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United States District Court, S.D. New York

June 25, 2004.

JO ANNE BARNHART, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge


Plaintiff, Isabel Gonzalez, brings this action on behalf of her brother, Faustino Gonzalez, seeking review of the final determination of the Commissioner of Social Security ("Commissioner") pursuant to § 405(g) of the Social Security Act ("Act"), 42 U.S.C.A. § 405(g) (West 2003), finding that Gonzalez had failed to establish good cause for waiver of the time limits for seeking review of 1985 and 1989 determinations by the Social Security Administration ("SSA") denying Mr. Gonzalez Supplemental Security Income ("SSI") benefits. Defendant moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure affirming the determination of the Commissioner that Plaintiff failed to establish good cause for waiver.

The Court has considered carefully the parties' submissions and the record below. For the following reasons. Defendant's motion for judgment on the pleadings is granted, and the decision of the Commissioner is affirmed. BACKGROUND

  Mr. Gonzalez was born in 1928, and came to the United States from Puerto Rico in the 1950s.*fn1 (Tr. at 16, 27.) He has a second-grade education and was employed for some time as a cook.*fn2 (Tr. at 17-18.) Mr. Gonzalez is illiterate in both English and Spanish but spoke both languages at the time of the 1985 and 1989 SSA determinations. (Id.)

  Mr. Gonzalez alleges that he was mentally impaired at the time of his 1985 and 1989 SSI denials. (Tr. at 118-119.) Ms. Gonzalez, the claimant's sister, asserted in an August 1998 letter that Mr. Gonzalez suffered from "alcoholism and [a] nervous condition." (Tr. at 115-116.) The record evidences only one instance of medical treatment during the relevant period, however. Mr. Gonzalez was admitted to the Bronx-Lebanon Hospital Center following a mugging on February 4, 1986, and was discharged on February 11, 1986. (Tr. at 322-323, 430.) He was treated for only physical ailments and was noted to be alert, oriented, and not confused throughout his hospitalization. (Tr. at 310, 312-315.) Hospital records indicate that he was admitted for a blunt chest trauma, and his principal diagnosis was a fractured right rib. (Tr. at 430.) Furthermore, Mr. Gonzalez indicated to hospital personnel that he had no previous illnesses or surgeries, and only drank alcohol "sometimes." (Tr. at 311, 433.) There is no evidence that he sought psychiatric treatment during the relevant period. Ms. Gonzalez provided additional evidence following the Administrative Law Judge's ("ALJ") determination in the form of two letters with attached documentation in March 2004 and April 2004. A January 1981 letter of termination of employment from Mr. Gonzalez's former employer, Maritime College, establishes that Mr. Gonzalez was terminated from his employment in 1981 for harassment of another employee and working under the influence of alcohol.


  Mr. Gonzalez filed an application for Social Security Income ("SSI") in February 1981, which was denied and not appealed. (Tr. at 7.) Mr. Gonzalez filed concurrent SSI and Social Security Disability Insurance Benefits applications in September 1985 and March 1989. Both were denied initially and on reconsideration. (Id.) Mr. Gonzalez did not appeal either reconsideration determination. (Id.) He was not represented by counsel for any of these filings or appeals. On March 8, 1993, the SSA informed Mr. Gonzalez of his potential eligibility for relief in connection with the Stieberger v. Sullivan class action. See 801 F. Supp. 1079 (S.D.N.Y. 1992); (Tr. at 38, 355-357.) After review, the SSA determined that Gonzalez did not qualify for such relief and notified him of this decision in January 1997, March 1998, and July 1998. (Tr. at 39-42, 45-46, 379-380.)

  Mr. Gonzalez filed an action in Federal district court for review of the SSA's decision relating to the Stieberger v. Sullivan class action. (Tr. at 375-378.) On April 27, 2001, Judge Sand of this court dismissed Mr. Gonzalez's claims under the class action with prejudice. (Tr. at 58-59.) Gonzalez and the government therefore entered into a stipulation providing that the SSA would consider whether Mr. Gonzalez qualified for an extension of the deadline for requesting administrative review of the 1981, 1985, and 1989 final decisions under Social Security Ruling ("SSR") 91-5p. Id.; SSR 91-5p, 1991 WL 208067 (S.S.A. July 1, 1991).

