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ACOSTA v. BARNHART

April 10, 2003

CASIMIRO ACOSTA, PLAINTIFF,
v.
JO ANNE BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge

REPORT AND RECOMMENDATION

To the Honorable Loretta A. Preska, United States District Judge:

Pro se plaintiff Casimiro Acosta brings this action pursuant to § 205(g) of the Social Security Act ("the Act"), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") to deny Acosta disability and Supplemental Security Income ("SSI") benefits for the time period prior to June 1998. (Dkt. No. 2: Compl.; Dkt. No. 12: Motion to Reopen.) The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. Nos. 20-21.)

For the reasons set forth below, the Commissioner's motion for judgment on the pleadings should be GRANTED for the period prior to May 1996, but DENIED for the May 1996 to June 1998 time period. For the May 1996 to June 1998 time period, the case should be remanded to the Commissioner to obtain additional information from Acosta's treating physician about Acosta's physical and mental condition.

PROCEDURAL BACKGROUND

On June 11, 1996, plaintiff Casimiro Acosta applied for SSI and disability benefits, alleging an inability to work since January 1, 1993 due to back pain. (Dkt. No. 19: Administrative Record filed by the Commissioner ["R."] at 55-57, 64-69, 102-03; see also Dkt. No. 17:

Supplemental Administrative Record filed by the Commissioner ["SR."] at 98-100, 110-15.)*fn1
Acosta's application was denied initially (SR. 83-87) and upon reconsideration (SR. 90-93). At Acosta's request (SR. 94), a hearing was held before an administrative law judge ("ALJ") on June 2, 1997 (SR. 145-55). On December 23, 1997, ALJ Mark S. Sochaezewsky issued his decision finding that Acosta was not disabled. (SR. 131-138.) The Appeals Council denied Acosta's request for review on October 23, 1998. (SR. 158-60.)

On November 13, 1998 (filed as of February 23, 1999), Acosta filed a complaint in this Court to review the Commissioner's decision. (Dkt. No. 2: Compl.) On August 12, 1999, the action was remanded on consent to the Commissioner for further administrative proceedings pursuant to the sixth sentence of 42 U.S.C. § 405(g). (Dkt. No. 11: Stip. & Order.) On remand, the Appeals Council vacated the ALJ's decision and remanded the case for further proceedings to obtain additional medical evidence. (SR. 161-62.)

ALJ Sochaezewsky held a second hearing on February 3, 2000. (SR. 40-49.) On March 6, 2000, the ALJ issued his decision finding that Acosta was under a disability and entitled to SSI benefits as of September 1, 1999. (SR. 169-76.) Acosta appealed this decision.*fn2 (SR. 180.) The Appeals Council vacated the ALJ's decision and remanded the case to a new administrative law judge. (SR. 185-87.)

On December 14, 2001, a third hearing was held, by ALJ Mark J. Hecht. (SR. 50-82.) ALJ Hecht issued his decision on March 18, 2002, finding Acosta to be disabled and eligible for SSI payments since June 1998. (SR. 23-33.) This decision became the final decision of the Commissioner when the Appeals Council denied Acosta's request for review on August 6, 2002. (SR. 5-6.)

FACTS

Acosta's ALJ Hearings and Decisions Acosta's First Administrative Hearing and ALJ Decision On June 2, 1997, a hearing was held before ALJ Sochaezewsky. (SR. 145-55.) Acosta appeared without counsel but with an interpreter. (SR. 148.) Acosta testified that he was born in Santo Domingo and came to the United States in 1979. (SR. 148.) He completed the eighth grade, and can read and write simple English, but not speak or understand it. (SR. 149-50.) Acosta last worked about five years ago, in a factory, doing heavy work. (SR. 151.) He has not worked since January 1993, because of pain in his back, which also causes his right arm and leg to get numb. (SR. 151.) When asked if he had "any other limitations or other problems that affect [his] ability to work," Acosta responded "[n]o." (SR. 154-55.) Dr. Billini's June 1997 "Medical Report" form, summarizing Dr. Billini's treatment of Acosta from May 20, 1996 to June 24, 1997 (R. 91-97), was the only treating physician medical evidence in the record before the ALJ.

