Marrero again testified through an interpreter, and at which a
medical expert and a vocational expert also testified. R. 261-80.
On December 8, 1997, the ALJ issued a third decision finding
Marrero had not been disabled at any time since October 7, 1991.
R. 242-49. The ALJ's decision became the final decision of the
Commissioner by virtue of an order of the Appeals Council dated
April 24, 1998. R. 231.
On March 26, 1999, this Court granted Marrero's motion for an
order pursuant to Fed.R.Civ.P. 60 giving him permission to reopen
the pro se action he had originally filed in 1994. On May 14,
1999, the Commissioner moved for judgment on the pleadings
pursuant to Fed.R.Civ.P. 12(c). On July 7, 1999, this Court
issued an order notifying Marrero of the nature and consequences
of the Commissioner's motion, in accordance with McPherson v.
Coombe, 174 F.3d 276, 282 (2d Cir. 1999). On August 31, 1999,
Marrero submitted a letter to the Court, which shall be construed
liberally and shall be deemed to be his response to defendant's
motion. See Diezcabeza v. Lynch, 75 F. Supp.2d 250, 252
II. Factual history
A. Marrero's testimony
According to testimony given by Marrero at the hearings, he was
born in Puerto Rico on June 11, 1945, and moved to the
continental United States in 1988. R. 46, 303. He was educated
through the seventh grade in Puerto Rico, reads and speaks
Spanish, and can communicate a little in English. R. 47, 266,
304. Marrero's only work experience consisted of employment as a
jeweler and a fruit packer in Puerto Rico between 1972 and 1974.
R. 34, 291. From 1974 to 1988, he lived with and was supported by
his father. R. 293-94. After moving to the United States, he
spent three years living on the streets. R. 37, 294. Since 1992,
Marrero has lived with his wife in an apartment in New York City.
R. 47, 212, 265, 304.
Marrero contends that he is unable to work because of a nervous
condition that renders him unable to walk or to talk, affects his
memory and ability to concentrate, and causes him to suffer
insomnia. R. 267-69. He does not presently receive treatment or
medication for this condition, and he has not received regular
medical treatment since approximately 1987. R. 267. Marrero has
admitted that he has no physical limitations that affect his
ability to work, and that he has no trouble sitting, standing,
walking, bending, lifting, pushing, or pulling. R. 40, 267-68,
297. He has also testified that he is able to help with cooking,
cleaning, shopping, and housework and that he is able to travel
about the city by himself using public transportation. R. 265,
B. The medical evidence
Medical documentation added to the record after this Court's
remand indicates that Marrero was admitted to a psychiatric
hospital in Puerto Rico on an involuntary basis several times
between 1982 and 1987. R. 422, 446, 721, 727, 874, 889, 942. He
was diagnosed as suffering from paranoid schizophrenia and he
escaped from the hospital on numerous occasions. R. 422, 446,
721, 860, 923, 933. These records also reflect that Marrero
suffered from problems with drug and alcohol abuse. R. 731, 803,
On November 26, 1991, Marrero underwent a comprehensive
physical examination by Dr. Edmond B. Balinberg. R. 158-60. Dr.
Balinberg concluded that Marrero's capacity to perform
work-related activities "was within normal limits," except for a
mildly enlarged liver and the presence of boils. R. 160. Dr.
Balinberg further noted that "[h]is main problem is a psychiatric
problem" and that Marrero should be referred for psychiatric
evaluation. R. 160.
On December 1, 1991, Marrero was examined by a consulting
psychiatrist, Dr. Carlo Filiaci. R. 162-63. Dr. Filiaci found
that Marrero could "express himself in a logical and coherent
manner," that he could read and write in Spanish and to
some extent in English; that there was "no psychomotor
retardation" or "deterioration in personal habits"; and that he
could follow simple instructions but had limited ability to
concentrate. R. 163. Dr. Filiaci also found that Marrero was
"slightly depressed and anxious"; that his affect was
"appropriate, but constricted to this anxious, rather shallow
mood"; that his memory was "grossly intact"; and that he was
"fully oriented" as to times, places and persons; but that he
refused to cooperate on simple tasks. R. 163. Dr. Filiaci
Patient is able to understand and carry out simple
instructions, but would be unable to respond
appropriately to supervision, cooperate with
co-workers and withstand work pressure in a work
setting because of severe inability to concentrate
and anxiety, but it is difficulty [sic] to say
whether patient is somehow malingering.
R. 163. Finally, Dr. Filiaci diagnosed Marrero as suffering from
"major depression . . . with possible malingering" and a
"borderline character." R. 163.
