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Calvin Oliver Tai-Fatt v. Michael J. Astrue

October 1, 2012


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


Plaintiff Calvin Oliver Tai-Fatt brings this action pursuantto 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for disability insurance benefits. The parties have cross-moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons stated below, Tai-Fatt's motion is denied and the Commissioner's motion is granted.*fn1


A. Tai-Fatt's Claim for Benefits and Procedural History Tai-Fatt filed an application for disability insurance benefits on March 4, 2003. R. 67--69.*fn2 Tai-Fatt claimed that he "became unable to work because of [his] disabling condition on December 1, 1987," and that he is "still disabled." R. 67. On May 5, 2003, the Commissioner denied Tai-Fatt's application, R. 38--41, and Tai-Fatt subsequently requested a hearing before an administrative law judge ("ALJ"), R. 42.

On October 15, 2003, Tai-Fatt appeared pro se at a hearing before an ALJ. R. 18--35. In a decision issued October 29, 2003, the ALJ found that Tai-Fatt was not disabled within the meaning of the Social Security Act during the coverage period at issue, December 1987 through December 1991. R. 12--15. On November 19, 2004, the Commissioner's decision became final when the Appeals Council denied Tai-Fatt's request for review of the ALJ's decision. R. 5--7.

Tai-Fatt filed a civil action on November 23, 2004 challenging the Commissioner's decision. See Complaint, filed Nov. 23, 2004 (Docket # 1 in 04 Civ. 9274). On November 30, 2005, this Court issued an opinion remanding Tai-Fatt's case and directing the Commissioner to consider evidence Tai-Fatt submitted to the Appeals Council that he had not submitted to the ALJ, to make an inquiry into the foundations of certain opinions rendered by Tai-Fatt's treating physicians, and to elicit testimony from Tai-Fatt as to which impairments he regarded as disabling during the coverage period. See Tai-Fatt v. Barnhart, 2005 WL 3206552, at *12--13 (S.D.N.Y. Nov. 30, 2005).

On remand, Tai-Fatt testified pro se at a hearing before the ALJ. See R. 510--46. On April 28, 2006, the ALJ issued a decision denying disability. See R. 497--509. Tai-Fatt appealed the ALJ's ruling, but the Appeals Council declined to accept jurisdiction over the case. R. 466--69. On July 21, 2008, Tai-Fatt initiated an action challenging the Commissioner's decision.

See Complaint, filed July 17, 2008 (Docket # 1 in 08 Civ. 6397). By stipulation of the parties, the District Court remanded the case to the Commissioner on December 18, 2008. R. 483A--B.

Following the remand, an ALJ held an additional hearing on February 3, 2010 at which Tai-Fatt testified. See R. 1191--216. The ALJ issued a decision finding that Tai-Fatt was not disabled at any time prior to December 31, 1991. R. 667--79. The Appeals Council declined jurisdiction of Tai-Fatt's appeal. R. 656--58. Tai-Fatt thereafter brought the instant action challenging the Commissioner's denial of benefits. See Complaint, filed Dec. 21, 2011 (Docket # 1).

On March 15, 2012, Tai-Fatt moved for judgment on the pleadings. See Motion on the Pleading Reversal Secretrary [sic] Decision, filed Mar. 15, 2012 (Docket # 12) ("Tai-Fatt Mem."). On May 3, 2012, the Commissioner cross-moved for judgment on the pleadings.

See Notice of Motion, filed May 3, 2012 (Docket # 20); Defendant's Memorandum of Law in Opposition to Plaintiff's Motion for Judgment on the Pleadings and in Support of Defendant's Motion for Judgment on the Pleadings, filed May 3, 2012 (Docket # 21) ("Comm'r Mem."). Tai-Fatt replied to the Commissioner's Motion. See Affirmation in Opposition, filed June 4, 2012 (Docket # 24) ("Tai-Fatt Reply"). The Commissioner submitted a reply. See Reply Memorandum of Law in Support of the Defendant's Motion for Judgment on the Pleadings, filed June 22, 2012 (Docket # 25) ("Comm'r Reply").

B. Evidence Presented Before the ALJ

Because the only issue in this case is whether Tai-Fatt was disabled between December 1987 and December 1991, we summarize the hearing record only insofar as it may plausibly be viewed as relating to this period.

1. Tai-Fatt's Testimony

The following facts are taken from Tai-Fatt's testimony at the hearings before the ALJ and from other statements made by Tai-Fatt contained in documents in the record.

Tai-Fatt, who is now a United States citizen, was born in Kingston, Jamaica, on October 13, 1945. R. 30. He came to the United States in 1965 and served in the United States military from 1968 to 1969. R. 30--31. After his service in the military, he began seeking treatment due to "pain and disability." R. 25. Tai-Fatt worked as a window display person at trade shows from 1969 to 1985, and again for a period in 1987. R. 25, 90. His job as a display person involved assembling displays and furniture for exhibitors. R. 80--81. Tai-Fatt earned a Bachelor of Arts degree in Humanities in 1999. R. 501.

