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MARRERO v. APFEL

March 16, 2000

DAVID DAVILA MARRERO, PLAINTIFF,
V.
KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Stein, District Judge.

  OPINION & ORDER

Plaintiff David Davila Marrero brings this pro se action pursuant to Section 205(g) of the Social Security Act ("the Act"), 42 U.S.C. § 405(g), to challenge a final determination by defendant Kenneth S. Apfel, Commissioner of Social Security, denying him Supplemental Security Income ("SSI") benefits. The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Because, as set forth below, substantial evidence supports the Commissioner's determination, defendant's motion is granted.

BACKGROUND

I. Procedural history

On October 7, 1991, Marrero filed an application for SSI benefits pursuant to Title XVI of the Act, asserting that he suffered from a "nervous condition" preventing him from working and therefore entitling him to benefits. R. 59-71.*fn1 On March 31, 1992, this application was initially denied, but Marrero requested reconsideration. R. 94-126. On November 3, 1992, a hearing was held before administrative law judge ("ALJ") Joseph K. Rowe, at which Marrero appeared and testified through a Spanish interpreter. R. 29-41, 284-98. On December 21, 1992, the ALJ issued a decision finding Marrero was not disabled and denying his claim for SSI benefits. R. 172-74. Marrero then requested administrative review of the ALJ's decision. R. 179. On March 31, 1993, the Appeals Council of the Social Security Administration vacated the decision and remanded for a new hearing with instructions to obtain additional medical records pertaining to treatment Marrero had received while living in Puerto Rico. R. 186-87. On remand, attempts to obtain the additional records proved unsuccessful. R. 189-209. On September 1, 1993, a second hearing was held before ALJ Rowe at which Marrero again testified through an interpreter. R. 42-58, 299-315. On September 24, 1993, the ALJ issued a second decision again finding Marrero was not disabled and denying his claim for SSI benefits. R. 10-16, 320-26. The Appeals Council denied Marrero's subsequent request for review. R. 3-4, 316-17.

On April 12, 1994, Marrero filed this pro se action pursuant to 42 U.S.C. § 405(g) in the Southern District of New York, contending that the determination below was not supported by substantial evidence. On March 26, 1996, pursuant to a stipulation between the parties, this Court remanded the case to the Commissioner for consideration of additional medical records from Puerto Rico. R. 333-34. On January 31, 1997, the Appeals Council remanded the case for a new hearing with instructions to update the medical evidence. R. 335-36. After the additional records were obtained, ALJ Mark S. Sochaczewsky held a third hearing on September 10, 1997, at which 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 (S.D.N.Y. 1999).

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, 267.

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, 862.

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 ...


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