United States District Court, S.D. New York
May 28, 2004.
RAMON VELEZ, Plaintiff, -against- JO ANNE BARNHART, Commissioner of Social Security, Defendant
The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
REPORT AND RECOMMENDATION
The plaintiff, Ramon Velez, brings this action pursuant to section
205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405 (g),
seeking review of a determination of the Commissioner of Social Security
(the "Commissioner") denying his application for disability insurance
benefits. The Commissioner has moved pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure for an order affirming the
Commissioner's decision and dismissing the plaintiff's action. For the
reasons that follow, I recommend that the Commissioner's motion be
Mr. Velez was born in Puerto Rico on April 2, 1945, and moved to the
United States mainland in 1966. (R. at 20).*fn1 He was 40 years old on June 1, 1987, the date he claims to have become disabled.
(R. at 51). Mr. Velez asserts that he has been unable to work since June
1, 1987, due to hypertension, vascular disease, and back pain. (R. at
Mr. Velez worked as a sewing machine operator in a leather factory for
approximately 15 years prior to 1987. (R. at 22). He claims that he became
disabled while incarcerated in 1987 and that he continued to suffer from
his disability after his release from prison in June 2001. (R. at 45,
51).*fn2 Mr. Velez worked as a porter while he was incarcerated. (R. at
As part of his application for benefits, Mr. Velez submitted a physical
examination report from the New York State Department of Correctional
Services ("DOCS") dated July 1990. (R. at 86-87). The report indicates
that Mr. Velez did not have any significant medical history or any
present medical problems as of July 1990. (R. at 86). Mr. Velez also
submitted a report by DOCS dated May 11, 1999, which indicates that at the time of the report, Mr. Velez
had two chronic conditions: hypertension, which began in 1990, and
Hepatitis C. (R. at 77).
Mr. Velez was examined by Dr. Babu Joseph on August 15, 2001 for
complaints of a seven-year history of back pain and hypertension. (R. at
88). Dr. Joseph reported that Mr. Velez had a normal gait, that all
joints had a full range of motion, that there was no evidence of spasm or
tenderness of the spine, that muscle strength was normal, and that there
was no muscle wasting in the extremities. (R. at 89-90). Dr. Joseph
concluded that Mr. Velez's ability to walk and stand and his ability to
lift and carry heavy objects were mildly restricted because of his low
back pain. (R. at 90). Dr. Alan Berlly examined Mr. Velez on the same day
and concluded that he had a normal lumbosacral spine. (R. at 92).
Mr. Velez presented two additional pieces of medical evidence at the
hearing before the ALJ: a medical report by Dr. Lydia Rang dated April
22, 2002 (R. at 108-111) and an evaluation of work-related activity
limitations by Dr. Shin Wey Lin, dated April 30, 2002 (R. at 112-116).
Dr. Rang reported that Mr. Velez had an eight-year history of mild lower
back pain and a seven-year history of hypertension as of the examination
date. (R. at 108). Dr. Lin reported that Mr. Velez was unable to lift
more than ten pounds and that he could only stand and/or walk for less than two hours in an
eight-hour workday. (R. at 112-14).
On August 1, 2001, Mr. Velez filed an application for disability
insurance benefits, alleging that he has been unable to work since June
1, 1987 due to hypertension, vascular disease and back pain. (R. at
43-45, 51). The application was denied. (R. at 30-32). Mr. Velez then
requested a hearing before an ALJ (R. at 34), and a hearing was held on
May 1, 2002. (R. at 14-27). Mr. Velez appeared at the hearing without
representation and testified through an interpreter. (R. at 16-26).
In a June 4, 2002 decision, the ALJ found that Mr. Velez had mild
hypertension and mild lower back pain on and prior to December 31, 1989,
the date on which he was last insured for disability insurance benefits.
(R. at 12). The ALJ concluded, however, that Mr. Velez did not suffer
from a disability as defined by the Social Security Act for the period
prior to December 31, 1989. (R. at 12-13). This became the final decision
of the Commissioner on November 1, 2002, when the Appeals Council denied
Mr. Velez's request for review. (R. at 3-5). The plaintiff then filed the
instant complaint on December 16, 2002.
In considering a motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure, the court must view
the allegations in the complaint as true and draw all reasonable
inferences in favor of the plaintiff. Deravin v. Kerik, 335 F.3d 195, 200
(2d Cir. 2003); Patel v. Searles, 305 F.3d 130, 134-35 (2d Cir. 2002). A
complaint will be dismissed only if "it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would
entitle him to relief." Patel, 305 F.3d at 135 (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)). Furthermore, a pro se complaint must
be construed liberally. Taylor v. Vermont Department of Education,
313 F.3d 768, 776 (2d Cir. 2002).
The scope of review of a determination of disability insurance benefits
involves two levels of inquiry. First, the court reviews the
Commissioner's decision to determine whether the Commissioner applied the
correct legal standard. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir.
1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). Second, the
Court must decide whether the ALJ's decision was supported by substantial
evidence. Teiada, 167 F.3d at 773; Balsamo, 142 F.3d at 79. Substantial
evidence in this context is "`more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229 (1938)). "[T]o determine whether the findings are
supported by substantial evidence, the reviewing court is required to
examine the entire record, including contradictory evidence." Brown
v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999).
A. Applicable Legal Standards
To be eligible for disability insurance benefits, a claimant must be
"insured" for such benefits for at least 20 of the 40 quarters preceding
the month in which the application for benefits is made; such "quarters
of coverage" are computed based on the claimant's earnings.