On December 23, 1997, ALJ Sochaezewsky denied Acosta's application for benefits. (SR. 131-38.) The ALJ found that Acosta "is not entitled to a period of disability or disability insurance benefits . . . and is not eligible for supplemental security income." (SR. 138.) The ALJ held that while Acosta had lower back pain and depression, Acosta's "assertions with respect to his limitations and his alleged inability to work are not credible, as they are not supported by the medical and other evidence." (SR. 136-37.)

As noted above, the Appeals Council denied Acosta's request for review of the ALJ's decision on October 23, 1998 (SR. 158-60) and shortly thereafter Acosta filed his federal complaint seeking review of the ALJ's decision. (Dkt. No. 2: Compl.) By stipulation of the parties, on August 12, 1999 the action was remanded to the Commissioner for further administrative proceedings. (Dkt. No. 11: Stip. & Order.) On remand, the Appeals Council ordered a hearing to obtain additional medical evidence, stating:

The Appeals Council has noted that the record does not contain a complete medical assessment of the claimant's ability to perform work-related activities from Dr. Billini, the claimant's treating physician. Dr. Billini has treated the claimant for both physical and mental impairments; however, he has not provided an assessment of the claimant's physical limitations, if any. Accordingly, the Appeals Council has concluded that additional evidence is necessary.
(SR. 162.)

Acosta's Second Administrative Hearing and ALJ Decision On remand, ALJ Sochaezewsky held a second hearing on February 3, 2000. (SR. 40-49.) Again, Acosta appeared without counsel but with an interpreter. (SR. 42-43.) After an off the record discussion, the ALJ put on the record that Acosta had advised the ALJ that his condition "got worse approximately five months ago," and so "he wants to amend the allege[d] onset date [to] September 1st of 1999." (SR. 45-46.) The ALJ advised Acosta that that would necessitate withdrawal of the Title II disability claim and proceeding for SSI benefits only from September 1, 1999, and Acosta confirmed that he wished to do so. (SR. 46.) Acosta testified that he has been unable to work since September 1, 1999 because of back pain and because he is experiencing hallucinations and hearing voices, for which he regularly sees a psychiatrist. (SR. 46-47.) The ALJ did not obtain any additional medical records from Dr. Billini.

On March 6, 2000, ALJ Sochaezewsky issued his second decision (SR. 169-76) finding that Acosta "has been under a disability since September 1, 1999, but not prior thereto." (SR. 176.) The ALJ explained that during the second hearing, Acosta had "amended his alleged onset date to September 1, 1999, and withdrew his request for [disability] benefits under Title II of the Act." (SR. 173.) From this new onset date, the ALJ concluded that Acosta's "back condition and worsening psychiatric condition" limited him to "a narrow range of work at the medium exertional level and [that Acosta] cannot perform the basic demands of work on a sustained basis." (SR. 175.)

Acosta appealed this otherwise favorable decision, arguing that he neither knowingly withdrew his application for Title II disability benefits nor consented to changing his onset date from January 1, 1993 to September 1, 1999. (SR. 180-84.) The Appeals Council granted Acosta's appeal and remanded the case to a different ALJ to obtain additional medical records and to "clarify the nature and severity of [Acosta's] impairments." (SR. 185-88.) Specifically, the Appeals Council directed the ALJ to obtain additional records from Dr. Billini:

However, as noted in the Appeals Council's previous remand order of December 6, 1999, the record does not contain a complete medical assessment of the claimant's ability to perform work-related activities from Dr. Billini. Dr. Billini has treated the claimant for both physical and mental impairments; but, he has not provided an assessment of the claimant's physical limitations, if any. In addition, Dr. Billini's report is not supported by treatment records to support his opinion regarding the claimant's mental limitations.
The Appeals Council also notes that Dr. Marcuzzo performed a mental status examination on August 8, 1997, and assessed no significant mental limitations. This report contradicts the information provided by Dr. Billini regarding the claimant's mental status.
Moreover, another treating physician, Dr. Abrams, reported on January 26, 2000, that the claimant has a history of a psychiatric disorder with severe symptoms. However, Dr. Abrams' report is also not accompanied by a medical assessment and treatment records. Accordingly, the Appeals Council concludes that additional evidence and a further evaluation are necessary.
Therefore, the Appeals Council vacates the final decision of the Commissioner in this case and remands this case to an Administrative Law Judge for further proceedings.
On remand, the Administrative Law Judge will obtain from Dr. Billini the claimant's clinical notes, treatment records, medicine regimen, objective tests and results, and a medical source statement about what the claimant can still do despite his impairments (20 C.F.R. § 404.1513(b) and/or 416.913(b)) to complete the record. The Administrative Law Judge will obtain similar reports from Dr. Abrams. The Administrative Law Judge will then further evaluate the claimant's functional limitations or residual functional capacity.
(SR. 186-87, record citations omitted.)

