United States District Court, S.D. New York
June 25, 2004.
ISABEL GONZALEZ o/b/o FAUSTINO GONZALEZ, Plaintiff,
JO ANNE BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge
MEMORANDUM OPINION AND ORDER
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
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
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
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
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