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Rosa v. Astrue

March 23, 2009

LUDINA ROSA, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge

OPINION AND ORDER

Ludina Rosa, proceeding pro se, brings this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security denying her claim for Supplemental Security Income ("SSI") benefits. The parties have consented to this matter being determined by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The Commissioner has moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(c). For the reasons stated below, the Commissioner's motion is granted.

I. BACKGROUND

A. Administrative History

1. SSI Applications From 1981-1990

Rosa applied for SSI benefits on July 29, 1981, alleging she was disabled due to heart disease. See Administrative Record (annexed to Answer, filed Sept. 22, 2008 (Docket # 11)) ("R."), at 23. On September 17, 1981, her application was denied because the Social Security Administration ("SSA") found Rosa was not restricted in her work activities. Id. at 33-35. On October 2, 1981, she made a request for reconsideration, which was denied. Id. at 37-38. She made subsequent applications for benefits in April 1986, id. at 77-86, December 1986, id. at 130- 33, 152-57, and April 1989, id. at 183-86. All these claims were denied, id. at 87-89, 134-36, 205-07, 210, 227-29.

An additional claim, made on June 1, 1990, was granted, although the benefits were not retroactive. Id. at 14.

2. 1999 SSI Application

On June 7, 1995, Rosa was notified that she might be able to re-open her old claims as a result of the Second Circuit's decisions in State of New York v. Sullivan, 906 F.2d 910 (2d Cir. 1990) and Dixon v. Shalala, 54 F.3d 1019 (2d Cir. 1995). R. 283, 297-99.*fn1 She filed an additional application on October 19, 1999. R. 297, 326-35. Following re-opening, the claim was denied again. Id. at 309-10, 313. Rosa requested a hearing before an Administrative Law Judge ("ALJ"), which was held on March 1, 2002. Id. at 493-509.

On May 21, 2002, the ALJ issued a decision in which he found that, prior to October 1, 1986, Rosa retained residual functional capacity to perform light work, including the ability to lift and carry up to ten pounds frequently and twenty pounds occasionally. Id. at 15. Additionally, the ALJ found that, during that period, Rosa could sit, stand, and walk for 6 hours in an 8-hour workday. Id. at 15. He noted that she had no past relevant work experience and that she spoke no English. Id. at 17. However, because Rosa had the residual functional capacity to perform nearly all of the seven primary strength demands required by work, the ALJ concluded that she was not disabled prior to October 1, 1986. See id. at 17-18 (citing S.S.R. 83-10, 1983 WL 31251 (S.S.A. Nov. 30, 1982)). Thus, the ALJ found that Rosa was not disabled from July 29, 1981 through September 30, 1986. Id. at 15, 18, 21.

By contrast, the ALJ found that Rosa was eligible for SSI benefits from October 1, 1986 through May 31, 1990. The ALJ found that Rosa's additional limitations occurring after October 1, 1986, including her mental health problems, were disabling and rendered her unable to work. Id. at 20, 22.

Rosa sought review of this decision and the Appeals Council denied her request for review on May 2, 2007. Id. at 6A.

B. The Instant Lawsuit

On October 24, 2007, Rosa filed a complaint with this Court. See Complaint, filed Oct. 24, 2007 (Docket # 2) ("Compl."). The Commissioner moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(c) on September 24, 2008. See Notice of Motion, filed Sept. 24, 2008 (Docket # 13); Memorandum of Law in Support of Defendant's Motion for Judgment on the Pleadings, filed Sept. 24, 2008 (Docket # 14). Rosa filed no papers in opposition to the motion.*fn2

C. Rosa's Testimony

At the hearing in March 2002, Rosa testified through an interpreter that she was born in 1936, though she had previously believed that she was born in April 1937. R. 497. She came to New York from Puerto Rico when she was 14. Id. at 503. She worked when she first arrived in New York, but had not worked since she married in 1954. Id. at 504. She had 9 children and 12 grandchildren. Id. at 506-07.

Rosa was receiving SSI benefits as of June 19, 1990. Id. at 498. Between 1978 and 1990, she had been seen at Lincoln Hospital and Courtlandt Medical Group. Id. at 504. During that period she suffered from problems with her right shoulder, high blood pressure, angina, and sinusitis. Id. at 505. She was taking medications in 1980. Id.

She was once treated by Dr. Herbert Rabener in Elmhurst, New York, but could not recall seeing him in the ten years prior to the hearing. Id. at 505-06. In 1978, she had seen a ...


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