Acosta's Third Administrative Hearing On December 14, 2001, a third hearing was held, this time before ALJ Hecht. (SR. 50-82.) Acosta again proceeded without counsel but with an interpreter. (SR. 52.)

Acosta testified that he was born in 1941 and was sixty years old at the time of this hearing. (SR. 54.) He was educated through the eighth grade in the Dominican Republic. (SR. 56.) Acosta testified that he can read and write in Spanish, but can neither read nor write in English. (SR. 56.) He worked as a packager at a paper factory, frequently lifting heavy items up to seventy pounds, for approximately ten years until 1991 when the company closed. (SR. 57-58.) Acosta testified that he was unable to find subsequent employment and that since 1993 he has been unable to work because of back pain. (SR. 58-59.) He also testified that he has been suffering from a psychiatric illness since 1996. (SR. 62-63.) Acosta stated that he experiences auditory hallucinations for which he undergoes psychotherapy and takes medication. (SR. 63, 68, 74-75.) Also, in January 2001 he was diagnosed with colon cancer, for which he had surgery. (SR. 64-67.) The cancer has made him more depressed. (SR. 66.)

Acosta confirmed that Dr. Billini was "the first doctor [he] went to." (SR. 70.)

During the hearing, a medical advisor, Dr. Carlos Berrios, provided expert testimony based upon a review of the medical reports before the ALJ. (SR. 76.) Dr. Berrios asserted that as of June 1998 when Acosta started to see Dr. Abrams, but not prior to that date, Acosta's condition satisfied the criteria for affective disorders. (SR. 79-80.)

The Medical Evidence Before the ALJ in the Final Administrative Hearing The medical evidence in the record includes records from Acosta's treating physicians, Dr. Francisco Billini (SR. 200-06) and Dr. Robert Abrams (e.g., SR. 212-15), as well as consultative evaluations by Dr. K. Seo (SR. 189-90), Dr. Luigi Marcuzzo (SR. 207-08), and Dr. P.C. Pellegrino (SR. 192-99).

Dr. Billini The medical record before the third ALJ from Dr. Billini is the same "Medical Report" form that had been before the original ALJ. (R. 91-97; accord SR. 200-06.) There is no evidence in the record to indicate that, at the time of the third hearing, the ALJ attempted to obtain any additional medical records or information from Dr. Billini.

Dr. Billini treated Acosta once a month from May 20, 1996 until June 24, 1997. (SR. 200.) Acosta complained of "severe low back pain associated with severe anxiety disorder, insomnia, depressed mood, poor attention, poor concentration and poor memory." (SR. 200.) Dr. Billini observed Acosta to be "anxious, cooperative with poor eye contact." (SR. 201.) Dr. Billini found that Acosta had a decreased range of motion of hip frontal flexion (SR. 200-01) and a normal neurological exam (SR. 201). Dr. Billini diagnosed Acosta with "low back pain", "anxiety disorder" and "disthymia."*fn3 (SR. 203.) Additionally, Dr. Billini filled out a form for the Commissioner, entitled "Assessment of Ability to Engage in Work-Related Activities (Mental)." (SR. 204-06.) In this mental assessment form, Dr. Billini rated Acosta as having marked to extreme limitations upon his ability to work, writing that "severe anxiety and moderate low self esteem and depression interfere" with Acosta's "attention, concentration, memory and reality testing" and with his "functioning in social situations." (SR. 205-06.) Dr. Billini further wrote that Acosta "is unable to concentrate adequately in order to produce work or work related activities." (SR. 206.)

Dr. Seo On July 11, 1996, Dr. Seo examined Acosta for complaints of "occasionally sharp low back pain" and "difficulty sitting and standing." (SR. 189.) Dr. Seo reported that Acosta "walks in the examination room with a normal gait. He has no difficulty standing up from the sitting position nor getting on and off the examination table." (SR. 189.) X-rays indicated "[m]ild spondylosis and mild levoscoliosis."*fn4 (SR. 191.) Dr. Seo concluded that Acosta "may have some difficulty ...


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