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January 6, 1995

MARIA D. BARRERA, SSN: 105-42-2644, Petitioner, against SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.

The opinion of the court was delivered by: JOANNA SEYBERT

 SEYBERT, District Judge:

 Petitioner Maria D. Barrera brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) challenging a final determination of the Secretary of the Department of Health and Human Services [the "Secretary"], which denied her application for Supplemental Security Income benefits under the Social Security Act [the "Act"]. Both parties have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure; in addition, the petitioner seeks, in the alternative, to have her application remanded to the Secretary for further administrative proceedings. For the reasons that follow, the Court remands this matter to the Secretary for further consideration of the petitioner's claim.


 Petitioner is a sixty-one year old female who was born in Spain, and immigrated to the United States in 1965. On December 31, 1990, petitioner and her husband, Stanley Barrera, filed a joint application for Supplemental Security Income benefits, indicating a protective filing date of November 20, 1990. In this application, petitioner asserted that she became disabled in July 1990 on account of muscular discomfort in her back, that made it difficult for her to walk. Tr. at 61. This application was denied by the Secretary, both initially, and upon request for reconsideration. Upon a hearing held before an Administrative Law Judge [ALJ] on November 22, 1991, petitioner's claim was again rejected, by decision dated April 24, 1992. Petitioner's request for review of this decision was then denied by the Appeals Council on January 27, 1993. *fn1"

 At her hearing before the ALJ, petitioner was represented by her husband, who also served as her interpreter. Petitioner testified that although she was educated in Spain, she is able to read, write, and speak English to a degree. She further testified that, in 1984, she assumed ownership of her husband's real estate brokerage business upon her husband's retirement, to enable him to collect social security retirement benefits. Tr. at 36. At this time, petitioner had never worked before, and did not have a real estate license. At no time during her ownership of this business did petitioner obtain a real estate license; rather, she had three employees who performed all selling duties, while she took care of the office. As owner, petitioner answered the telephone, wrote real estate listings, accompanied her salespersons to apartments and homes, made bank deposits, maintained files, served as a translator for Spanish-speaking clients, and assigned salespersons to the clients. She also stated that, as owner, it was necessary for her to lift a metal gate in the store front up and down, and to shovel snow in the winter. It was also necessary for her to kneel in connection with filing records, and to walk (i) to and from work, (ii) to the bank to deposit receipts, and (iii) in accompanying salespersons to premises (although she left the selling duties to the salespersons). She stated that she closed the business in 1989 because she felt too tired to continue working, as a result of leg and back pains. Specifically, petitioner claimed that her knees ache after walking for one or two blocks, and that her back hurts after standing for more than fifteen minutes, or sitting for a length of time. At the time of the hearing, however, petitioner had not undergone any regular medical treatment for these ailments, allegedly due to a lack of funds. She further stated that her physical ailments did not interfere with her ability to think or to plan.

 Petitioner stated that she takes Mevacor to lower her cholesterol, Fiorinal for her migraine headaches, Motrin for her tendinitis and back pain, and also takes hot baths to relieve her pain.

 Petitioner testified that she is being treated by a Dr. Kennish, whom she saw one month prior to the hearing. Dr. Kennish referred petitioner to a neurologist, but petitioner allegedly lacked the funds for a consultation.

 Petitioner stated that she was informed that she had tendinitis, and was treated with Novocaine at Jackson Heights Hospital. Petitioner also testified that she received emergency-room treatment at Physicians Hospital, which has since closed. Petitioner further stated that, three years prior to the hearing, she was treated by a Dr. Perello, who also injected her with Novocaine to relieve her back pain.

 The record contains reports of three separate treating and consulting physicians. The first two are reports by Dr. K. Seo, who performed a consultative examination of the petitioner on February 14, 1991, and Dr. Arthur J. Kennish, whom the claimant testified she saw twice, but who reported that he only saw her once, on July 16, 1991. Both reports assert that the petitioner displayed symptoms of lumbar radiculopathy, and complained of difficulty in walking. Dr. Seo noted restricted lumbar motion, negative x-ray findings and a decreased sensation of the right leg at the level of L5, and Dr. Kennish noted decreased lower extremity reflexes. However, neither physician noted any muscle spasm, motor loss, or objective muscle weakness. Dr. Seo concluded that functionally, claimant may have difficulty standing and walking for prolonged periods, and Dr. Kennish indicated that the claimant had an "inability to sustain physical activity, walking, etc." Tr. at 121. Dr. Kennish was subsequently requested by the ALJ to complete a detailed medical assessment form describing claimant's ability to do work-related activities, but returned it to the ALJ with only a copy of his previous report, which was completed on a form prescribed for assessing an individual's mental residual functional capacity. In addition, it should be noted that Dr. Kennish is not an orthopedist, but an internist specializing in cardiology; he referred the claimant to a neurologist, but petitioner testified that she did not go because of a lack of funds. *fn2"

 Noting Mrs. Barrera's testimony that she did not participate in selling real estate, the ALJ found, in his decision, that the claimant functioned as a real estate office manager, which he regarded as a sedentary occupation. He further found that the claimant possessed "the residual functional capacity to perform work-related activities except for work involving prolonged standing or walking, or other strenuous exertion," and that petitioner's past work as a real estate office manager did not require the performance of work-related activities precluded by these limitations. He therefore concluded that the claimant's impairment did not prevent her from performing her past relevant work, and that, consequently, the claimant was not under a "disability" as defined in the Act, at any time through the date of his decision. Thus, the ALJ denied petitioner's claim for supplemental security income. Tr. at 13-14.

 The litigants raise two issues in their cross-motions. First, the petitioner asserts that the ALJ did not inform her of the benefits of exercising her right to counsel, and that the same prejudiced her because the ALJ failed properly to develop the record. With respect to this matter, the petitioner has attached to her motion papers new medical evidence, including a residual functional capacity evaluation form completed by a neurologist, that diagnoses the petitioner as suffering from severe neuritis, which renders it "impossible for her to work." She argues that had the ALJ ordered a neurological examination of the claimant, this diagnosis would have been available to him in completing the record. Second, petitioner asserts that the ALJ's determination that the petitioner was not under a disability is unsupported by substantial evidence. Further to this point, petitioner claims that the ALJ improperly classified her past work, and failed to develop and consider evidence of the petitioner's pain.


 An individual's eligibility for benefits under the Supplemental Security Income program [SSI] is conditioned upon the claimant's compliance with certain statutory requirements. First, the claimant must meet the income and resource requirements set forth in 42 U.S.C. §§ 1382a and ...

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