  Although the stipulation provided that the SSA was to review the 1981, 1985, and 1989 dismissals, and an initial letter reviews all three, only the 1985 and 1989 denials were pursued at the hearing before the ALJ. (Tr. at 14, 7-11, 58-61.) On January 30, 2003, the ALJ issued a decision finding that Mr. Gonzalez failed to prove good cause for waiver of the time limits to request review of the 1985 and 1989 SSA determinations. The Appeals Council denied Mr. Gonzalez's request for review on June 30, 2003, pursuant to 20 C.F.R. § 416.1467,*fn3 making the Commissioner's determination the final decision of the agency. (Tr. at 3-4.) Mr. Gonzalez's sister then filed the present pro se action for review of the Commissioner's 1985 and 1989 final determinations. Defendant has moved for judgment on the pleadings, arguing that the Commissioner's determination was supported by substantial evidence and should therefore be affirmed.


  A. Standard of Review

  The Act provides that the Commissioner's determination of fact is conclusive if it is supported by substantial evidence. 42 U.S.C.A. § 405(g) (West 2003). The Court will only set aside a decision "where it is based upon legal error or is not supported by substantial evidence." Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). The Court must therefore uphold the Commissioner's decision if it finds that the decision is based on substantial evidence, regardless of the existence of substantial evidence supporting the claimant's position. Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990). The Supreme Court defined substantial evidence as "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. NLRB, 305 U.S. 197, 229 (1938)); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). The substantial evidence test applies to findings of fact as well as inferences and conclusions drawn from basic evidentiary facts. Levine v. Gardner, 360 F.2d 727, 730 (2d Cir. 1968); Murphy v. Secretary of Health and Human Serv., 62 F. Supp.2d 1104, 1006 (S.D.N.Y. 1999). Thus, the Commissioner's determination of fact is controlling even if the reviewing court's analysis differs from the Commissioner's findings of fact. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982). Accordingly, the Court cannot decide the case de novo. Schaal, 134 F.3d at 501; Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991).

  B. Requirements for Waiver of Review Request Time Limit under Social Security Ruling 91-5P

  Pursuant to 20 C.F.R. § 416.1433, a request for a hearing by an ALJ must be made within 60 days of receipt of notice of the determination. However, under SSR 91-5p, the SSA may review final administrative decisions if it finds good cause for extension of the review deadline. To establish good cause for an extension under SSR 91-5p, the claimant must provide:

[E]vidence that mental incapacity prevented him or her from timely requesting review of an adverse determination, decision, dismissal, or review by a Federal district court, and the claimant had no one legally responsible for prosecuting the claim (e.g., a parent of a claimant who is a minor, legal guardian, attorney, or other legal representative) at the time of the prior administrative action.
Social Security Ruling 91-5p, 1001 WL 208067, *2 (S.S.A. July 1, 1991). To prove mental incapacity, the claimant must establish that he lacked the mental capacity to understand the procedure for requesting review. The following factors must be considered: inability to read or write, lack of facility in the English language, and mental or physical conditions limiting the claimant's ability to function alone. Id.

  C. The Administrative Law Judge's Findings

  The ALJ ruled on January 30, 2003, that Mr. Gonzalez had not established good cause for the late filing of a request for hearing pursuant to SSR 91-5p for the September 1985 and March 1989 applications because he could not satisfy both elements necessary for qualification. (Tr. at 7-11.) Although Mr. Gonzalez satisfied the second element and was not represented at the time of the 1985 and 1989 denials, the ALJ held that there was no evidence of mental impairment preventing him from timely requesting review of the SSA determinations, and he therefore could not satisfy the first element. Id.; Social Security Ruling 91-5p, 1991 WL 208067 (S.S.A. July 1, 1991).

  The ALJ's determination was based on evidence of physical ailments and a lack of evidence of mental ailments. (Tr. at 7-11.) Specifically, the ALJ considered evidence of Mr. Gonzalez's hospitalization during the relevant period, which was solely for physical injuries due to a mugging in 1986, and found other evidence of medical problems irrelevant as they occurred outside the time period in question. Id. At the conclusion of the hearing, the ALJ requested that Mr. Gonzalez's attorney, Mr. Suelto, provide additional evidence of mental impairment for the relevant period. Id.; (Tr. at 24-25.) Mr. Suelto did not provide such evidence. The ALJ found no good cause for an extension given the evidence in the record; no mental impairment existed at the time of the 1985 and the 1989 denials. (Tr. at 7-11.) Furthermore, the ALJ found that since Mr. Gonzalez was competent to file timely requests for review of the initial denials in both 1985 and 1989, Gonzalez was also competent to file a timely request for review of both reconsideration denials. Id.

