJ") conducted a hearing, at which Plaintiff appeared and testified, accompanied by his non-attorney representative, Doris Cortez ("Cortez"). Cortez maintained that Plaintiff was disabled because he met the requirements of Listing 12.05(C). (13)3 Plaintiff, who was 47 years old at the time, testified with the assistance of an interpreter, although the ALJ observed that Plaintiff appeared to understand English, since he "respond[ed] to questioning, posed in English, before the translator provided the question to [him] in Spanish." (58) On March 16, 2012, the ALJ issued a Decision (48-59), finding that Plaintiff was not disabled at any time between the date he filed for benefits and the date of the hearing.
Plaintiff, through his representative, appealed to the Appeals Council, again arguing that he met the requirements of Listing 12.05(C), based on "depression, back pain, hypertension, and knee pain" (187-189), combined with an IQ score "in the mild range of mental retardation." (187) The Appeals Council declined to review the ALJ's determination. (1-4)
On July 11, 2013, Plaintiff commenced this action. As will be discussed further below, Plaintiff maintains that the ALJ's decision was erroneous in several respects. First, Plaintiff maintains that the ALJ erred, at step two of the five-step sequential analysis described below, by finding that Plaintiff's intellectual disability is not "severe." Plaintiff further contends that the ALJ erred at step three of the sequential analysis, by finding that Plaintiff's intellectual disability does not meet the requirements for a listed impairment. In that regard, whereas Plaintiff had previously argued, both to the ALJ and to the Appeals Council, that he met only the 12.05(C) listing, he now contends that he meets the listings for both 12.05(B) and 12.05(C). Additionally, Plaintiff contends that the ALJ erred at the fifth step of the sequential analysis, by failing to include all of Plaintiff's limitations in a hypothetical question to the vocational expert ("VE") who testified at the hearing. Specifically, Plaintiff maintains that the ALJ's hypothetical questions to the VE "failed to include . . . the significant limitations caused by [Plaintiff's] intellectual disability" and his illiteracy.4 Finally, Plaintiff maintains that the ALJ erred by failing to "adequately insure that the VE's testimony did not conflict with the Dictionaryof Occupational Titles ("DOT").5 In that regard, Plaintiff maintains that although the VE identified three jobs that Plaintiff could perform even with his impairments, the DOT requirements for those jobs exceed Plaintiff's actual abilities.
Plaintiff did not complete high school, and has provided differing accounts as to the highest grade-level that he completed. When Plaintiff applied for SSI disability benefits, he indicated that he had attended special education classes, and that the highest grade he completed was the Fourth Grade, in 1979. (149). At the hearing, Plaintiff stated that he completed "just about third grade." (18) Plaintiff's representative admits that Plaintiff told his counselor that he completed ninth grade,6 and school records indicate that he was still in school as late as 1981 which, given his birthdate, would typically correspond with him being in ninth or tenth grade.7(182-183) (IEP, dated May 7, 1981, for upcoming school year at Monroe High School)
As for work history, Plaintiff told the ALJ that he had worked in Puerto Rico, but had never worked "on a regular basis" in the U.S. (14) Plaintiff indicated that he had worked part-time as a dishwasher in Florida for "about two and a half months." (14, 16) Plaintiff's last reported income, in the amount of $1,725.80, was in 1999. (48) Plaintiff also has reported income for 1984-1989 and 1993 (137-138), but has not provided anyinformation about such work, except insofar as he maintains that he worked "on and off" at a carwash between 1987 and 1989. (149).
Plaintiff stated that he left his part-time dishwashing job in Florida to come to Rochester to care for his father, who was in a wheelchair, because "there was nobody to take care of him and give him his medicine." (15) Plaintiff's mother and step-father also live in Rochester. Plaintiff apparently lived with his father and cared for him for several years. However, Plaintiff's father died on February 2, 2005, and Plaintiff never sought work thereafter, purportedly because he was too distraught over his father's death. (15) ("I just wanted to be alone, crying all the time.") When the ALJ asked Plaintiff how he supported himself, Plaintiff gave a vague, unresponsive answer. (15) ("I am surviving [INAUDIBLE] because that's who is helping me.") When the ALJ asked Plaintiff why he cannot work now, Plaintiff responded: "Because [INAUDIBLE] I can not lift heavy stuff, my hands fall asleep or get numb and I can't do anything." (15) Similarly, when Plaintiff applied for benefits, he was asked how his "injuries, illnesses or conditions" affected his ability to care for himself, and he responded: "I can't do any heavy lifting or move in a certain way." (162)
At the time of the hearing, Plaintiff was 47 years of age. (14). Plaintiff weighed approximately 300 pounds, and is 5' 9" tall. (14) At the hearing, Plaintiff stated that he consumes alcohol only occasionally, such as when there is a family party. (25) However, Plaintiff told a consulting psychologist that he consumes four 40-ounce bottles of beer each day (238), which is the equivalent of thirteen 12-ounce bottles of beer. Plaintiff also told the Appeals Council that he began to "abuse alcohol" after hisfather died. (188) Plaintiff told his mental health counselor that he smoked a pack of cigarettes per day (207), but at the hearing he told the ALJ that he had never smoked. (24-25)
Plaintiff lives alone8 in a second-floor walk-up apartment, which is located over a restaurant, which is owned by friends of his. (24) Plaintiff states that he spends "a lot of time" at the restaurant. (24) At one time, Plaintiff belonged to a "group or club" of people calling themselves "Latin Folks," but the group disbanded. (24) Plaintiff further indicated that he spent "time helping his friend who sells ices on the street." (264) Plaintiff also has friends come to his apartment to play dominoes. (24) Plaintiff indicated that he "managed his symptoms by being active," but "avoid[ed] being out at night due to danger in the community." (286)9 On Sundays, Plaintiff goes to church. (24) Plaintiff also told his counselor that he was "attending classes," but the record provides no further detail regarding such classes. (198)
On the other hand, Plaintiff contends that he cannot either sit or stand for long periods, and that he is most comfortable lying in bed. (21) Plaintiff indicated that he spends many days lying in bed watching television. (22-23)
Plaintiff occasionally "sweeps" his apartment. (23) Plaintiff bathes and dresses himself. (23) Plaintiff cooks his own meals, but states that he cannot lift a glass of water, "because it gets heavy." (22-23) At the hearing, Plaintiff indicated that hismother assists him with grocery shopping, and also washes his laundry. (23) Elsewhere in the record, Plaintiff indicated that he does his own shopping and laundry.10
At the hearing Plaintiff indicated that he had past legal problems consisting of "only traffic, nothing else." (25) However, Plaintiff had previously indicated that he had been convicted of a felony. (132) When the ALJ asked Plaintiff about this discrepancy, Plaintiff stated that he was convicted of a felony, but he provided a seemingly incorrect explanation as to the nature of the crime. Specifically, he stated that the felony conviction arose from having "an open can of beer in the street" (25), which, the Court notes, is not a felony. Plaintiff stated that he received six months of probation for the conviction. (25) Plaintiff also indicated that in 2008 he was arrested and kept overnight for "for traffic tickets." (238) An x-ray report dated December 16, 2009, indicates that Plaintiff has gunshot fragments in his left knee, though the record provides no further explanation of this phenomenon. (281)
Plaintiff previously had a driver's license, but does not have one...
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