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September 4, 1996

RAFAEL TORRES, Plaintiff, against DONNA E. SHALALA, Secretary of Health and Human Services, Defendant.

The opinion of the court was delivered by: SPRIZZO


 Pursuant to Title 42 U.S.C. ยงยง 405(g) and 1383(c)(3), plaintiff Rafael Torres brings the instant action challenging the decision of defendant Secretary of Health and Human Services ("the Secretary") denying his application for Supplemental Security Income ("SSI") disability benefits. Pursuant to Federal Rule of Civil Procedure 12(c), defendant moves to remand for further consideration at the administrative level. Pursuant to Federal Rule of Civil Procedure 12(c), plaintiff cross-moves for reversal of the Secretary's decision or, in the alternative, for remand.


 In 1972, plaintiff Raphael Torres suffered a spinal injury while working on an assembly line in a New York factory. Complaint ("Compl.") P 8. As a result of this injury, Torres stopped working in 1972. Id. Since then, Torres has not worked and has collected Workers' Compensation benefits. Id. Torres, who was born in 1945 and raised in Puerto Rico, received an education equivalent to the sixth grade in Puerto Rico, is only marginally literate in his native language of Spanish and has "little to no ability" to speak or understand English. Transcript of Administrative Hearing dated February 24, 1994 ("Tr.") at 23. *fn1"

 On ten occasions between October 1989 and April 1991, Torres sought treatment from physicians on call at the Bellevue Hospital Center ("Bellevue") for lower back pain syndrome and lower extremity radiculopathy. Tr. at 100-13. On October 24, 1989, physical examination revealed positive paraspinal muscle spasm of the lumbar region with mild to moderate tenderness on palpation. Id. at 113. Diagnostic radiology indicated degenerative joint disease of the lumbar discs and herniation in the spine between the fourth and fifth lumbar vertebrae. Id. However, Torres's neuromuscular formation was normal. Id. Bellevue physicians concluded that Torres's lower back pain syndrome developed as a result of a fall in 1972 and recommended Tylenol, Indocin, and Motrin. Id. at 113. On March 6, 1990, musculoskeletal examination was negative for previously indicated muscle spasm of lumbar region. Id. at 110. Thereafter, physicians at Bellevue characterized Torres's back condition as "stable." Compl., Ex. A at 2.

 On June 11 and 14, 1990, Bellevue physicians examined Torres for right upper-quadrant and abdominal pain described as a non-specific "bowel/gas pattern." Compl., Ex. A at 2. Upon deep palpation of the abdomen, Torres was non-tender. Tr. at 109. An upper gastrointestinal series revealed a duodenal ulcer secondary to Torres's use of anti-inflammatory medication to alleviate his lower back pain. Id. at 106. Bellevue physicians recommended conservative treatment of Zantac and Bentyl to relieve Torres's discomfort. Id. at 109. Thereafter, Torres was described as "doing well" with regard to his ulcer. Id. at 107.

 On July 31, 1990, Dr. Rafael Perez-Mesa, a private-practitioner, examined Torres for "colic-like" abdominal pain. Compl., Ex. A at 3. Although Dr. Perez-Mesa characterized Torres's gastrointestinal treatment at Bellevue as one for pancreatis, he made no independent findings of pancreatis. Id.

 On January 15, 1991, Dr. E. B. Balinberg, a consultative physician at the Bellevue rehabilitation clinic, examined Torres. Compl., Ex. A at 3. Dr. Balinberg found Torres to be well-developed, alert, oriented and cooperative. Tr. at 117-18. Torres displayed a good sense of relevance and was a reliable historian. Id. at 118. Examination of the abdomen, extremities, and heart revealed no abnormalities or atrophy. Id. Dr. Balinberg observed that Torres had a limited range of motion in his lumbar spine, causing difficulty or discomfort when bending, sitting, squatting, and rising from a seated or reclined position. Id. at 119. Dr. Balinberg also reported paraspinal muscular contracture but normal bone architecture and alignment and no demonstrable fracture. Id. Based upon these clinical findings as well as diagnostic radiology revealing localized chronic disc derangement, Dr. Balinberg concluded that Torres suffered from a lower back disorder with possible nerve entrapment. Id. at 120. In April 1991, two other Bellevue physicians examined Torres and reported similarly restricted physical movements, including difficulty getting up from the examining table and positive straight leg raises on the right at sixty degrees and on the left at forty-five degrees. Tr. at 207.

 On March 19, 1991, consultative psychiatrist Richard King assessed Torres's mental and emotional state at the Secretary's request and issued a report in relation thereto ("the King report"). Compl., Ex. A at 3. Dr. King found Torres to be coherent and relevant without a thought disorder. Tr. at 132. Torres informed Dr. King that in 1983 he had been hospitalized for psychiatric problems, including "weeping spells" and insomnia. Compl., Ex. A at 3. Torres also reported feeling anxious and depressed and hearing voices calling his name. Id. Dr. King also noted a history of substance abuse ending six years previously. Id. at 132. Upon mental status examination, Torres displayed an "average level" of intellectual functioning, an "adequate" ability to reproduce geometric shapes, and a "grossly intact" memory. Id. Torres's sensorium was clear, and he was oriented to time, place and person. Id. Dr. King reported that Torres watched television, performed routine household chores, including shopping during the day and managing his own financial affairs. Id. at 132-33. With regard to emotional limitations, Dr. King concluded that Torres had mild to moderate dysthymic disorder with anxiety and a history of substance abuse. Id. at 133. Dr. King gave a "fair" prognosis and recommended further psychiatric counseling. Id.

 With respect to physical limitations, consultative physician Dr. Cohen determined that Torres retained the capacity to occasionally lift and carry up to twenty pounds and to stand and/or walk for a total of six hours in an eight hour workday. Id. at 148. However, Torres's ability to push and pull controls in the lower extremities was "limited to light work." Id.

 On August 31, 1990, Torres applied for SSI disability benefits under Title XVI of the Social Security Act, as amended, on the ground that he suffered from a combination of mental and physical impairments which precluded him from working. Compl. P 11. On February 6 and April 8, 1991, the Secretary denied Torres's application initially and upon reconsideration, respectively. Tr. at 88, 94. Specifically, the Secretary concluded that Torres was capable of performing "light work," *fn2" and was therefore not disabled within the meaning of the Social Security Act. *fn3" Id.

 At Torres's request, a de novo hearing before administrative law judge ("ALJ") Ashley was held on August 6, 1991. Compl. P 11. At the hearing, Torres, appearing pro se, submitted medical reports regarding his lower back and abdominal impairments. Compl., Ex. A at 1-2. In addition, Torres testified that he was unable to perform basic daily activities as a result of his lower back pain. Id. at 2. Torres reported that he cannot drive an automobile or launder his own clothes although he cooks for himself and occasionally engages in other household chores. Id.

 On August 12, 1991, the ALJ denied Torres's application, holding that his residual function capacity, age, education, and prior work experience indicated that Torres was not disabled. Compl., Ex. A at 4-5. Relying upon Dr. King's characterization of his "mild to moderate" psychiatric incapacity, the ALJ found that Torres had "no significant nonexertional ailments." Id. at 5. As a result, the ALJ concluded that ...

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