Santos v. Chater, Civil Action No. 95-30126-MAP.

• Decision Date: 30 September 1996
• Docket Number: Civil Action No. 95-30126-MAP.
• Citation: 942 F.Supp. 57
• Parties: Jorge SANTOS v. Shirley S. CHATER, Commissioner of the Social Security Administration.
• Court: U.S. District Court — District of Massachusetts

Page 57

942 F.Supp. 57

Jorge SANTOS v. Shirley S. CHATER, Commissioner of the Social Security Administration.

Civil Action No. 95-30126-MAP.

United States District Court, D. Massachusetts.

September 30, 1996.

David Waldfogel, Western Mass. Legal Services, Holyoke, MA, for Plaintiff.

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

MEMORANDUM REGARDING PLAINTIFF'S MOTION TO REVERSE COMMISSIONER OR FOR REMAND AND DEFENDANT'S MOTION TO AFFIRM COMMISSIONER

(Docket Nos. 8 & 9)

PONSOR, District Judge.

I. INTRODUCTION

Defendant Commissioner of Social Security ("the Commissioner") has filed an objection to Magistrate Judge Kenneth P. Neiman's Report and Recommendation that the Commissioner's motion to affirm the denial of Supplemental Security Income ("SSI") disability benefits to plaintiff Jorge Santos be denied. After de novo review, this court will adopt the magistrate judge's Report and Recommendation.

II. PROCEDURAL BACKGROUND

The plaintiff, who was born on June 9, 1932 and has a fifth grade education, filed an application for SSI disability benefits on July 23, 1984. Plaintiff alleged an inability to work for the period of November 1983 to February 1985 due to an injury to his right leg and due to alcoholism. Administrative Record ("A.R.") at 59-69. Plaintiff's application for SSI benefits was initially denied on September 7, 1984, A.R. at 87, and, again, upon reconsideration on February 7, 1985. A.R. at 102.

In 1988, plaintiff was granted SSI benefits for Continuous and Organic Brain Syndrome due to his alcohol dependence. A.R. at 140. Although plaintiff was granted SSI disability benefits from January 1988 to the present, the Commissioner refused to find that plaintiff was eligible for SSI disability benefits from November 1983 to February 1985. Plaintiff is now challenging the Commissioner's refusal to grant SSI disability benefits for that period.

After originally denying SSI disability benefits to plaintiff for the period in question, the Social Security Administration ("SSA") subsequently re-examined plaintiff's case in light of the First Circuit's decision in McDonald v. Secretary of Health and Human Services, 795 F.2d 1118 (1st Cir.1986). Upon reexamination, SSA again denied benefits on April 13, 1992, A.R. at 115-16, and plaintiff sought review of the denial by an Administrative Law Judge ("ALJ") on October 21, 1992. A.R. at 117. The ALJ found that plaintiff was not entitled to SSI disability benefits because he was not disabled for the period at issue. A.R. 18-23. The SSA Appeals Council also denied plaintiff's request for review. A.R. at 3-4.

On June 14, 1993, plaintiff filed a complaint in United States District Court. A.R. at 188. In a decision dated June 28, 1994, Senior United States District Judge Frank H. Freeman reviewed and remanded the case to the Commissioner. A.R. at 187-196. Judge Freedman determined, contrary to the ALJ, that plaintiff, in conformity with McDonald, "made the necessary de minimis showing that his impairment or impairments were severe enough to interfere with his ability to perform basic work activities during the time period in question." A.R. at 194-95. Judge Freedman, therefore, determined that plaintiff had met one of the three threshold elements required under the five step analysis outlined in Goodermote v. Secretary of Health & Human Services, 690 F.2d 5, 6-7 (1st Cir.1982), discussed infra. He remanded the case for further findings under the remaining steps of the analysis. A.R. at 194-95.

The ALJ conducted a second hearing on November 16, 1994, at which time expert testimony from a vocational expert was obtained. A.R. at 175-84. The ALJ still found plaintiff was not entitled to SSI disability benefits for the period from November 1983 to February 1985 because he was not disabled. A.R. at 160-66. Plaintiff again requested a review of the ALJ's decision by the SSA Appeals Council, and was again denied. A.R. at 151-A. The case is now before this court again.

On July 30, 1996, Magistrate Judge Kenneth P. Neiman issued a Report and Recommendation in which he recommended that this court grant plaintiff's motion to reverse, and deny defendant's motion to affirm, the ALJ's decision. As noted, after de novo review, this court will adopt the magistrate judge's Report and Recommendation.

III. SUMMARY OF MEDICAL HISTORY

Plaintiff is a sixty-four year old male who has a history of physical and psychological problems. This court will follow the magistrate judge's helpful breakdown of plaintiff's medical history by viewing it in two parts: injury to plaintiff's leg and non-exertional impairments due to alcoholism.

