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ROSE v. BARNHART

March 14, 2003

LEON P. ROSE, PLAINTIFF
v.
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: John S. Martin, Jr., United States District Judge

OPINION & ORDER

Leon Rose ("Plaintiff") brought this action pursuant to 42 U.S.C. § 405(g) and 1383(c)(3) for an Order and Judgment reversing a final determination of the Commissioner of Social Security (the "Commissioner") finding Plaintiff not disabled between January 1, 1996 and June 30, 1996 and therefore not entitled to disability benefits under Title II of the Social Security Act (the "Act").

The Commissioner now moves for judgment on the pleadings. Plaintiff cross-moves for remand for further administrative proceedings. Plaintiff argues that the Administrative Law Judge ("ALJ") failed to fully inform him of his right to representation and failed to obtain available lay testimony on Plaintiff's condition prior to the expiration of his insured status. Plaintiff also claims that the case should be remanded because of the existence of new evidence showing that he was disabled during the time period in question. For the reasons set forth below, Plaintiff's motion for a remand is granted.

PROCEDURAL BACKGROUND

Plaintiff applied for disability insurance benefits on August 19, 1998. The application was denied initially and upon reconsideration. Plaintiff was granted a hearing on May 11, 1999. On May 14, 1999, the ALJ issued a decision finding that Plaintiff was not disabled on or prior to June 30, 1996, the date Plaintiff last met the Act's insured status requirement. The decision became the final decision of the Commissioner on November 14, 2000, when the Appeals Council denied Plaintiff's request for a review. On February 26, 2001, Plaintiff appealed the Commissioner's decision in this Court. On July 30, 2001, the Commissioner filed a motion for judgment on the pleadings. In response, Plaintiff filed a cross motion on June 18, 2002, for remand for further administrative proceedings.

In a separate proceeding, Plaintiff applied for Supplementary Security Income ("SSI") benefits on January 22, 1997 and was found, after a hearing, to be disabled as of that date.*fn1 Although this decision concerns the period after January 22, 1997 and is based on medical evidence obtained at that time, the ALJ's findings are nevertheless instructive as to Plaintiff's likely condition in 1996, prior to the expiration of his insured status. At the hearing, Chief ALJ Zamora found that Plaintiff's records "describe a history of numerous physical problems including treatment for poorly controlled hypertension, chest pain, and shortness of breath since at least 1996." Judge Zamora also found Plaintiff to have had a "longstanding history of end stage asymmetric glaucoma, retinopathy in both eyes, and optic neuropathy. . . . [and] a history of sensory deficit in both hands, pulmonary disease, and prostrate problems." Finally, Judge Zamora cited, as credible, Plaintiff's testimony that he ceased working in 1993 due to problems in his right foot and eyes. ALJ Altz, who presided over Plaintiff's 1999 hearing, was aware of these findings.

In order to be eligible for disability insurance benefits, Plaintiff must establish that he became disabled on or before June 30, 1996, the last date he satisfied the insured status requirements of the SSA. 42 U.S.C. § 423(a)(1)(A), (c)(1); 20 C.F.R. § 404.131. The central issue before the Court is whether the ALJ adequately developed the record to determine whether Plaintiff was disabled from his alleged onset date of January 1, 1996 through June 30, 1996, the last date he was insured.

FACTS

Plaintiff, who claims that he is disabled due to high blood pressure, dizziness, migraine headaches, glaucoma, numbness in the right foot, and numbness in both hands, was born on November 2, 1944, and is now 59 years old. He attended school through the twelfth grade. After working as a truck driver for 20 years, Plaintiff stopped working in 1990 and received unemployment benefits. He resumed work in 1993 and worked for less than a year before stopping again. According to Plaintiff, the problems with his hands and eyes commenced in 1995. He did not see any doctors in 1995 because he hoped that his condition would get better over time.

In 1996, while having a tooth pulled, Plaintiff was informed that he had high blood pressure. Plaintiff did not seek medical care for the condition at that time, again hoping that the condition would get better. Plaintiff first sought treatment in November 1996, when he began to feel worse and to see "flashes."

On appeal, Plaintiff offers, among other things, affidavits from his common-law wife, son, cousin and two friends, all of whom state that Plaintiff was physically impaired as of 1995.

DISCUSSION

I. Scope of Review

Under the Act, the "findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. ยง 405(g). In reviewing the Commissioner's decision, the Court will set aside the "decision only where it is based upon legal error or is not supported ...


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