Other medical documentation indicates Marrero was treated for
abscesses between January and June 1991 at Lincoln Medical and
Mental Health Center in the Bronx ("Lincoln Hospital"). R.
147-57. On September 26, 1993, he was treated for a rash and knee
inflammation at Lincoln Hospital. R. 215-28. On three occasions
between December 27, 1993 and March 3, 1994, he returned to
Lincoln Hospital to seek help in obtaining medical records from
Puerto Rico. R. 338-40. On the latter three occasions, the
physicians with whom Marrero spoke noted that he demonstrated
paranoid ideas; that schizophrenia should be ruled out; that he
was alert and oriented with intact thought processes; and that
his mental condition was becoming more stable. R. 338-40.
At the hearing on September 10, 1997, Dr. Edward Halperin, a
psychiatrist, testified after having reviewed Marrero's medical
records. R. 270-74. Dr. Halperin diagnosed Marrero's condition as
residual paranoid schizophrenia, meaning that Marrero had
suffered a schizophrenic episode at one point but the illness had
since gone into permanent or semi-permanent remission. R. 273;
Def.'s Mem. Supp. Motion to Dismiss, at 7 n. 3. Dr. Halperin
suggested that certain of the symptoms previously interpreted as
schizophrenia may have been caused by Marrero's substance abuse,
but that his records indicated no such abuse in recent years. R.
273. Dr. Halperin opined that Marrero did not meet the criteria
of any impairment listed in the federal regulations; that he
would be able to cooperate with simple instructions, but that he
would have difficulty performing complex tasks or following
complex instructions. R. 273-74. Dr. Halperin stated that he was
unable to comment on Filiaci's suggestion that Marrero was
malingering. R. 274.
On August 19, 1997, Marrero underwent a nonverbal intelligence
evaluation by Dr. Rochelle Sherman. R. 968-70. Dr. Sherman noted
Marrero's "less than poor motivation and malingering" but also
commented on his adequate social and communication skills,
attention, memory, and judgment, as well as on his lack of
"paranoia, major clinical depression or other psychopathology."
R. 968-69. Dr. Sherman further found that he was "independent in
all self-care activities," and that his IQ rating below 40 did
not represent his intellectual abilities, particularly in light
of his random and inconsistent responses to testing. R. 969. Dr.
Sherman concluded that "Marrero appears able to attend to,
comprehend, remember and carry out basic instructions" but that
he "may display an oppositional attitude which may interfere with
work performance." R. 969. Dr. Sherman diagnosed Marrero as
suffering from alcohol dependence in remission and ruled out any
malingering or antisocial personality disorder. R. 970.
On August 20, 1997, Marrero was interviewed by a consulting
psychiatrist, Dr. Alain DelaChapelle. R. 971-72. Dr.
commented that Marrero was alert and cooperative, engaged in
coherent and relevant speech, had no thinking disorder, did not
suffer from paranoia or delusions, and showed intellectual
functioning "in the average range" in his responses to various
tests. R. 971-72. At the same time, he remarked that Marrero
established poor eye contact, and that the examination was
"marked by an apparent evasiveness and vagueness regarding
factual details of his background history." R. 971. Dr.
DelaChapelle also noted that Marrero "can take care of his needs,
do household chores, and use public transportation." R. 972. Dr.
In my opinion, patient has a satisfactory ability to
understand, remember and carry out instructions, and
a satisfactory ability to respond appropriately to
supervision, co-workers, and work pressures in a work
R. 972. Finally, Dr. DelaChapelle diagnosed Marrero as suffering
from anxiety disorder and from alcohol dependence in remission.
The next month, Dr. Halperin reported that his original opinion
had not changed after reviewing the reports from Dr. Sherman and
Dr. DelaChapelle. R. 973. He found that Dr. DelaChapelle
accurately described Marrero and concurred in his diagnoses. R.
973. He highlighted Dr. Sherman's suggestion that Marrero had
been malingering as well as the conclusion that Marrero's IQ
rating was unreliable. R. 973. Dr. Halperin also noted that
Marrero "is not retarded." R. 973.
C. The vocational evidence
At the hearing on September 10, 1997, vocational expert William
L. Mooney testified after having reviewed the record in Marrero's
case. R. 276-79. The ALJ asked Mooney whether any jobs exist in
the national or regional economy that would be suitable for a
person of Marrero's age, education, and vocational background,
who possesses a full range of capacities but who cannot perform
complex tasks or follow complex instructions. R. 277. In
response, Mooney testified that jobs suitable for such a person
would include the simple tending of automatic machinery, for
which about 80,000 positions exist in the New York region and
twelve million nationally; porter-type employment, for which
about 10,000 positions exist in the New York region and one
million nationally; and tray line employment, for which about
2,000 to 3,000 positions exist in the New York region and 300,000
nationally. R. 277-78.
