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
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 ...