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Molina v. Colvin

United States District Court, W.D. New York

October 2, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

Catherine M. Callery, Esq., Empire Justice Center, Rochester, New York, For the Plaintiff.

Joanne Jackson, Esq., Social Security Administration Office of General Counsel, New York, New York, Michael S. Cerrone, Esq., Assistant United States Attorney, Buffalo, New York, For the Defendant.


CHARLES J. SIRAGUSA, District Judge.


This is an action brought pursuant to 42 U.S.C. ยง 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner" or "Defendant"), which denied the application of Erasmo Molina ("Plaintiff") for Social Security Supplemental Security Income ("SSI") disability benefits. Now before the Court is Plaintiff's motion (Docket No. [#9]) for judgment on the pleadings, seeking a remand to the Commissioner, and Defendant's cross-motion [#13] for judgment on the pleadings. Plaintiff's application is granted and Defendant's cross-motion is denied.


The Commissioner's records indicate that Plaintiff was previously granted disability benefits, that were terminated when he became incarcerated. (162). Plaintiff reportedly was found to be disabled due to "mental retardation." Id. According to Plaintiff's representative, he "was previously on SSI benefits from 1999 through 2007 but was discontinued after he was sent to prison." (225) On July 26, 2010, Plaintiff reapplied for benefits while he was still incarcerated. (161). Apparently, when Plaintiff reapplied, the persons evaluating his application did not request his prior claim folder. Id. Consequently, the case file concerning Plaintiff's prior claim is not part of the record before this Court. Defendant maintains that the prior claim file was destroyed, pursuant to a document retention policy that required files to be kept for only seven years after the application was filed. However, Plaintiff maintains that the Commissioner's actual retention policy is to keep the files for ten years after the last payment on the file was made.

As previously mentioned, on July 26, 2010, Plaintiff re-applied for SSI disability benefits, claiming to be disabled due to the following conditions: "Blind in right eye, Diabetes, drug & alcohol abuse" and "headaches." (166; see also, 130-131). Plaintiff later expanded his claim to include "an intellectual disability, diabetes, blindness in one eye, chronic back and knee pain, and a psychotic disorder, which in combination interfere significantly with his ability to function."[1] The Commissioner denied the application.

On February 7, 2012, Administrative Law Judge John P. Costello ("the ALJ") conducted a hearing, at which Plaintiff appeared and testified, accompanied by his nonattorney representative, Doris Cortez ("Cortez"). Cortez maintained that Plaintiff was disabled because he met the requirements of Listing 12.05(C). (37).[2] Plaintiff testified with the assistance of an interpreter, although he indicated that he understood English "a little bit, " (35), and one treating doctor described him as being fluent in English.[3] On February 23, 2012, the ALJ issued a Decision (18-29), finding that Plaintiff was not disabled at any time between the date he filed for benefits and the date of the hearing.

On April 23, 2012, Plaintiff, through his representative, appealed to the Appeals Council. At that time, Plaintiff argued that he met either listing 12.05B or 12.05C. (225-226). Plaintiff claimed that he had previously been awarded benefits based on mental retardation and that his condition had not changed, which meant that he was still disabled. (225). Plaintiff admitted that he had failed to attend multiple appointments for consultative examinations to determine his IQ, but claimed that was due to the fact that the notices for such examinations were not sent to his representative. (225) Plaintiff further maintained that the ALJ misinterpreted certain information, erroneously evaluated his credibility and failed to develop the record. (225-226). The Appeals Council declined to review the ALJ's determination. (1-4).

On September 26, 2013, Plaintiff commenced this action. As will be discussed further below, Plaintiff maintains that the ALJ's decision was erroneous in several respects. First, Plaintiff maintains that the ALJ erred at step three of the sequential analysis, by finding that Plaintiff's intellectual disability does not meet the requirements for a listed impairment, and specifically, Listings 12.05(B) & (C). In that regard, Plaintiff contends that the ALJ committed the following errors: 1) he failed to develop the record by obtaining Plaintiff's prior disability file; 2) he failed to obtain IQ testing; and 3) he failed to consider that in addition to having a low IQ, Plaintiff also has deficits in adaptive functioning.