I. Standard of review
In reviewing a denial of benefits, a court may reverse the
Commissioner's finding only if that finding "is based upon legal
error or is not supported by substantial evidence." Rosa v.
Callahan, 168 F.3d 72, 77 (2d Cir. 1999); see
42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct.
1420, 1427, 28 L.Ed.2d 842 (1971). Substantial evidence is "`more
than a mere scintilla. It means such evidence as a reasonable
mind might accept as adequate to support a conclusion.'"
Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct.
206, 217, 83 L.Ed. 126 (1938)); see Rosa, 168 F.3d at 77. "The
substantial evidence test applies not only to findings of basic
evidentiary facts but also to inferences and conclusions drawn
from such facts." Tillery v. Callahan, No. 97 Civ. 0438, 1997
WL 767561, at *2 (S.D.N.Y. Dec.11, 1997) (citation omitted).
Moreover, a court "`may not substitute its own judgment for that
of the [Commissioner], even if it might justifiably have reached
a different result upon a de novo review.'" Jones v. Sullivan,
949 F.2d 57, 59 (2d Cir. 1991) (quoting Valente v. Secretary of
Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)). See
generally Kocaj v. Apfel, No. 97 Civ. 5049, 1999 WL 461776, at
*3 (S.D.N.Y. July 6, 1999).
II. Disability under the Act
In order to establish disability under the Act, a plaintiff has
the burden of
demonstrating (1) that she was unable to engage in substantial
gainful activity by reason of a physical or mental impairment
that could have been expected to result in death or that had
lasted or could have been expected to last for a continuous
period of at least twelve months, and (2) that the existence of
such an impairment was demonstrated by evidence supported by data
obtained by medically acceptable clinical and laboratory
techniques. See 42 U.S.C. § 423(d)(1)(A), (d)(3); Rosa, 168
F.3d at 77. Establishing the mere presence of a disease or
impairment is not sufficient for a finding of disability under
the Act; the disease or impairment must result in severe
functional limitations that prevent the claimant from engaging in
any substantial gainful activity. See 42 U.S.C. § 423(d)(2)(A);
Rosa, 168 F.3d at 77.
The Commissioner has established a five-step sequential
evaluation for adjudication of disability claims, 20 C.F.R. § 404.1520
and 416.920, which the Second Circuit has articulated as
First, the [Commissioner] considers whether the
claimant is currently engaged in substantial gainful
activity. If he is not, the [Commissioner] next
considers whether the claimant has a "severe
impairment" which significantly limits his physical
or mental ability to do basic work activities. If the
claimant suffers such an impairment, the third
inquiry is whether, based solely on medical evidence,
the claimant has an impairment which is listed in
Appendix 1 of the regulations. If the claimant has
such an impairment, the [Commissioner] will consider
him disabled without considering vocational factors
such as age, education, and work experience. . . .
Assuming the claimant does not have a listed
impairment, the fourth inquiry is whether, despite
the claimant's severe impairment, he has the residual
functional capacity to perform his past work.
Finally, if the claimant is unable to perform his
past work, the [Commissioner] then determines whether
there is other work which the claimant could perform.
Rosa, 168 F.3d at 77 (quoting Berry v. Schweiker,
675 F.2d 464, 467 (2d Cir. 1982)).
If the claimant fulfills her burden of proving the first four
steps, the burden then shifts to the Commissioner to determine
the fifth step — whether there is alternative substantial gainful
work in the national economy that the claimant can perform. See
id. In making this determination the Commissioner must consider:
(1) the objective medical facts; (2) the medical opinions of the
examining or treating physicians; (3) the subjective evidence of
the claimant's symptoms submitted by the claimant, his family,
and others; and (4) the claimant's educational background, age,
and work experience. See Brown v. Apfel, 174 F.3d 59, 62 (2d
Cir. 1999) (per curiam). See generally Kocaj, 1999 WL 461776,
III. Substantial evidence supports the Commissioner's
In his decision dated December 8, 1997, ALJ Sochaczewsky
determined that the objective medical evidence failed to
establish that Marrero suffered from a disability at any time on
or after October 7, 1991, the date he submitted his application
for SSI benefits. R. 248. In reaching this determination, the ALJ
specifically found that "[t]he claimant's subjective allegations
are not supported by the evidence of record." R. 248. Marrero now
contends that this determination was incorrect and inconsistent
with his testimony. In particular, he asserts that to the extent
the ALJ relied on reports of malingering in order to discredit
his testimony, that reliance was improper, since any evasive
behavior exhibited during his examinations simply reflected his
fears of being forced to take medications or to stay in a