application for SSDI benefits, the then-Secretary of Health and Human Services, Louis W. Sullivan, denied Cruz's application for SSI benefits both initially and upon reconsideration. Thereafter, Plaintiff requested a hearing before an ALJ, who, on June 14, 1988, affirmed Secretary Sullivan's determination that Cruz was not eligible for SSI benefits. On December 27, 1988, Cruz unsuccessfully appealed the decision to the district court.
After obtaining counsel, Plaintiff appealed the decision to the Court of Appeals for the Second Circuit. On August 8, 1990, the Court of Appeals determined that the SSI benefit hearing had been inadequate, because the ALJ should have conducted more thorough investigation due to the fact that Cruz had appeared pro se, and accordingly remanded Cruz's case. Cruz v. Sullivan, 912 F.2d 8 (2d Cir. 1990). At an administrative hearing held on April 3, 1991, Administrative Law Judge Heck found that Plaintiff had been "disabled" for purposes of SSI as of December 15, 1986, the date on which Cruz had filed his application for SSI benefits.
Secretary Sullivan denied Plaintiff's December 15, 1986 application for SSDI benefits. On August 8, 1991, four and one-half years after the application for SSDI benefits had been filed, Cruz requested reconsideration, relying in large part on the fact that he had recently been approved for SSI benefits. (Tr. at 37). Upon review of Cruz's file, the Secretary concluded that "a change of Title II onset prior to 12/15/86, or prior to 6/30/86, is not supported." ( Id. at 40). Accordingly, Cruz's application for SSDI benefits was denied on the basis that Cruz was not "disabled." ( Id. at 58-60). Cruz filed another request for reconsideration which was denied for similar reasons on December 16, 1991. ( Id. at 49, 58-60).
On June 2, 1992, Administrative Law Judge Jonathan Jacobs considered Cruz's case de novo. Cruz was represented by counsel and testified through the help of a Spanish interpreter. On July 22, 1992, after the ALJ gave Cruz's attorney additional time to locate some evidence, which she was unable to accomplish, the ALJ concluded that Cruz was "not disabled" on or before June 30, 1986, the date upon which his Social Security insurance expired. ( Id. at 8-15). Accordingly, the ALJ held that Cruz is not entitled to SSDI benefits. ( Id. at 15). On March 3, 1993, the decision of the ALJ became the final decision of the Secretary upon determination by the Appeals Council that there was no basis for changing the ALJ's decision. (Id. at 3). Cruz then brought this complaint on May 21, 1993, seeking SSDI benefits in addition to the SSI benefits he currently receives. In the present matter, Cruz claims an inability to work since November 15, 1982 due to asthma.
BACKGROUND AND MEDICAL HISTORY
Eugenio Cruz was born on September 11, 1947 in the Dominican Republic. (Id. at 33). Cruz has eight years of schooling (Id. at 11) and has a limited ability to communicate in English. (Id.). From 1968 to 1983, Cruz worked in a garment warehouse as a sorter and distributor. (Id.) Plaintiff testified that his work as a distributor required him to lift boxes weighing 55 or 60 pounds. (Id. at 25).
At the June 2, 1992 administrative hearing, Cruz claimed that in 1986 he had been unable to work because he suffered from asthma and lower back pain. (Id. at 29-31). During this period of inactivity in 1986, Cruz lived with his wife and two children. (Id. at 26). Plaintiff stayed at home during the day while his wife performed all the household chores. (Id. at 12).
Cruz testified that a doctor told him that his asthma is "emotional, or has an emotional component." (Id. at 29). Nevertheless, Cruz stated that odors such as gasoline, cigarette smoke, and detergents bring on an asthma attack. In addition, Plaintiff asserted that he became short of breath after climbing one flight of stairs or walking for one and one-half blocks. (Id. at 30). Because of Cruz's back problem, he claimed that the most he is able to lift is four pounds. (Id. at 30). Finally, Plaintiff claimed he smoked cigarettes through 1983, but that he has not smoked since then. (Id. at 12).
Cruz testified before the ALJ that his asthma began in 1983.
