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April 19, 1995

EUGENIO CRUZ, Plaintiff, against DONNA E. SHALALA, Secretary of Health and Human Services, Defendant.


The opinion of the court was delivered by: KEVIN THOMAS DUFFY


 Plaintiff Eugenio Cruz brought this action pursuant to §§ 205(g) and 1631(c)(3) of the Social Security Act, as amended, 42 U.S.C. §§ 405(g) and 1383(c)(3) (1995) (the "Act"), challenging the decision of Defendant Donna E. Shalala, the Secretary of Health and Human Services (the "Secretary"), denying him Social Security Disability Insurance Benefits ("SSDI" benefits). Both parties have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Cruz has also made a request for attorney's fees. In the alternative, Cruz moves to remand the case for a new administrative hearing.

 Cruz challenges the Secretary's decision on the following grounds: (1) the decision is not supported by substantial evidence as required by § 205(g) of the Act, as amended, 42 U.S.C. § 405(g)(1995); (2) the Secretary erred in determining the date of the onset of claimant's disability; and (3) the Administrative Law Judge ("ALJ") erred by the applying the Medical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P, App. 2 (1994) to determine that Cruz was not disabled.

 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. *fn1"


 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. *fn2" (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. *fn3" (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 ...

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