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ROSADO v. SULLIVAN

April 15, 1992

LUISA ROSADO, Plaintiff, against LOUIS W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.


The opinion of the court was delivered by: SHARON E. GRUBIN

REPORT AND RECOMMENDATION TO THE HONORABLE RICHARD OWEN

 SHARON E. GRUBIN, United States Magistrate Judge:

 This is an action brought under the Social Security Act ("the Act"), 42 U.S.C. ยงยง 405(g), 1383(c)(3), to review a final decision of the Secretary of Health and Human Services ("the Secretary") denying plaintiff's application for Supplemental Security Income ("SSI") benefits based on disability. Defendant and plaintiff have each moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). For the reasons stated below, I respectfully recommend that defendant's motion be granted and plaintiff's be denied.

 Plaintiff filed an application for SSI benefits on October 9, 1987, alleging disability due to diabetes, high blood pressure and poor vision. (R 29-38). The application, which did not cite a date on which the alleged impairments began (R 30), was denied on January 22, 1988 (R 40-44), and denied on reconsideration on May 23, 1988. (R 48). *fn1" At plaintiff's request, a hearing was held, before Administrative Law Judge Jeffrey W. Kohlman ("the ALJ") on September 6, 1988, at which plaintiff appeared pro se and testified through a Spanish language interpreter. (R 11-23). On September 26, 1988, the ALJ issued a decision denying plaintiff benefits (R 7-10), based on his finding that her impairments were not "severe," insofar as they did not "significantly limit her ability to perform basic work-related activities," and that she therefore was not under a "disability" as defined in the Act. (R 10). On January 26, 1989, the Appeals Council denied plaintiff's request for review of the ALJ's decision. (R 3-4).

 Proceeding in forma pauperis and pro se, plaintiff commenced this action on March 11, 1989, stating that she is entitled to receive disability benefits because she is "a very sick person, suffering from diabetes [and] acute arthritis, also my public assistance check is not enough," and alleging that her disability has existed since 1978. (Complaint P 4). On August 15, 1989, defendant moved for judgment on the pleadings. Plaintiff thereafter obtained representation by Bronx Legal Services and has now also moved for judgment on the pleadings.

 BACKGROUND

 Hearing Testimony

 Medical Evidence in the Record

 A. Treating Physicians' Reports

 At various times from 1984 through 1987, plaintiff received outpatient treatment at the Morrisania Hospital Family Care Center for diabetes mellitus, hypertension, allergic rhinitis, complaints of arthritis and other pains, and gynecological matters. (R 89-109, 129-165). The earliest evidence in the record consists of the results of x-rays of the chest and thoracic spine taken on March 8, 1984. The chest x-ray was normal for plaintiff's age, and changes of the thoracic spine consistent with the plaintiff's age were noted. (R 91). It is not clear from the record when plaintiff was first diagnosed as having diabetes mellitus, but the Morrisania records indicate she was tested for that condition at least as of 1985 and she was first prescribed oral medication (Diabenese) on January 8, 1986. On at least five occasions during the 1986-1987 period, tests indicated elevated glucose levels (R 101, 107, 137, 141, 163), and her medication was increased. (R 109, 137). Most blood pressure readings taken at Morrisania were within normal limits for systolic and diastolic pressure, but plaintiff was advised to continue a low salt diet. (R 101). A "Team D" report at Morrisania, dated March 11, 1987, stated that plaintiff had not been treated since July 1986 because she had been in Puerto Rico. *fn4" According to the report, plaintiff stated that she continued to take her same medication in Puerto Rico, had no other problems and was "feeling fine." Her physical examination was normal. (R 139). An EKG taken in April 1987 revealed "borderline" abnormalities in the left atrium. (R 148). Plaintiff complained of a sore and itching nose on April 22, 1987, she was treated for a vaginal monilial infection on May 15, 1987, and she was diagnosed with an upper respiratory infection on November 10, 1987. (R 132, 137, 152).

 A terse "Team D" note date stamped April 29, 1987 (but probably written earlier) stated: "Pt unemployable. Pt wants a letter for SSI. Will refer to Social Service." Plaintiff received counseling from the Morrisania Social Service Department at thirteen sessions between April 29, 1987 and December 2, 1987. (R 149-50, 153, 155-57, 159-61). At her "initial intake interview" on April 22, 1987, plaintiff said that she needed a letter for SSI stating her medical condition and complained of tightness in her chest, depression, headaches and difficulty sleeping. According to the reports, "All of this started," she explained, "after [she] had been robbed four times." The interviewer noted that she appeared "anxious but oriented." (R 161). Subsequent appointments focused on her complaints about apartment repairs and her desire to apply for other housing. The repairs were completed and she was advised that she would qualify for senior citizen housing shortly, when she turned 62. In a "closing summary" on December 2, 1987, the Morrisania social worker stated that "supportive counseling relieved pts anxiety" and the case was closed. (R 149).

 The record also contains a copy of a June 17, 1987 report to the New York State Department of Social Services from private physician Dr. Amparo Yuzon, who treated plaintiff on May 20, 1986 and January 8, 1987. With respect to her first visit, Dr. Yuzon reported:

 On plaintiff's January 8, 1987 visit:

 Her blood sugar was elevated at that time and her cholesterol and triglycerides were also slightly elevated, but her kidney functions were within normal limits. She complained of dizziness, and her medications were adjusted at that time. She had [sic], at that time, and has not had to my knowledge any complaints of any cardiac type chest pain of any nature and I have not treated her or administered to her any medications for such a complaint.

 (R 110).

 The record also contains medical records from Mount Sinai Hospital covering the period November 17, 1987 through May 4, 1988. (R 114-128). On November 17, 1987, plaintiff was treated at the Mt. Sinai emergency room after she complained of backache, stomach ache, dizziness and headaches. On subsequent visits, plaintiff had "multiple somatic complaints," though reports noted that her epigastric pain was relieved through medication, and upper gastrointestinal tests were negative. (R 114, 117, 120). On January 6, 1988, plaintiff was referred to a social worker for "anxiety" and "living difficulties." (R 114). A fairly illegible copy of a report from a Mt. Sinai social worker dated January 21, 1988 apparently indicates that plaintiff again complained of sleeping difficulties, housing difficulties and assorted aches. (R 115).

 The record also contains a Residual Functional Capacity evaluation from Dr. C. Loffer of the Mt. Sinai Medical Associates dated August 15, 1987 or 1988 *fn5" that plaintiff apparently submitted after the hearing. (R 196-98; see 15-16). Although the file contains no records from Mt. Sinai prior to plaintiff's emergency room treatment on November 17, 1987, Dr. Loffer reports that he saw plaintiff every three months from January 1987. He noted that plaintiff had complained of abdominal pain, that her upper gastrointestinal series was normal, that plaintiff had diabetes mellitus and was treated by means of oral medication, and that her prognosis was good. Dr. Loffer's opinion was that plaintiff could stand, sit or alternately sit and stand for unlimited periods; that she did not ...


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