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VASQUEZ-ORTIZ v. APFEL

February 26, 1999

JOSE VASQUEZ-ORTIZ, PLAINTIFF,
v.
KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Heckman, United States Magistrate Judge.

  DECISION & ORDER

In accordance with the provisions of 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct any and all further proceedings in the above captioned matter (Item 24). Plaintiff commenced this action pursuant to 42 U.S.C. § 405(g) in order to challenge the determination of the Social Security Appeals Council. Both plaintiff and defendant move for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Items 12, 15, 18). Defendant also moves to amend the prior motion for judgment on the pleadings, seeking to remand the proceedings to the Commissioner of Social Security for further administrative proceedings pursuant to the sixth sentence of 42 U.S.C. § 405(g) (Item 21).

BACKGROUND

Plaintiff is a 45 year old Hispanic male who spent most of his life in Puerto Rico. While the record is unclear as to the amount of school plaintiff actually completed, it is clear that plaintiff did not complete a basic elementary education.*fn1 In Puerto Rico, plaintiff was employed as a farm laborer, cutting sugar cane and picking tobacco (R. at 178, 195). Plaintiff has not held a job since leaving Puerto Rico. He does not drive, and is unable to take the bus by himself. Plaintiff speaks Spanish, and his English speaking abilities are limited to a small number of phrases.

Plaintiff alleges that he is disabled due to chronic back problems, recurring migraine headaches, alcoholism, and a nervous disorder (R. at 174, 191). In further support of his appeal of the ALJ's decision, plaintiff's representative points out that plaintiff is mentally retarded (R. at 5). In consideration of plaintiff's application for Supplemental Security Income (SSI), plaintiff's physical, mental, and psychological health was evaluated by several physicians and psychologists.

Dr. Salvatore Galante's medical evaluation of plaintiff found no significant medical findings related to plaintiff's back (R. at 236-39). Plaintiff had "full range of motion in extension/flexion and side bending and twisting. [He][w]alks on both heels and toes without any discomfort. Straight leg raising sign is negative" (R. at 237). The x-rays showed a degenerative fact joint arthropathy at L5-S1 (R. at 238). However, the radiologist concluded that it was otherwise a normal examination (R. at 238). Dr. Galante noted that plaintiff was also being treated for cluster headaches (R. at 237).

Dr. Paul Akman examined the plaintiff on April 23, 1994 (See R. at 241-45). Plaintiff told Dr. Akman about his alcoholism, sleeplessness, and hallucinations, as well as being on medication for cluster headaches (R. at 241-42). Dr. Akman indicated that the findings of plaintiff's physical examination were compatible with degenerative arthritis of the lumbar spine (R. at 244). He also concluded that plaintiff "is obviously an alcoholic" (R. at 244). However, Dr. Akman found no limitation on employability (R. at 243).

On June 23, 1994, plaintiff was examined by Dr. Won Hoon Park (See R. at 246-48). Dr. Park, who is a member of the American Board of Psychiatry and Neurology, found plaintiff in need of a comprehensive treatment program, including detoxification and rehabilitation (R. at 247). Plaintiff was diagnosed as being alcohol dependent, and having possible borderline intellectual functioning (R. at 247).

The record further indicates that, in another mental health examination, plaintiff had been diagnosed a paranoid schizophrenic, and it was noted that he suffers from alcohol abuse (R. at 249). Plaintiff was prescribed thorazine, and was referred to a Spanish speaking agency to get plaintiff into a detoxification program and a day treatment program for Spanish speakers.

Following a second psychological examination, Dr. Mitchell Parker concluded that he was unable to assess plaintiff's intellectual potential (R. at 256). Because of plaintiff's inability to complete the tests due to fear and anxiety, Dr. Parker concluded that his assessment could not be seen as a "valid estimate" (R. at 256). However, Dr. Parker was left with the impression that plaintiff was a man with extremely limited abilities (R. at 257).

PROCEDURAL HISTORY

Plaintiff filed an application for Supplemental Security Income (SSI) on February 11, 1993 (R. at 125-28). Plaintiff's request for SSI was based on complaints of migraine headaches and back problems. The Social Security Administration denied plaintiff's request on July 8, 1993 (R. at 129-37). It was explained that plaintiff's condition was not severe enough to keep him from working based on his age, education, training, and work experience (R. at 137).

Rather than appeal the July 8, 1993, decision, plaintiff filed a new application for SSI on February 22, 1994 (R. at 147-53). Plaintiff's second application was denied on March 4, 1995 (R. at 154-57). On May 3, 1995, plaintiff filed a request for reconsideration, arguing that the Social Security Administration's determination was "contrary to the law and facts" (R. at 158-59). On June 28, 1995, the Social Security Administration affirmed the prior finding that plaintiff was not disabled (R. at 170-73).

Plaintiff requested a hearing by an Administrative Law Judge ("ALJ") on September 6, 1995, and a hearing was held on December 4, 1995 (See R. at 68-124). On March 26, 1996, the ALJ, Bruce R. Mazzarella, issued a decision holding that plaintiff was not entitled to SSI on March 26, 1996 (R. at 34-60). The ALJ found that plaintiff's allegations of migraine headaches and back pain were out of proportion to the clinical and laboratory findings. In addition, the ALJ found that plaintiff's "alleged complaints and functional limitations are grossly exaggerated, inconsistent over time and with his physical appearance, and unsupported by medical evidence" (R. at 59). Based on plaintiff's "functional capacity, age, education, and work experience," the ALJ concluded that plaintiff is not disabled (R. at 59).

Plaintiff requested review of the ALJ's decision (R. at 29-31). Plaintiff's request was denied by the Social Security Appeals Council on October 4, 1996 (R. at 26-27). Additional correspondence and evidence was then sent to the Appeals Council on plaintiff's behalf (R. at 5-25). On December 17, 1996, the Appeals ...


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