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VELEZ v. BARNHART

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. ยง 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 granted.

Background

  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 51).

  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 19).

  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).

 Procedural History

  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.

 Discussion

  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 ...


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