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Gonzalez v. Commissioner of Social Security

March 25, 2009


The opinion of the court was delivered by: Charles P. Sifton (electronically signed) United States District Judge


SIFTON, Senior Judge.

The plaintiff, Jose Gonzalez, deceased ("plaintiff"), by Irene Guzman, Administratrix ("Ms. Guzman"), brought this action against the Commissioner of Social Security ("defendant") seeking review of defendant's decision denying his claim for Social Security disability benefits. Now before the Court is defendant's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure and 42 U.S.C. § 405(g). For the reasons stated below, defendant's motion is granted.


Plaintiff's case has been heard by two Administrative Law Judges on five separate occasions. Plaintiff has appealed these Judges' findings on three occasions, and twice this Court has remanded the case for further findings by the Commissioner. Plaintiff's claims of disability are based on three classes of ailments (asthma, back and joint pain, and depression), and there are four time periods at issue. Given the complexity of the record, the procedural history of this case is discussed prior to the facts, in order to render a clearer picture of the sequence of filings, decisions, and medical findings.

Procedural History

Plaintiff applied for disability insurance benefits on December 6, 1994, claiming that he had been unable to work since November 1, 1991 due to asthma. Transcript of the Record at 29-31 ("Tr."). The claim was denied at the initial and reconsideration levels, and plaintiff filed a request for a hearing before an administrative law judge ("ALJ"). Id. at 45. Plaintiff did not attend the hearing because he was incarcerated, and the ALJ dismissed the hearing request on September 24, 1996. Id. at 140-141. On October 21, 1998, plaintiff filed a request for review of the ALJ's dismissal of the hearing request. Id. at 142. The Appeals Council denied that request on January 28, 2000. Id. at 149-150. On July 20, 2000, this Court remanded the action for further administrative proceedings pursuant to 42 U.S.C. § 405(g). Id. at 5.

On September 18, 2000, the Appeals Council vacated the ALJ dismissal order. Id. at 153. A new hearing was held before ALJ O'Leary on May 17, 2001. ALJ O'Leary issued a decision finding that plaintiff was not disabled prior to March 31, 1996, the date he last met the insured status requirements of the Act.

Declaration of Patrick Herbst, Ex. 1 at p. 5 ("Herbst Decl."). Plaintiff requested review by the Appeals Council, which apparently took no action. On November 5, 2002, this Court remanded the case to the Commissioner for further proceedings pursuant to 42 U.S.C. § 405(g). On April 22, 2003, the Appeals Council ruled that the record did not contain substantial evidence to support ALJ O'Leary's finding that plaintiff performed substantial gainful activity through 1995, and directed the ALJ to make additional findings. Tr. at 343. In a decision dated May 19, 2004, ALJ O'Leary found that plaintiff was not disabled because his drug trafficking constituted substantial gainful activity and there was no evidence of severe impairment prior to November 11, 1994. Id. at 422. In a decision dated November 5, 2005, the Appeals Council affirmed the findings that there was no severe impairment prior to November 11, 1994 and that plaintiff performed substantial gainful activity during the period prior to April 1995. Id. at 435. The Appeals Council remanded the case for further proceedings concerning the period of April 1995 through March 31, 1996, during which plaintiff was incarcerated. Id.

In a decision dated August 21, 2006, ALJ Faulkner found that plaintiff's ailments, while severe, did not meet the requirements for disability benefits, and that plaintiff was capable of sedentary activity while incarcerated. Id. at 273. On January 19, 2008, the Appeals Council declined to assume jurisdiction. On February 29, 2008, the Appeals Council sent plaintiff and plaintiff's counsel a superceding notice concerning its action. Herbst Decl. ¶ 4(b), Ex. 2. Plaintiff thereafter filed a complaint in Federal Court.

On September 5, 2008, defendant made a motion to dismiss, claiming that plaintiff had failed to timely file his complaint. Plaintiff's counsel disputed this claim, stating that he had filed the complaint in a timely fashion, although he had not paid the filing fee at the time of filing, thereby delaying the Clerk's entry of filing on the docket. On October 21, 2008, I instructed the parties to brief the question of whether the failure to pay the fee rendered the filing of the complaint untimely. On December 12, 2008, defendant made a motion for judgment on the pleadings, and both parties briefed the merits of the case.*fn1

Non-Medical Evidence

Plaintiff was born in 1957, and worked as a "cutter," cutting bindings for garments, from 1978 to 1991. Id. at 29, 59. This job entailed standing or walking and frequently lifting over fifty pounds. Id. at 60. After 1991, plaintiff had no reported earnings. Id. at 58. In his 1994 application for disability benefits, plaintiff identified as his treating source the Western Queens Community Hospital in Astoria, New York, where he was seen in November, 1994 for asthma. Id. at 57, 58. Plaintiff reported that a friend did most of the household chores, and that his recreational activities included fishing and watching television. Id. at 58. Plaintiff further stated in his application that he was able to take the train and bus without difficulty. Id. Plaintiff met the insured status requirements of the Social Security Act through March 31, 1996.

