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Ivan Colon v. Michael J. Astrue

March 7, 2011


The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge:

Pro Se,



Plaintiff Ivan Colon brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) of the Social Security Act seeking review of the Commissioner of Social Security's decision to deny his application for supplemental security income ("SSI"). On April 26, 2004, plaintiff*fn1 filed an application for SSI benefits alleging disability beginning November 1, 2003. Plaintiff alleged inability to work due to human immunodeficiency virus ("HIV"), hepatitis B, and hepatitis C. Plaintiff's application was denied on July 30, 2004. Plaintiff requested, and on May 31, 2007, received, a hearing before an administrative law judge ("ALJ"). Plaintiff, who was incarcerated at Greene Correctional Facility in Coxsackie, New York, appeared by video for the hearing. ALJ Paul A. Heyman informed plaintiff of his right to representation but plaintiff elected to proceed with the hearing pro se. On August 15, 2007, the ALJ issued a decision finding that plaintiff was not disabled and denied his application for SSI benefits. On November 29, 2007, the Appeals Council denied plaintiff's request for review making the ALJ's decision the final decision of the Commissioner. On January 22, 2008, plaintiff filed this action.


A. Documents

The Administrative Transcript contains a "Disability Report" dated December 1, 2005, in which plaintiff indicated that he underwent medical treatment at the Spellman Center and Fulton Correctional Facility. In a letter to plaintiff dated December 2, 2005, ALJ Louis Zamora requested plaintiff's assistance in obtaining "additional evidence to complete the record". Several forms were enclosed with the letter, and plaintiff was directed to have the forms completed by his current treating physician. Additionally, ALJ Zamora asked plaintiff to send "copies of your treatment records" as well as "any other reports or records from your doctor(s)." The forms in the Administrative Transcript are blank and handwritten across the top is "Ivan Colon is in jail" in Westchester, New York.

Although there are no medical records in the Administrative Transcript, there is a "Medical Source Statement of Ability to do Work-Related Activities (Physical) by "D. Smith, M.D." dated July 10, 2007. This statement appears to have been submitted in response to a subpoena by the ALJ to Greene Correctional Facility requesting "all medical records" and the completion of "the attached Medical Assessment Form". Dr. Smith notes that this form is based on "assessment of institutional medical record and from interpretation of [illegible] current and previous program within institution". According to the assessment, plaintiff can lift and carry up to twenty pounds continuously and up to one hundred pounds frequently. Dr. Smith stated that plaintiff can sit for eight hours and stand and walk for six hours in an eight hour work day. Dr. Smith indicated that plaintiff can climb stairs and ladders, balance, stoop, kneel, crouch, and crawl frequently. Dr. Smith stated that plaintiff could frequently endure environmental limitations including heights, humidity, cold, and heat.

Dr. Smith's medical assessment was proffered to plaintiff together with a letter from the ALJ asking whether there was any reason not to include the document in evidence: "I only have one additional document that I received from Green[e]: A Medical Source Statement dated 7/10/07 from D. Smith, MD (copy enclosed). Unless you provide me with reason not to do so, the document will be marked in evidence and I will weigh it in my evaluation of your case." In his facsimile response dated August 8, 2007, plaintiff states: "I, Mr. Ivan Colon, agree with all information that I reviewed of medical papers".

B. Hearing

At the hearing, plaintiff testified that he had been at Greene Correctional Facility since June 30, 2006. Plaintiff testified that he could read and write, attended school until eleventh grade, and that he was in the process of trying to obtain a GED. Plaintiff stated that he previously worked as an electrician's helper.

Plaintiff testified that he was diagnosed with HIV in 1995, and that he has had thrush and shingles in the past few years. Plaintiff stated he had also been diagnosed with hepatitis B and C. Plaintiff testified that he has had night sweats and fevers and that the night sweats "go[] on and off". Plaintiff stated that he was receiving medication, including Combivir and Sustiva, and medical treatment at Greene Correctional Facility. Plaintiff testified that he suffers dizziness as a side effect from the medication. Regarding his "T cell count", plaintiff stated that in 1995 it was 10 and at the time of the hearing it was "860-something" and that the virus was "undetectable." Plaintiff testified that he suffers from diarrhea periodically, but has not had a problem with his appetite. Plaintiff stated that in the last year he had not had significant weight gain or loss.

Plaintiff testified that his right side was "a little swollen" as a result of hepatitis C, and that a recent biopsy at Albany Medical Care had revealed "some damage on [his] liver" and that he had been told that he was going to begin receiving treatment for his liver. Plaintiff testified that his regular treating physician at Albany Medical Care was "Rosenfield".

Plaintiff testified that at the correctional facility, he works cleaning the recreational quarter from 8:00 a.m. to 10:30 a.m. five days a week and that he goes to school for his GED in the evening. Plaintiff stated that he sometimes begins to feel ...

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