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November 13, 1996

JOHN J. FONSECA, Plaintiff,
SHIRLEY S. CHATER, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: HECKMAN

 This matter was referred to the undersigned by the Hon. Richard J. Arcara, to hear and report, in accordance with 28 U.S.C. § 636(b). Plaintiff, who was awarded disability benefits, disputes the disability onset date established by the Commissioner of Social Security (the Commissioner). He initiated this action seeking modification or remand of the Commissioner's decision, or reopening of his prior applications. Both parties have moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the following reasons, the Secretary's motion should be granted, and plaintiff's motion should be denied.


 Plaintiff was born on October 3, 1946, and is currently 50 years old (T. 49). *fn1" He is a high school graduate who has been employed as a truck driver, pipe fitter, operations clerk, meter reader, laborer and janitor (T. 97). Plaintiff was employed by Columbia Gas of New York, Inc. from April 10, 1972 to October 20, 1986, and by that company's successor, New York State Electric and Gas, for the period May 5, 1991 to January 14, 1992 (T. 214). Plaintiff has not worked since January 14, 1992 (T. 12).

 Plaintiff first applied for disability benefits on March 6, 1987, claiming he had been unable to work since October 17, 1986 because of an injury to his right arm (Item 13, Ex. C, p. 6). *fn2" The application was denied initially and on reconsideration (id. at p. 2). After a hearing held on November 18, 1987, Administrative Law Judge (ALJ) Margaret J. Quinn found that plaintiff could no longer perform his past relevant work because he was limited in the amount of weight he could lift, push or pull (id. at pp. 7-8). However, based on the record, ALJ Quinn found that plaintiff could perform light work that involved lifting no more than 20 pounds (id. at 8). Plaintiff was found not disabled within the meaning of the Social Security Act (id.).

 Plaintiff made a second application for benefits on July 5, 1990, claiming total disability as of October 17, 1986 due to the combined limitations of his right arm injury and a bilateral hearing loss (T. 80). Again his application was denied through the reconsideration level. On April 9, 1991, a hearing was held before ALJ F. Lambert Haley who found that the combined effects of plaintiff's lifting limitations and a 30 percent hearing loss did not compromise his capacity to perform light work (T. 174-79). Plaintiff was again found not disabled (T. 179).

 Plaintiff made a third application for benefits on May 4, 1993, alleging total disability as of January 14, 1992 due to high blood pressure and internal bleeding at the base of the brain (T. 182, 210). In addition, plaintiff referenced his two previous applications, claiming a 30 percent permanent hearing loss and a 30 percent loss in the use of his right arm (T. 215). His application was denied initially and on reconsideration (T. 185-88, 199-201). Plaintiff requested a hearing (T. 25).

 On October 26, 1994, a hearing was held at which plaintiff appeared pro se. ALJ James E. Dombeck determined that the medical record did not disclose any impairment of sufficient severity to meet the clinical criteria of Appendix 1, Subpart P to Regulations No. 4 (T. 12). However, he found that plaintiff's subjective complaints were consistent with the medical evidence presented and that the combined effects of plaintiff's severe hypertension, vertigo, cerebral ventricle hemorrhage (stroke), bilateral hearing loss, right arm injury, and persistent skin problems rendered him incapable of making a vocational adjustment to work existing in the national economy (T. 12-13). On November 3, 1994, plaintiff was found to have been disabled from February 20, 1993, the date of his hospitalization for severe hypertension and cerebral hemorrhage (T. 13-14). ALJ Dombeck also found that plaintiff was capable of performing light work prior to suffering his stroke (T. 15). This finding became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review (T. 5-6).

