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RODRIGUEZ v. CALLAHAN

July 25, 1997

JULIAN RODRIGUEZ, Plaintiff, against JOHN J. CALLAHAN, Commissioner of Social Security, Defendant.


The opinion of the court was delivered by: CHIN

 CHIN, D.J.

 Plaintiff Julian Rodriguez ("Rodriguez") brings this action pursuant to section 205(g) of the Social Security Act (the "Act"), as amended, 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3), challenging the final determination of the Commissioner of Social Security *fn1" (the "Commissioner") that Rodriguez is not entitled to Supplemental Security Income ("SSI") benefits based on disability. Rodriguez moves to remand and the Commissioner moves for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) affirming his decision. For the reasons discussed below, Rodriguez's motion for a remand is granted and the Commissioner's motion for judgment on the pleadings is denied.

 BACKGROUND

 A. Prior Proceedings

 Rodriguez filed an application for SSI benefits on September 16, 1993. The Commissioner initially denied the application and Rodriguez requested reconsideration on March 16, 1994. On April 7, 1994, the Commissioner affirmed the denial of benefits. Rodriguez requested a hearing before an administrative law judge on May 16, 1994.

 Administrative Law Judge Louis V. Zamora (the "ALJ") held a hearing on Rodriguez's claims on February 10, 1995. Rodriguez appeared pro se at the hearing and testified with the help of a Spanish interpreter. Two weeks later, on February 23, 1995, the ALJ determined that Rodriguez was not disabled within the meaning of the Act and, therefore, was not entitled to benefits. This became the Commissioner's final decision when the Appeals Council denied Rodriguez's request for review.

 Plaintiff pro se commenced this action for judicial review of the Commissioner's decision on March 29, 1996. On July 2, 1996, Harlem Legal Services, Inc. filed a Notice of Appearance as Rodriguez's counsel in this action.

 B. Facts

 Rodriguez was born on March 25, 1955, in the Dominican Republic and immigrated to the United States in 1970. He was 39 years old at the time of his February 1995 hearing. Rodriguez has either a seventh grade (Tr. 54) or eighth grade (id. at 18) education and can speak only "a little" English. (Id. at 17, 18, 54). At his hearing, Rodriguez testified with the assistance of a Spanish interpreter. (Id. at 11, 14, 16). Although the ALJ reminded him that he had a right to counsel, Rodriguez waived his right and agreed to proceed without representation. (Id. at 16).

 On November 26, 1991, Rodriguez became a clinic patient at St. Nicholas Medical. (Id. at 51, 59, 64). In a note dated September 16, 1993, Gustavo Insignares ("Insignares"), a physician's assistant at St. Nicholas Medical, stated that Rodriguez suffered from insulin dependent diabetes mellitus, but that his condition was under medical control. (Id. at 64).

 On November 2, 1993, Insignares completed a medical report that indicated that Rodriguez's capacity to lift, carry, sit, stand, walk, push and/or pull suffered no limitation. (Id. at 67). Additionally, he had no postural, manipulative, visual, communicative or environmental limitations. (Id. at 67-68). Insignares also noted that Rodriguez's electrocardiogram was normal and that he did not suffer from fatigue. (Id. at 67). Finally, the report stated that Rodriguez did not display behavior suggestive of a significant psychiatric disorder, but that he occasionally experienced urinary frequency. (Id. at 66).

 Rodriguez testified that he suffers from headaches, back and arm pain, numbness in his hands and dizziness. (Id. at 19). As a result, he can only grasp or hold "for a minute or two." (Id. at 20). Rodriguez explained that he has difficulty dressing himself because lifting his arms causes him pain. (Id. at 22). He also stated that he "cannot walk long, two or three blocks" (id. at 20-21), and that his "blurry vision" prevents him from being able to drive a car. ( Id. at 18). Rodriguez added that, while he can travel on public transportation without assistance, he can do so only if his destination is "not too far away, a short trip." (Id. at 18). He further ...


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