On March 23, 1995, plaintiff was arrested and charged with money laundering.*fn2 Plaintiff pled guilty in 1995, and was sentenced to 37 months of incarceration. See Def. Memo. Appx. A.

Plaintiff again applied for disability benefits in 1998.*fn3 In conjunction with the 1998 application, he completed a questionnaire. Id. at 180-83. Plaintiff reported that he had lower back and leg pain since 1986, and that he stopped working in 1991, because pain prevented him from lifting or standing. Id. at 181. Plaintiff stated that he had severe asthma attacks and three admissions to the hospital. Id. He claimed that he had "curtailed his activities to none" and had to stay home and take oxygen. Id. at 183.

Ms. Guzman was plaintiff's daughter. Id. at 17. At a hearing held regarding plaintiffs' case on May 17, 2001, Ms. Guzman testified that her father had suffered from chronic asthma since 1983, and that he had been hospitalized for it three or four times. Id. at 18. Ms. Guzman further testified that plaintiff had a herniated disk in his back from an accident in 1993 for which he needed surgery, and that he suffered from severe depression, for which he took medication. Id. at 21.

At a hearing held on January 30, 2004, plaintiff's son testified that during the period 1994-1996, plaintiff could not walk long distances, and required help to perform daily activities such as shopping, cooking, and cleaning. Id. at 291. Plaintiff's former girlfriend and mother of his children testified that plaintiff last worked in 1991 or 1992, that plaintiff's asthma was "bad" at that time, and that plaintiff suffered from depression as a result of the asthma, a car accident, several eye surgeries,*fn4 and the fact that he could not get a job. Id. at 296. Ms. Guzman testified that plaintiff was "really sick" during the period from 1994-1996, that he relied on oxygen tanks when he went out, that he visited the hospital once or twice a month for a year, that plaintiff used a cane after suffering a slipped disk in the car accident, and that plaintiff was depressed and could not sleep. Id. at 300-01.

Medical History before March 31, 1996

In his 1994 disability benefits application, plaintiff did not identify any treating sources for the period prior to November 1994. See Tr. at 57-58.

The first record of medical treatment in the record is plaintiff's hospitalization for acute respiratory distress and asthma from November 11-14, 1994. Id. at 72, 73, 87, 179. At that time, plaintiff was intubated and treated with an inhaler and steroids. Id. 72, 74, 77. The medical summary produced by the hospital states that plaintiff had taken cocaine prior to his attack. Id. at 72. Plaintiff left the hospital against medical advice. Id. at 72, 73.

On January 31, 1995, plaintiff was examined by Dr. Edmund Balinberg, an internist Id. at 113-15. At that time, plaintiff stated that he stopped working three years previously because of difficulty breathing. Id. at 113. Plaintiff stated that he could not sleep at night due to shortness of breath, that he could not walk more than a block without needing to rest, and that a friend helped him with shopping and chores. Id. Dr. Balinberg observed that plaintiff's respiration rate increased with simple activities such as dressing, undressing, and walking a few steps into the room. Id. Dr. Balinberg also noted wheezing on ausculation, which he believed might be chronic based on plaintiff's case history. Id. at 114. A chest x-ray was negative. Id. at 119. Pulmonary function testing showed that plaintiff's breathing improved after bronchodilators.*fn5 The diagnosis was bronchial asthma. Id. Dr. Balinberg further noted that plaintiff had no history of psychiatric hospitalization or treatment, and that he had a normal gait, normal ranges of motion in his cervical and lumbar spines, and straight leg raising of 90 degrees bilaterally.*fn6 Id. at 113-114. Dr. Balinberg concluded that plaintiff had limited ability to walk quickly, to walk long distances, to climb stairs, and that he had restricted capacity for lifting, carrying, pushing, or pulling heavy loads. Id. at 115.

On February 14, 1995, Dr. Anthony Buonocore, a state agency physician, examined plaintiff and concluded that plaintiff had bronchial asthma but that he could lift and carry ten pounds frequently and twenty pounds occasionally, stand, walk and sit for six hours each in an eight-hour day and do unlimited pushing and pulling. Id. at 34-41.

On February 21, 1995, plaintiff was again hospitalized. Id. at 96. The emergency room examining physician observed regular, spontaneous breathing. Id. at 121. Chest X-rays revealed no acute lung pathology and mild enlargement of the heart. Id. at 125. The diagnosis was heroin overdose. Id. at 96. Plaintiff was discharged and instructed to follow up with the Primary Care Center. Id. at 97.

On March 23, 1995, plaintiff was given a medical examination by the Metropolitan Correctional Center New York ("MCC") Health Services Unit in connection with his arrest. Id. at 396-97. Plaintiff reported a history of asthma since childhood. Id. at 397. The physician assistant heard wheezing and recommended referral to a physician; the diagnosis was a history of asthma. Id. at 396, 397. On March 25, 1995, plaintiff had an asthma attack because he had not yet received his asthma pump and pills ...

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