The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge.
REPORT AND RECOMMENDATION TO THE HONORABLE RICHARD J. HOLWELL
In this pro se action, plaintiff Russell Rivera ("Rivera") seeks judicial review of a decision of the Commissioner of Social Security ("Commissioner") finding that he is not disabled. The case is before this Court on the Commissioner's unopposed motion to have the case remanded for further proceedings, pursuant to the fourth sentence of 42 U.S.C. § 405(g). For the reasons set forth below, that motion should be granted.
On January 24, 2002, Rivera filed an application for Supplemental Security Income benefits ("SSI") in which he alleged that he became disabled on April 1, 2001.
(R. 48-50; Comp. at 1).*fn1 That application was denied on April 15, 2002. (R 35-38). On May 24, 2002, Rivera requested a de novo hearing before an administrative law judge ("ALJ"), which was held on May 28, 2003. (Id. at 19-33, 39). Following that hearing, ALJ John M. Farley found Rivera ineligible for benefits on July 23, 2003. (Id. at 10-18). The ALJ's decision became final on August 28, 2003, when the Appeals Council denied further review. (Id. at 6-9).
Rivera commenced the present action by submitting his complaint to the Pro Se Office of this Court on October 28, 2003. (See Docket No. 2 at 1). On February 25, 2005, the case was referred to me to report and recommend. (Docket No. 4). On May 11, 2004, the Commissioner answered the complaint, and, on October 14, 2004, she filed the present motion to remand the action for further administrative proceedings. (Docket Nos. 6, 11-12). Rivera has not submitted any opposition papers despite having been served more than one year ago.
Rivera was born in 1980. (R. 25). At the time of the hearing in 2003, Rivera was married and had a four-year-old stepdaughter. (Id. at 25, 32). Although he could not remember the dates, Rivera testified that his last employment was with an ambulance service, helping the driver escort patients in wheelchairs. (Id. at 25-26). He did not receive any training for the work, which involved lifting and carrying disabled people in wheelchairs up and down flights of steps. (Id. at 26, 64). By the time of the hearing, however, Rivera was no longer employed. (Id.).
Rivera testified that he was diagnosed with HIV and Hepatitis C in April 2001, and with AIDS six months later. (Id. at 26-27). He did not receive any treatment for the HIV until around September of 2001. (Id. at 27). When he was diagnosed with AIDS, Rivera was suffering from weight loss, loss of appetite, weakness, and he generally was "sick a lot." (Id.). By the time of the hearing, Rivera's weight was approximately 155 to 160 pounds, up from a low of about 130 pounds. (Id. at 28). Rivera testified that he could walk or stand for about one hour before having to rest, and that he always felt "weak, really tired and fatigued." (Id. at 28). Rivera testified further that the medications he was taking to improve his condition had many side effects, including nausea, diarrhea, fatigue, loss of appetite, dehydration, and, finally, kidney stones, for which hospitalization had been required. (Id. at 29). He also testified that he was losing his teeth and that his vision was deteriorating, preventing him from being able to perform office work. (Id. at 28-29).
Rivera's case manager from Argus Community Care, Equity and Support Services, Reynaldo Rodriguez ("Rodriguez") also testified at the hearing. (Id. at 21). Rodriguez explained Rivera's dire financial situation. (Id. at 30-32). He also stated that Rivera had not been evaluated by a psychologist because of a ...