(Id. at 28). Although Cruz is unable to remember his initial asthma attack, he claims that the first serious one which he recalls occurred sometime in 1984. (Id. at 28-29). As noted by ALJ Jacobs, the record contains very little medical documentation concerning November 15, 1982, the date Cruz claims he was unable to work, through June 30, 1986, the date his Social Security insurance expired. (Id. at 11).
Several physicians treated Cruz from 1980 to June 12, 1992, the date of his administrative hearing before Judge Jacobs. On August 15, 1983, Dr. Fidel Larraondo treated Cruz for shortness of breath. Dr. Larraondo diagnosed Cruz as having bronchial asthma and noted that Cruz's physical examination was normal except for a few scattered wheezes.
(Id. at 71, 78, 11). Dr. Larraondo restricted Cruz from working in an environment requiring contact with detergents, chemicals or dust. (Id. at 78-79). In a medical report dated November 17, 1984, Dr. Larraondo diagnosed Cruz as having chronic asthmatic bronchitis. However, this report also states that Cruz is capable of working full-time in an environment lacking sudden changes in temperature and humidity, provided that Cruz is not exposed to dust, skin irritants and odors. (Id. at 81).
Apparently, from 1985 until early 1987, the year in which Cruz began treatment with Dr. Gheissary, Cruz's physician at the time of the June 1992 hearing, Cruz had two or three other treating physicians. However, according to Cruz's attorney, "the records of Mr. Cruz's treatment prior to December of 1986 have been either lost or destroyed." (Id. at 25). The only evidence of Cruz's medical condition during 1985 and 1986 is Cruz's own testimony and the reports of Cruz's physical examination by two consulting physicians, neither of whom found that Cruz was disabled.
Cruz claims that he had been treated by a Dr. Sebastian in June of 1986 (Id. at 24), and by a Dr. Agura, from approximately July 1985 until the time he began seeing Dr. Gheissary in the beginning of 1987.
(Id. at 28). Both physicians were located at the Academy Medical Center. However, Cruz's medical file while under both Dr. Agura's and Dr. Sebastian's care are unavailable.
(Id. at 24). Except for Cruz's testimony, there is no other mention of Dr. Agura in the record. Cruz also failed to provide any evidence of his visits to or treatments by Dr. Aronda, the other doctor Cruz claims to have seen in 1986.
Dr. Mahmood Gheissary began treating Cruz in January 1987. On a form dated January 18, 1991, Dr. Gheissary diagnosed Cruz with asthma and arthritis. Dr. Gheissary opined that in an eight-hour workday, Cruz could lift five-pound materials for approximately three to five hours and six to 10 pounds for one to three hours; bend, climb, and carry up to ten pounds for about three hours; sit upright for approximately one hour; stand for a maximum of two hours; and walk for a total of 30 minutes. Furthermore, Dr. Gheissary found that work on a regular and continuous basis would cause Cruz's medical condition to deteriorate. (Id. at 87). On a medical evaluation form dated January 17, 1991, Dr. Gheissary concluded that Cruz's condition not only prevented him from returning to his previous work in the garment warehouse, but that Cruz was unable to engage in any work on a sustained, full-time basis. (Id. at 88).
In order to assist in the re-evaluation of Cruz's application for SSDI benefits, in a letter dated June 2, 1992, ALJ Jacobs personally requested that Dr. Gheissary provide a detailed account of Cruz's condition from the time that he began treating Cruz. Judge Jacobs specifically requested that Dr. Gheissary provide him with "objective findings, clinical signs, reports of tests, x-rays and all procedures performed" on Cruz, as well as copies of all treatment notes. (Id. at 89).
However, the record does not contain any of the requested information except what is listed in the two medical documents previously mentioned, both completed in 1991.
In addition, as the ALJ noted, between November 15, 1982 and June 30, 1986, there is no evidence of Cruz requiring hospitalization or emergency room treatment. (Id. at 11).
To qualify for disability benefits, the claimant has the burden of proving that he is "disabled" within the meaning of the Social Security Act. 42 U.S.C. § 423 (d)(5); Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 642 (2d Cir. 1983). The Act defines disability as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or medical impairment which can be expected to result in death or which has lasted for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). "Substantial gainful activity" means work activity, done for pay or profit, involving significant physical or mental activities. 20 C.F.R. § 404.1572.
There is a five-step procedure that the Secretary must follow when evaluating disability claims:
First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform.