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Bula v. Commissioner of Social Security

February 23, 2009

CARMEN BULA, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gustave J. DI Bianco, Magistrate Judge

REPORT-RECOMMENDATION

This matter was referred to me for report and recommendation by the Honorable Gary L. Sharpe, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d). This case has proceeded in accordance with General Order 18.

PROCEDURAL HISTORY

Plaintiff filed an application for disability insurance benefits on May 4, 2004, alleging disability beginning March 30, 2001. (Administrative Transcript ("T."), 117-24). The application was denied initially on December 6, 2004, (T. 52-66), and on reconsideration on February 22, 2005, (T. 68-78). Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). When plaintiff filed her application for benefits during 2004, she lived in Puerto Rico and was represented by a private attorney. (T. 67, 79). When plaintiff's case was scheduled for a hearing in late 2005, she had moved to Utica, New York, and her prior counsel in Puerto Rico had withdrawn his appearance. (T. 80, 97, 101). The hearing was rescheduled and ultimately held on March 22, 2006 in Utica, New York. (T. 35-49). At the hearing, plaintiff appeared without counsel, and notwithstanding advice from the ALJ about plaintiff's right to have counsel present, plaintiff elected to go forward with the hearing pro se. (T. 37).

On November 29, 2005, while plaintiff's disability insurance application was pending, she filed an application for Supplemental Security Income ("SSI") benefits (T. 469-72). At plaintiff's March 22, 2006 hearing, the ALJ stated that she was going to consider both applications. (T. 37). In a decision dated June 23, 2006, the ALJ found that plaintiff was not disabled. (T. 26-32). The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on September 1, 2006. (T. 5-7).

According to plaintiff's present counsel, plaintiff's request for SSI benefits was granted during March 2007, and plaintiff is presently receiving SSI benefits. (Dkt. No. 14, 3). Her attorney states that the claim before this court is for "a closed period on the SSI claim from November 2005 to September 2006." (Dkt. No. 14, 3). Plaintiff is still pursuing her denial of Title II disability benefits, and since her last insured date is March 31, 2006, her attorneys concede that plaintiff must show a disability onset before March 31, 2006 to be successful on her Title II application.

CONTENTIONS

Plaintiff makes the following claims in support of her position:

(1) The ALJ failed to provide a full and fair hearing.

(a) The waiver of plaintiff's right to counsel was insufficient. (Dkt. No. 14 at 19).

(b) The ALJ failed to fully develop the record. (Dkt. No. 14 at 20).

(c) The ALJ's credibility determination is erroneous. (Dkt. No. 14 at 22).

(d) The hearing transcript is incomplete. (Dkt. No. 14 at 23)

(2) The ALJ's residual functional capacity assessment is erroneous. (Dkt. No. 14 at 24).

The defendant argues that the Commissioner's determination is supported by substantial evidence in the record and must be affirmed.

FACTS

1. Non-Medical Evidence

At the time of the ALJ hearing in 2006, plaintiff was 55 years old. (T. 39). Although plaintiff's work record is not totally clear because of the poor quality of the tape recording and transcript, plaintiff apparently worked in construction and other jobs during her work career. (T. 42-43). Plaintiff's most recent work, however, was preparing food and doing kitchen work for a Head Start program in Puerto Rico. (T. 42-43). Plaintiff claims that she has difficulties with her hands, arm and her "nerves."

(T. 43). During her testimony, she stated that she was unable to lift, and had difficulty sitting and standing, therefore, she is no longer able to work. (T. 43-44).

2. Medical Evidence

The record in this case contains extensive medical evidence. Unfortunately, the evidence is somewhat confusing because many of plaintiff's medical records are in Spanish and had to be translated. Thus, the administrative transcript in this case contains both the Spanish version of the medical reports and the English translation.*fn1

Between 1999 and 2004, plaintiff was treated in Puerto Rico for costochondritis and hypothyroidism by Dr. Rafael Vasquez Perez. Plaintiff visited Dr. Perez many times, and her treatment consisted of pain medication and thyroid supplements. (T. 309-41).

A. 2001

In addition to visits to Dr. Perez during June 2001, an Evoked Potential Study of plaintiff's tibial nerves was performed. (T. 400-401). The report showed abnormal findings, and it was suggested that plaintiff may have had a tibial nerve peripheral neuropathy. (T. 400-01).

B. 2002 and 2003

During March and December 2002, plaintiff was examined for workers' compensation, apparently based on plaintiff's complaints that her medical problems, including diabetes, hypothyroidism, sprains of her feet, and back pain, were related to her work. (T. 374-81). Examining physicians found that her leg pain was not related to any work events or conditions, but might be related to plaintiff's diabetes and hypothyroidism. (T. 377-81). A March 8, 2002 medical report stated that plaintiff's diabetes "explains the existence of the peripheral neuropathy." (T. 377).

On December 12, 2002, Dr. Frank Benitez Rivera conducted a psychiatric examination of plaintiff to determine whether plaintiff's "emotional condition" was related to her work.*fn2 (T. 367-72). Dr. Rivera states that a report by plaintiff's employer, dated September 12, 2000 stated that plaintiff had "problems with the Warehouse Supervisor." (T. 368). Dr. Rivera also referred to two previous psychological evaluations, one by Dr. Félix Alamo, dated September 29, 2000, in which Dr. Alamo diagnosed "mixed adjustment disorder." (T. 368). Dr. Rivera also referred to a January 29, 2001 report by Dr. Miguez, who also diagnosed mixed adjustment disorder, "not related." (T. 368).

In his December 12, 2002 report, Dr. Rivera found that plaintiff was alert and well oriented, with memory adequate in three spheres. (T. 371). He also found that her affect was "in consonance with her depressed demeanor; she had poor attention; and poor ability to abstract. (T. 371). She had poor judgment; poor ability to respond to common daily life situations; and poor ability to anticipate the consequences of her actions. (T. 372). Dr. Rivera also found that she ...


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