  D. The Administrative Law Judge's Decision was Supported by Substantial Evidence

  The Court must determine whether the Commissioner's final determination of a lack of good cause under SSR 91-5p is supported by substantial evidence, including whether the additional evidence provided by the claimant's sister justifies remanding the case to the ALJ

  The Court finds that the Commissioner's determination that the record does not establish good cause for qualification under SSR 91-5p was supported by substantial evidence. To prove mental incapacity, a claimant must establish a "particularized allegation of mental impairment plausibly of sufficient severity to impair comprehension." Byam v. Barnhart, 336 F.3d 172, 182 (2d Cir. 2003) (citing Stieberger v. Apfel, 134 F.3d 37, 40-41 (2d Cir. 1997)). Mr. Gonzalez alleges that he was mentally impaired at the time of the 1985 and 1989 SSA denials and therefore lacked the capacity to understand the requisite procedure for requesting review. The medical evidence in the record, however, does not support this assertion. (Tr. at 118-119.) The record before the Commissioner reflected only one instance of medical treatment following the 1986 mugging. (Tr. at 322-323, 430.) Although Mr. Gonzalez was hospitalized for eight days, he was treated solely for physical ailments, and was discharged with a principal diagnosis of a fractured right rib. (Tr. at 430.) It was noted in his admission papers and throughout the hospitalization that he was alert, oriented, and not confused. (Tr. at 310, 312-315.) Hospital documentation also states that Mr. Gonzalez admitted to drinking "sometimes," which does not constitute substantial evidence of alcoholism. Mr. Gonzalez had no history of major illnesses or surgery. (Tr. at 311, 430.) Although the record contains extensive evidence of other medical problems throughout the 1990s, these occurred after the period of time under consideration. Since these documents do not provide evidence of medical incapacity at the time of the 1985 and 1989 SSA determinations, they are irrelevant to the question at issue. (Tr. at 115-119.)

  No additional evidence of mental incapacity was provided to the ALJ. Mr. Gonzalez was illiterate in both Spanish and English; however, there is no evidence to support the assertion that he had any mental or physical ailments preventing him from functioning on his own. (Tr. at 17-18.) Furthermore, Mr. Gonzalez appealed the SSA's 1985 and 1989 initial determinations denying benefits of SSI. (Tr. at 7.) The record therefore does not establish that Mr. Gonzalez had any mental impairment sufficient to impede severely his comprehension of the deadlines for appeal.

  The Act provides the Court with the option of remanding a case to the SSA if there is "new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C.A. § 405(g) (West 2003). The Second Circuit has articulated a three-part standard for remanding based on additional evidence:

An appellant must show that the proffered evidence is (1) new and not merely cumulative of what is already in the record, and that it is (2) material, that is, both relevant to the claimant's condition during the time period for which benefits were denied and probative. The concept of materiality requires, in addition, a reasonable possibility that the new evidence would have influenced the Secretary to decide claimant's application differently. Finally, claimant must show (3) good cause for her failure to present the evidence earlier.
Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1991) (citing Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988) (internal quotation marks and citations omitted)).

  The additional documentation submitted to the Court by Ms. Gonzalez in March 2004 and April 2004 does not satisfy the Second Circuit's three-part test because it does not constitute new evidence of mental problems preventing Mr. Gonzalez from seeking a timely review of the 1985 and 1989 determinations denying benefits. Ms. Gonzalez's letters make conclusory assertions regarding Mr. Gonzalez's condition but fail to provide evidence in support of such assertions. The March 14, 2004 letter is accompanied by a January 1981 letter from Mr. Gonzalez's previous employer stating the reasons for his termination of employment, namely harassment of a co-worker and working under the influence of alcohol.

  Although the additional documentation provided by Ms. Gonzalez is new and not cumulative of the existing record, the information is not material as it does not provide medical evidence of mental impairment and therefore does not create a reasonable possibility that the Commissioner's previous determination of a lack of good cause would be influenced by this information. The additional documents therefore do not warrant a remand

  The ALJ thoroughly considered the evidence submitted on behalf of Mr. Gonzalez. He then informed Mr. Gonzalez and his counsel of the need for documentation of mental illness. The hospital records and other documentation of Mr. Gonzalez's condition and treatments during the requisite period do not reflect any diagnosis of, treatment of, or symptoms consistent with mental illness. The determination of the Commissioner denying an extension of the deadline to appeal the 1985 and 1989 final determinations under SSR 91-5p thus is supported by substantial evidence.

  Accordingly, the Commissioner's motion for judgment on the pleadings is granted, and the decision of the Commissioner is hereby affirmed. Permission to appeal in forma pauperis is denied. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444, 8 L.Ed.2d 21, 82 S.Ct. 917 (1962).*fn4


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