Tai-Fatt visited multiple doctors after his military service ended, and in 1981 went to the Veterans Administration (now the United States Department of Veterans Affairs) ("VA") for medical treatment. R. 25. He saw several private doctors after 1981, but has no medical records of such treatment and testified that those doctors are all deceased. See R. 26. At a visit to the VA in 1981, he was diagnosed with diabetes, and was told to watch his diet. R. 26--27. He did not follow the doctor's directions to maintain a healthy diet because he did not know much about diabetes. R. 27. In the late 1980s and early 1990s, he would feel "good one moment" and then a moment later he would feel "weakness," almost "[n]o energy whatsoever," "blurry vision," and "dizziness" from the diabetes. R. 27. Tai-Fatt also testified that he has hearing problems related to his job as a demolition sergeant in the military, but did not receive a hearing aid from the VA until 1994 or 1995. R. 28.

In the early 1980s, Tai-Fatt began experiencing depression, and then in 1985, his body "was going bad." R. 25, see R. 29. "[F]amily problems" developed, he divorced from his wife, lost his family, and became homeless in the mid-1980's. R. 24, 32--33, 1210. By 1987, he had completely stopped working and was homeless through the end of 1991. R. 20, 24--25, 32--33, 1208--10, 1214. Eventually, he acquired a residence, as evidenced by the fact that Tai-Fatt testified he has been living with his fourth wife of twelve years, R. 30, 204, 1211--12. He testified that in or around 1987 he owned his own business but ceased working there because he "couldn't keep up with [the] business" because of the "pressure and stress there from [his] ailments." R. 1208--09. Tai-Fatt testified that the combination of the following issues in particular precluded him from working: orthopedic problems with his foot, a hernia, surgery, his hearing, and family problems. R. 1210. As to why he could endure these problems prior to 1987 sufficiently to work, but could not endure them after 1987, Tai-Fatt testified that they "just started to get worse." R. 1210.

Although Tai-Fatt testified that he had experienced depression and disability since the early 1980s, he received no emergency room treatment during the coverage period, and only began receiving treatment for his depression in 2003. R. 29, 1211. Tai-Fatt testified at the February 2010 hearing that he did not seek mental health treatment during the coverage period because he was embarrassed and did not want to be regarded as "crazy" for seeking such treatment. R. 1211. However, he had previously testified at the October 2003 hearing that he had sought treatment for depression from a VA medical center ("VAMC") in 1981 or 1982, but the VAMC from which he sought help turned him away. See R. 29 ("I would say the depression went back as far as 1981, '82 when I tried to get help [at a VAMC] but no one helped me."); id. ("I never even knew I could go to the Veterans Administration . . . . because they -- when I went in '81, they turned me down.").

Tai-Fatt testified that he did not receive medical treatment during the coverage period because he was homeless, had no money, and knew nothing about Social Security disability.

R. 24. The only medical record dated prior to 1991, the last year of the coverage period, that Tai-Fatt submitted to the Commissioner was a benefits determination by the VA in 1981. R. 126; see also R. 22. That document indicates that the VA determined in 1981 that Tai-Fatt was "less than 10 percent disabl[ed]" and that the VA would not pay him any benefits. R. 126. The record indicates that the VA currently lists Tai-Fatt as 90 percent disabled, although it pays him at the 100 percent disability rate. R. 239. His current disability is based on "unemployability" due to medical impairments, including depression and various orthopedic injuries. R. 28--29, 242--44.

2. Records Relating to Tai-Fatt's Medical Condition Beginning in 1994, Tai-Fatt began receiving medical treatment from various VAMCs. R. 82-83. Virtually all of the treatment in the record submitted to the SSA occurred at various VAMCs. Tai-Fatt claims his first visit to a VAMC was in January 1994. R. 82.

a. Orthopedic Conditions

The oldest record of treatment is a November 20, 1994, document referring to a left-foot x-ray at the Manhattan VAMC. R. 131. The x-ray revealed Tai-Fatt's left foot had a healed metatarsal*fn3 fracture and a right knee chondromalacia*fn4 secondary to favoring his right leg. R. 131. He was given strengthening exercises, range of motion exercises, and nonsteroidal anti-inflammatory drugs. R. 131. A follow up examination on June 14, 1995 revealed that Tai-Fatt continued to have left foot pain and right knee pain secondary to favoring his right leg while walking. R. 131. On December 20, 1995, he received a prescription for orthopedic shoes with a metatarsal pad. R. 135.

On May 13, 1996, a magnetic resonance imaging ("MRI") scan of Tai-Fatt's right knee revealed an irregularity in the cartilage and ...

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