 On September 25, 1995, plaintiff commenced this action seeking modification or remand of the Commissioner's decision with respect to the disability onset date (Item 1). Plaintiff also requested that the court reopen his two previous applications that were denied (Item 13, p. 1). Plaintiff claims that as of March 20, 1987, he had the same combination of impairments upon which benefits were eventually granted (Item 13, pp. 10-11). He alleges that the Commissioner did not consider his severe hypertension in combination with his other disabilities for the period prior to February 20, 1993, and seeks to introduce additional records to substantiate his claim of an earlier disability onset date (Item 8, pp. 1-2).


 Plaintiff's action raises three issues: first, whether the Commissioner's determination that plaintiff's disability began on February 20, 1993 was supported by substantial evidence, second, whether the additional evidence plaintiff now presents justifies modifying or remanding the Commissioner's final decision of September 5, 1995, and third, whether plaintiff's prior applications should be reopened. Each issue is discussed in turn below.

 I. Judicial Review.

 The Social Security Act states that "the findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g)(McKinney's 1991). Substantial evidence is that which a "reasonable mind might accept as adequate to support a conclusion . . . ." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938), quoted in Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971); Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991). Under this standard, judicial review of the Commissioner's decision is limited, and the reviewing court may not try the case de novo or substitute its findings for those of the Commissioner. Richardson, supra, 402 U.S. at 401. The court's sole inquiry is "whether the record, read as a whole, yields such evidence as would allow a reasonable mind to accept the conclusions reached" by the Commissioner. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). The Commissioner's determination cannot be upheld, however, when it is based on an erroneous view of the law that improperly disregards highly probative evidence. Grey v. Heckler, 721 F.2d 41, 44 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979).

 Following his stroke, plaintiff continued to experience vertigo and lightheadedness (T. 267, 272). Plaintiff testified that Dr. Feldman, a consultant on his case, ruled out corrective surgery as being too risky (T. 38, 42-43). Plaintiff stated that there is no treatment that will restore his balance (T. 43).

 Dr. Arbaje, who treated plaintiff upon admission, indicated that plaintiff had been diagnosed with hypertension in 1985 (T. 235, 237). Dr. Feldman, who evaluated plaintiff on February 23, 1993, noted that plaintiff had high blood pressure in 1986, was treated and placed on anti-hypertensive medication, and discontinued medication in 1988 (T. 240). Dr. Feldman also stated that plaintiff had not experienced any vertigo prior to his hospitalization and had no history of seizures, syncope, headaches, or head pain (id.).

 The record includes information on impairments and injuries suffered by plaintiff prior to February 20, 1993. The record shows that plaintiff suffered a right arm injury in 1986 and had been restricted since that time to lifting, pushing, or pulling no more than 30 pounds (T. 35, 39, 177, 207, 215, 277). It also contains evidence of plaintiff's 30 percent hearing loss (T. 36-37, 175, 215, 240). A head trauma plaintiff had suffered some 4-5 years earlier is noted as well (T. 240). Reports were obtained from all physicians named by plaintiff in his application (T. 211).

 Plaintiff did not allege, in either his disability application or hearing testimony, that he experienced any symptoms or limitations as a result of high blood pressure prior to his stroke. When asked to describe his disability, plaintiff testified that he had two disabilities prior to February 1993, a right arm injury and a permanent partial hearing loss (T. 35-37, 210, 215). ALJ Haley, who considered plaintiff's second application for benefits, determined that the combination of those two impairments did not render plaintiff disabled (T. 174-79). Following ALJ Haley's decision on July 3, 1991, plaintiff did not seek medical treatment for any condition until his hospitalization on February 20, 1993 (Ex. 11, p. 3; Ex 13, p. 4).

 While impaired by his arm injury and hearing loss, plaintiff returned to work for New York State Electric and Gas from May 5, 1991 to January 14, 1992 (T. 38, 214). He resigned after eight months because his employer wanted him to lift in excess of his doctor's restrictions (id.). Plaintiff testified that he asked to be reassigned to another position, but his employer had no jobs available within his restrictions (T. 39). Plaintiff further testified that he sought other work between January 14, 1992 and February 1993, and ...

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