A. Evidence of Injury to Plaintiff's Right Leg.

The record indicates that on May 16, 1984, plaintiff underwent surgery for the removal of an aberrant bone formation secondary to a 1983 fracture of his right ankle. A.R. 120-126. According to plaintiff's treating physician, Dr. J. Robert Kisiel, plaintiff was said to have healed well, but occasionally complained of some mild pain. A.R. at 126-27. Based solely on the condition of his right leg, Dr. Kisiel summarily concluded that plaintiff could resume any type of occupation. A.R. at 127.

Dr. Kisiel completed another report in December of 1984, in which he indicated that plaintiff was seen twice in September and once in October of that year. At these times plaintiff complained of tenderness, discomfort and pain in his ankle and calf, although his gait and range of motion were normal. A.R. at 128. While Dr. Kisiel commented that plaintiff's scar was well healed and that there was no indication of calf atrophy or surgical orthopedic management necessary, he did observe some swelling and prescribed anti-inflammatory medication. A.R. at 127.

On January 17, 1985, plaintiff was examined by another physician, Dr. Mohammad S. Bajwa. A.R. at 129-32. Dr. Bajwa noted that plaintiff complained of pain in his right ankle, especially when standing or walking, that plaintiff walked with a slight limp, and that he experienced dull to sharp pain even when he was at rest. A.R. at 129. Dr. Bajwa further noted that plaintiff gave a long history of heavy drinking and complained of urinary problems. A.R. at 129. Additionally, Dr. Bajwa indicated that plaintiff's only functional limitation was caused by the pain in his right ankle, which might cause some difficulty in standing or walking for prolonged periods of time. A.R. at 131.

B. Evidence of Plaintiff's Non-Exertional Impairment Due to Alcoholism.

The medical evidence of plaintiff's alcoholism begins with his September 1975 admission to a detoxification clinic. A.R. at 141-43. At that time, plaintiff was vomiting with frequency; he was subsequently placed on antabuse. A.R. at 142. After two days, plaintiff signed himself out of the facility against medical advice. A.R. at 142-43. Plaintiff was again admitted to a detoxification facility in May 1983 and, again, signed out against medical advice two days later. A.R. at 144.

In April of 1985, plaintiff completed a fourteen-day court ordered inpatient program at Rutland Heights Hospital as a result of his conviction for driving while intoxicated. A.R. at 145. Plaintiff was discharged with a recommendation to attend Alcoholics Anonymous meetings and continue counseling. Id. Thereafter, plaintiff was again admitted to hospitals as a result of his alcoholism. In April of 1986, plaintiff entered a detoxification facility for four days, received antabuse and was discharged with instructions to follow up on an outpatient basis. A.R. at 147-48. In December 1986, plaintiff completed another fourteen-day court-ordered program at Rutland Heights Hospital. A.R. 150-51. Plaintiff's rehabilitation counselor, Ave M. Leonard, reported that plaintiff "tested middle stage alcoholic, but based on his own testimony, late stage may be more accurate." A.R. at 150. Leonard also suggested that from his own observation of plaintiff and plaintiff's past history perhaps another court order should impose further treatment on him because of his "inability or unwillingness to change." A.R. at 150-51.

As part of his 1988 claim for disability benefits, plaintiff underwent a psychological evaluation by Dr. Jose Pons, a clinical psychologist, in January 1988. A.R. at 137-38. Dr. Pons observed that plaintiff's mood was depressed, his hygiene was only fair, and that his reaction time was slow, but, nevertheless logical, coherent and thought-focused. A.R. at 138.

Dr. Pons found that psychological testing of plaintiff illustrated "a history of chronic alcohol dependence with serious organic changes associated to such condition." A.R. at 140. In addition, Dr. Pons stated that plaintiff "has a severe case of alcohol dependence and presents the type of personality configuration which requires ... mind altering agents to function within social context. The combination of these factors together with the presence of an affective disorder makes [plaintiff] a poor candidate for rehabilitation." A.R. at 140. Dr. Pons determined that plaintiff's prognosis was poor and offered a diagnosis of continuous alcohol dependence and organic brain syndrome, secondary to alcohol dependence. A.R. at 140.

IV. DISCUSSION

A. Standard of Review

The factual findings of the Commissioner in determining disability shall be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g) (1994). The Supreme Court has defined "substantial evidence" to as "more than a mere scintilla. It means 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, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. National Labor Relations Bd., 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). "In reviewing the record for substantial evidence, [the court] must keep in mind that `[i]ssues of credibility and the drawing of permissible inferences...