42 U.S.C. § 423(a)(1)(A) and (c)(1); 20 C.F.R. § 404.101(b); Arnone v.
Bowen, 882 F.2d 34, 37 (2d Cir. 1989). However, if the claimant can
establish a continuous "period of disability" during which his disability
prevented him from accruing earnings, then that period is excluded from
the 20-quarter computation. 20 C.F.R. § 404.130, 404.320(a).
Accordingly, a claimant who is not "insured" at the time of his
application can nevertheless receive benefits if he can establish that he
was insured at a prior time, and that he maintained his insured status
through the time of his application due to a continuous "period of
disability" that was excluded from the 20-quarter requirement. See
Arnone, 882 F.2d at 38.
A claimant is deemed to be disabled under the Social Security Act if he
is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than twelve months."
42 U.S.C. § 1382c(a)(3)(A). The claimant's impairment must be
"demonstrable by medically acceptable clinical and laboratory diagnostic
techniques," 42 U.S.C. § 423(d)(3), and be "of such severity that he is
not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy."
42 U.S.C. § 423(d)(2)(A). The claimant's impairment must be "severe,"
meaning that it "significantly limits [his] physical or mental ability to
do basic work activities." 20 C.F.R. § 404.1520(c) 404.1521.
In this case, the ALJ determined that Mr. Velez met the "special
earnings requirement" under the Act on June 1, 1987, the date Mr. Velez
claimed to have become disabled, and that Mr. Velez continued to meet the
earnings requirement until December 31, 1989. (R. at 12). The ALJ found
that while Mr. Velez suffered from "mild hypertension and mild low back
pain" on or before December 31, 1989 (R. at 12), such impairments did not
constitute a "disability as defined in the Social Security Act." (R. at
13). The ALJ concluded that "there is no medical evidence in the record"
to support a finding of disability for the period prior to December
31, 1989, and that Mr. Velez had no impairments that "significantly
limited his ability to perform basic work related function[s]" during
that time. (R. at 12-13).
There is substantial evidence in the record to support the ALJ's
findings. Mr. Velez applied for disability insurance benefits on August
1, 2001, and he does not dispute that his eligibility for disability
benefits based on the 20-quarter earnings requirement expired on December
31, 1989. In order to receive benefits, Mr. Velez must therefore
establish that he suffered a continuous "period of disability" beginning
on or before December 31, 1989, and continuing through the date of his
application. See 20 C.F.R. § 404.130, 404.320(a); Arnone, 882 F.2d at 38.
The earliest medical record that Mr. Velez provided is the physical
examination report by DOCS dated July 1990, which fails to indicate any
significant medical history or problems as of the date of the report.
(R. at 86-87). The later DOCS report, dated May 13, 1999, stated that
Mr. Velez experienced the onset of hypertension in 1990 and was currently
suffering from Hepatitis C. (R. at 77-80). Finally, at the administrative
hearing held on May 1, 2002, Mr. Velez testified that he had an
eight-year history of back pain (R. at 19); this testimony is consistent
with the report by Dr. Joseph dated August 15, 2001, which indicates a seven-year
history of back pain and hypertension (R. at 88). There is no evidence
that Mr. Velez sought medical treatment for any of these conditions prior
to December 31, 1989.
The medical evidence therefore suggests that Mr. Velez may have
developed hypertension as early as 1990 and that his lower back pain
began in about 1994. Moreover, while the evidence of medical treatment
received by Mr. Velez after December 31, 1989 "is not irrelevant" to a
determination of disability prior to that date, Arnone, 882 F.2d at 39,
there is no evidence that Mr. Velez's condition was as severe prior to
December 31, 1989 as it was at the time of such treatment. Id. (lack of
contemporaneous medical records not fatal if evidence could "conceivably
support a finding that [plaintiff's] condition when he visited doctors
[at the end of the period of disability] was the same as it had been
since [his injury].").
Even if some or all of Mr. Velez's conditions did accrue on or before
December 31, 1989, however, the evidence is insufficient to show that
those conditions rose to the level of a "disability," as defined by the
Act. To be considered disabled, a claimant must be "unable to engage in
any substantial gainful activity" due to his impairment.
42 U.S.C. § 1382c(a)(3)(A). The claimant's impairment must also be
"severe," meaning that it must "significantly limit . . . basic work activities" such as "walking, standing, sitting,
lifting, pushing, pulling, reaching, [or] carrying."
20 C.F.R. § 404.1521(b)(1). Here, Mr. Velez testified that after the date
of his claimed disability on July 1, 1987, and continuing until his
release from prison in June 2001, he worked as a porter while
incarcerated. (R. at 19). He testified that he used to "mop and sweep"
seven days a week, and that his job required him to carry a bucket full
of water. (R. at 19-20). Because he engaged in these basic work
activities well into his alleged period of disability, Mr. Velez has not
established that he was disabled prior to December 31, 1989, or that his
disability continued uninterrupted until the date of his application for
disability insurance benefits.
For the reasons set forth above, I recommend that the Commissioner's
decision denying Mr. Velez's application for disability insurance
benefits be affirmed and that judgment be entered dismissing the
complaint. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and
6(e) of the Federal Rules of Civil Procedure, the parties shall have ten
(10) days to file written objections to this report and recommendation.
Such objections shall be filed with the Clerk of the Court, with extra
copies delivered to the chambers of the Honorable William H. Pauley Ill, Room 2210, and to the chambers of the undersigned, Room 1960,
500 Pearl Street, New York, New York 10007. Failure to file timely
objections will preclude appellate review.