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VELEZ v. BARNHART

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 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 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.

  B. Merits

  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.

 Conclusion

  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.

  Respectfully submitted.


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