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CRESPO v. SHALALA

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


July 20, 1995

JUAN CRESPO, Plaintiff, against DONNA E. SHALALA, Secretary of Health and Human Services, Defendant.

The opinion of the court was delivered by: HAROLD BAER, JR.

MEMORANDUM AND ORDER

Plaintiff Juan Crespo brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383 (c) (3), as amended (the "Social Security Act"), in order to challenge a final decision of Donna E. Shalala, the Secretary of Health and Human Services (the "Secretary"). Defendant has moved for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The Secretary denied plaintiff's application for Supplemental Security Income ("SSI") benefits. Because there is "substantial evidence" to support the Secretary's finding that the plaintiff was not disabled, the Secretary's motion for judgment on the pleadings is granted. 42 U.S.C. § 405(g).

 I. BACKGROUND

 Plaintiff is a fifty-two year old male. Administrative Record ("R.") at 38. He has a second grade education, does not fully communicate in English and worked between 1968 and 1980 as a restaurant dishwasher and busboy. R. at 89. Plaintiff alleges he has been disabled and unable to work since 1980 due to arthritis, asthma, diabetes and an ulcer. R. at 38.

 A. Medical Evidence

 Plaintiff has been examined by several doctors during the period from November, 1989 through October, 1992. After a consultative examination by the Office of Disability Determination ("ODD") on June 6, 1992, plaintiff was diagnosed with: (1) diabetes controlled by diet; (2) asthma with mild obstructive lung disease, corrected with bronchodilators; (3) peptic ulcer disease under good control; (4) history of mental problems; (5) diffuse arthralgia with normal physical findings; and (6) vitiligo (failure of the skin to form melanin, with patches of depigmentation often having a hyperpigmented border). The examining physician concluded that plaintiff would be able to sit, stand, climb, and push, pull or carry heavy objects commensurate with his height and weight, provided that his asthma were brought under optimal control. R. at 140-41.

 Plaintiff currently receives 179 dollars in welfare every fifteen days, and 112 dollars in food stamps per month. R. at 39. Plaintiff requested and was granted a hearing which was held before Administrative Law Judge Linda E. Kupersmith (the "ALJ") on April 16, 1993. R. at 22-37. On June 2, 1993, the ALJ found that plaintiff was not eligible for supplemental security income under sections 1602 and 1614 (a) (3) (A) of the Social Security Act. R. at 9-19. The decision of the ALJ became the final decision of the Secretary on December 14, 1993, when the Appeals Council denied plaintiff's request for review. R. at 2-3. It is from that decision that plaintiff brought the instant action.

 II. DISCUSSION

 The Secretary's findings of fact are conclusive if they are supported by "substantial evidence." Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971); State of New York o/b/o Stein v. Secretary of Health and Human Services, 924 F.2d 431, 433 (2d Cir. 1991). Substantial evidence has been defined as "'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support [the] conclusion.'" Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)); Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983).

 In order to establish disability under the Act, plaintiff has the burden of demonstrating (1) that he was unable to engage in substantial gainful activity by reason of a physical or mental impairment that could have been expected to result in death or that had lasted or could have been expected to last for a continuous period of at least twelve months; and (2) that the existence of such impairment was demonstrated by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d).

 Plaintiff does not meet the burden in this case. There is substantial medical evidence that indicates that plaintiff had the functional capacity to perform work-related activities, except for work involving frequent lifting and carrying of more than twenty pounds. R. at 16. This evidence illustrates that not only was plaintiff able to engage in substantial gainful activity, but he could also return to his former job as a dishwasher because plaintiff reported that as a dishwasher, the heaviest weight he ever had to lift was twenty pounds. R. at 90. Thus, the ALJ properly concluded that the plaintiff was not "disabled" within the meaning of the Social Security Act.

 III. CONCLUSION

 Accordingly, defendant's motion for judgment on the pleadings is granted.

 SO ORDERED.

 New York, New York.

 July 20, 1995

 U.S.D.J.

 Harold Baer, Jr.

 U.S.D.J.


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