Additionally, Plaintiff contends that the ALJ erred at the fifth step of the sequential analysis, by failing to include all of his mental limitations in a hypothetical question to the vocational expert ("VE") who testified at the hearing. Specifically, Plaintiff maintains that the ALJ's hypothetical questions to the VE failed to include limitations for his illiteracy and his purported inability to work with machinery. Additionally, Plaintiff maintains that the ALJ erred by failing to insure that the VE's testimony, concerning the jobs that she said he could perform, was consistent with the requirements for those jobs as set forth in the Dictionary of Occupational Titles ("DOT").


The record contains conflicting evidence concerning Plaintiff's age. Plaintiff indicated on papers that he submitted to the Commissioner that his birthdate is December 29, 1964. However, the school records which Plaintiff submitted to the Commissioner indicate a birth date of February 12, 1965 (189-190), which perhaps raises an issue as to whether they actually pertain to this claimant. Moreover, at the hearing Plaintiff testified that he was 48, but he was actually only 47, assuming arguendo that the purported birth date of December 29, 1964 is correct. (39).

Plaintiff moved from Puerto Rico to Rochester when he was "around 14 years old." (39) Plaintiff did not complete high school, and school records indicate that he was truant most of the time. (190-191). A Rochester City School District progress report summary covering the years 1978 through 1981 indicates that Plaintiff was administered the Spanish WISC-R intelligence exam, although the score is unclear, since it was recorded as "57?". (190) At the hearing Plaintiff testified that he was "in some type of special program in school." (40)

Plaintiff apparently has never held a job.


The record provides little insight into Plaintiff's daily activities during the decades after he dropped out of school, except that he apparently abused drugs and alcohol consistently during most of that time. In that regard, Plaintiff indicates that he used alcohol, cocaine and marijuana for approximately thirty years, but began substance abuse treatment in 2005. (Docket No. [#9-2] at p. 2). Upon release from Prison Plaintiff began to use alcohol and drugs again, and he admits that his longest period of sobriety was while he was incarcerated. (54)

Plaintiff has suffered a number of injuries while under the influence of alcohol and/or drugs.[4] For example, Plaintiff maintains that in 1990, he was beaten and robbed while under the influence of alcohol. (Docket No. [#9-2] at p. 1) During that incident, Plaintiff sustained facial fractures and injuries to his right eye that resulted in the eye being surgically removed. Some time later, during the "late 90s or early 00s, " Plaintiff was intoxicated and riding a bicycle when he was struck by a car. It is unclear whether Plaintiff suffered any injuries during that incident because he refused medical treatment. Id. On May 12, 2002, Plaintiff was treated and released at the hospital after he was assaulted while intoxicated. Id. at p. 2. During that incident Plaintiff sustained facial lacerations. Id. Finally, on June 9, 2005, Plaintiff was again struck by a car, apparently while intoxicated. Id.

It appears that in 1990 and 1992 Plaintiff applied for SSI Disability benefits and was denied. (144). Plaintiff contends that subsequently, in or about 1999, he was found disabled and awarded SSI benefits on the basis of mental retardation. However, the record is far from clear on that point. See, Pl. Memo of Law [#9-1] at p. 3 ("SSA printouts indicate that he may have been awarded benefits following an ALJ hearing in 1992. Records also indicate that his benefits were continued after a Continuing Disability Review in 1999.") (emphasis added, citations omitted). For purposes of the instant action, though, Defendant does not dispute that Plaintiff was previously awarded SSI benefits based on mental retardation.

Plaintiff indicates that in or about 2009, he was convicted of a felony after he robbed someone of a bicycle.[5] Plaintiff served several years in prison, during which, he maintains, his SSI benefits were discontinued due to the fact that he was incarcerated.

After being released from prison Plaintiff began living in a type of halfway-house or group home for persons with substance abuse problems as a condition of his parole. (39, 42) That facility provides Plaintiff with transportation and meals. (41)[6] However, Plaintiff is responsible for performing chores around the house, such as "light cleaning" including mopping and washing dishes, and doing his own laundry. (42-43) Plaintiff indicated, though, that he sometimes gets "chastised" because he doesn't perform his chores. (42) Plaintiff prepares his own meals three times per day, because he is diabetic. (194) Plaintiff also attends ...

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