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ZORILLA v. CHATER

February 23, 1996

MIREYA ZORILLA, Plaintiff, against SHIRLEY S. CHATER, Commissioner of Social Security, * Defendant.


The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge:

 These are cross-motions for judgment on the pleadings on an appeal from a decision by the Administrative Law Judge ("ALJ") taken pursuant to § 1631(c)(3) of the Social Security Act, 42 U.S.C. § 1383(c)(3), which authorizes judicial review of determinations of the Commissioner of Social Security in accordance with 42 U.S.C. § 405(g). At issue is whether substantial evidence supports the finding by the Commissioner of Social Security ("Commissioner") that the plaintiff, Mireya Zorilla, is not entitled to Supplemental Security Income ("SSI") disability benefits under the Social Security Act (the "Act") for the period April 21, 1993 through September 6, 1994 because she was not disabled within the meaning of that program. At a hearing on February 10, 1994, the ALJ found that Zorilla was not disabled and, therefore, that she was not eligible for SSI benefits under Sections 1602 and 1614(a)(3)(A) of the Act, 42 U.S.C. §§ 1381a, 1382c(a)(3)(A). (R. at 10-14.) The Appeals Council denied Zorilla's request for review on May 20, 1994, (R. at 2-3), making the ALJ's decision the final decision of the Commissioner. *fn1" It is from this decision Zorilla now appeals.

  I.

 At the time she filed her application for SSI disability benefits, Zorilla was thirty-seven years old. (R. at 24, 30.) She emigrated from the Dominican Republic in 1970 when she was fifteen, (R. at 24), and, in spite of her long residence in the United States, she speaks, reads, and writes only in Spanish. (R. at 24, 83, 84, 89.) Zorilla has never held a job, (R. at 25, 81), and, while in the Dominican Republic attended school through the third grade. (R. at 24, 81.) She spends most of her time at home where she lives with a friend, enjoying television or the radio, or cleaning around the apartment. (R. at 28, 80.) She shops about every day, (R. at 28, 80), and visits her mother twice a week. (R. at 80.) Ms. Zorilla is able to use public transportation. (R. at 28, 80.)

 On May 2, 1993, Zorilla applied for SSI disability benefits. In the application, she alleged that she had been disabled since 1973 because of "low calcium," (R. at 31, 77), and further alleged that she suffered from an "iron deficiency . . . and has thyroid and nerve condition." (R. at 77.) Zorilla alleged she had received medical treatment at Beth Israel Hospital from 1973 to 1990, and at Bellevue Hospital Center from 1991 until the time of the application. (R. at 78-79.)

 The documentary evidence in support of the application consisted of a Clinic Evaluation Form from Bellevue Hospital Center. (R. at 92.) The form, dated May 6, 1993, indicates that Zorilla suffered from hypoparathyroid since 1975. (Id.) The form also indicates that Zorilla underwent a thyroidectomy in 1975. (R. at 92.)

 Following her application for benefits, Zorilla was examined by E.B. Balinberg, M.D. (Internal Medicine) on July 13, 1993. (R. at 93.) Dr. Balinberg's report confirms that Zorilla is "status post thyroidectomy," (R. at 94), and indicates that lab results confirm Zorilla has "normochromic normocytic anemia" with presence of degenerated neutrophils. (R. at 96.) Dr. Balinberg's diagnosis was "status post thyroidectomy and hypoparathyroidism possibly secondary to thyroidectomy." (R. at 95.) With respect to Zorilla's physical abilities, Dr. Balinberg concluded:

 
She has some restriction in her ability to perform heavy physical activities. She had today an appointment with a psychiatrist. Please see the opinion of the psychiatrist about her ability to function in a work setting.

 (R. at 95.)

 Another report, dated January 6, 1993, was compiled by D. J. Schelker, M.D., Zorilla's treating physician from Bellevue. Dr. Schelker reconfirmed Zorilla's hypoparathyroid condition and discussed her medication. (R. at 103.) Dr. Schelker did not report any conclusions or opinions regarding the patient's ability to function at work.

 Zorilla attended a psychiatric examination on July 13, 1993 conducted by Joshua Algaze, M.D. (Psychiatry). (R. at 97.) Dr. Algaze reported:

 
[Zorilla] has had a history of feeling occasionally sad, thinking about her health, feeling despondent and isolated. She denies auditory or visual hallucinations. Denies suicidal or homicidal ideations. Denies any currently [sic] psychiatric treatment or history of psychiatric hospitalizations. She at times expresses concern over her ability to function. She states she had become very isolated and withdrawn. She occasionally may have some crying spells. She feels from early on throughout her life she has had physical problems and occasionally she feels she is being "punished."

 (R. at 97.) Dr. Algaze also observed Zorilla to have been pleasant and cooperative, appropriately dressed and groomed, and that she maintained good eye contact. (R. at 97.) He reported, however, that her attention and concentration were "mildly impaired." (R. at 97.) Dr. Algaze made a diagnosis of "adjustment reaction with depression" and explained:

 
It is my opinion allegations are consistent with my findings. [Zorilla] suffers from severe difficulties in her personal, social and occupational adjustment that impair her ability to tolerate work pressures.

 Zorilla's application and the reports of Drs. Schelker, Balinberg and Algaze were reviewed by A. Dinoff, M.D. On the basis of the application and the reports, but without a physical examination of Zorilla, Dr. Dinoff concluded that no physical restrictions had been established, (R. at 44-51), and that the claimant suffered no significant mental limitations except her ability to "perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances" and "to interact appropriately with the general public." (R. at 67-68.) Dr. Dinoff concluded that the plaintiff could perform "low stress work." (R. at 69.)

 Following the initial denial of her application, Zorilla requested reconsideration. (R. at 56.) That request was denied on the basis of the same reports and application materials. (R. at 71-74.) No attempt was made to obtain additional information. The plaintiff then requested a hearing before the ALJ. (R. at 75.)

 II.

 On January 13, 1994, Zorilla, testifying through an interpreter, appeared pro se before Administrative Law Judge Newton Greenberg. (R. at 10, 23) . The only documentary evidence before the ALJ was the single page Clinical Evaluation Form signed by Zorilla's treating physician, Dr. Schelker, the two consultative reports from Drs. Balinberg and Algaze, and the conclusions of Dr. Dinoff drawn from those reports and Zorilla's application. The ALJ questioned Zorilla briefly about her history of thyroid problems and about the treatment she was receiving. Zorilla testified that she was under a doctor's care and was taking medication for her thyroid condition. (R. at 26.) She testified that the medication made her feel better but that her condition had not improved since she began taking medication in 1973. (R. at 27.)

 The ALJ also questioned Zorilla briefly about her depression. The following exchange took place:

 
Q: Then it is also an issue in reviewing this file that you claim that one of the reasons you cannot work is depression.
 
A: Yes.
 
Q: Now, did you complain to your doctor ...

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