Barahona v. Kijakazi

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JOSE NOEL BARAHONA, Plaintiff, v. KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

Civil Action No. 22 Civ. 4007 (SLC)

United States District Court, S.D. New York

August 31, 2023

OPINION & ORDER

SARAH L. CAVE, United States Magistrate Judge

I. INTRODUCTION

Plaintiff Jose Noel Barahona (“Mr. Barahona”) commenced this action pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g) (the “Act”), seeking review of the denial by the Commissioner (the “Commissioner”) of the Social Security Administration (“SSA”) of his application for Supplemental Security Income (“SSI”). (ECF No. 1 ¶¶ 1, 12-13). The parties consented to Magistrate Judge jurisdiction for all purposes (ECF No. 12), and cross-moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (ECF Nos. 16 (“Mr. Barahona's Motion”); 22 (the “Commissioner's Motion,” together, the “Motions”)). For the reasons set forth below, Mr Barahona's Motion is DENIED and the Commissioner's Motion is GRANTED.

II. BACKGROUND

A. Historical Background

Mr. Barahona was born in 1968 and was 49 years old when he applied for SSI benefits. (Administrative Record (“R.”) 22, 39). He was educated through the eleventh grade in Nicaragua.

(R. 70, 290). He lives alone and has not engaged in any work in over 15 years. (R. 70, 250). His last employment, in 2000, was as an office cleaner, which required him to carry 25 pounds frequently and 50 pounds occasionally. (R. 300). He alleges that he is unable to work due to hearing and back impairments, his HIV-positive status,^[1]anxiety, and vertigo. (R. 41). He underwent unsuccessful surgery on his ear in 1992 and 2013, and now wears hearing aids which enable him to hear. (R. 41-42, 110).

B. Medical Evidence

Mr. Barahona and the Commissioner have each provided largely consistent summaries of the medical evidence in the Record. (See ECF Nos. 17 at 7-9; 23 at 10-11). The Court adopts the parties' summaries as accurate and complete and sets forth below the additional facts relevant to the analysis of the Motions.

Mr. Barahona's treating physician is Jean-Louis Salinas, M.D. (“Dr. Salinas”). (R. 291). For Mr. Barahona's HIV, which he has had since 1992, Dr. Salinas has prescribed Epevir, Viracept, and Viramir. (R. 110, 291, 387-420, 428-503, 511-14, 555-609). As of June 2017, his CD4 count was 732 and a viral load was undetectable.^[2](R. 110, 389, 392). By 2018, his CD4 count was in the 900s and his viral load remained undetectable. (R. 557). For his hearing and, starting in 2020, vertigo, Mr. Barahona has visited the New York Eye and Ear Infirmary. (R. 292, 370-85, 516-53).

A prescription for Meclizine has “improve[d]” his vertigo symptoms. (R. 522). Mr. Barahona has not seen an orthopedist or had x-rays of his back, and, as of December 2020, reported no joint or back pain, swelling, stiffness, or muscle aches. (R. 308, 607). Mr. Barahona previously controlled his anxiety with Klonopin as prescribed by Dr. Salinas, but he “now just tries to relax himself” and is not under the care of a psychiatrist. (R. 308, 512, 589).

C. Administrative Proceedings

On April 25, 2017, Mr. Barahona filed an application for SSI benefits (the “Application”), alleging disability beginning on January 1, 2013, based on his HIV-status, back impairment, hearing impairment, and anxiety. (R. 15, 98-103, 289).

1. The First Administrative Proceeding

On July 26, 2017, the SSA denied his Application and Mr. Barahona requested a hearing before an administrative law judge (“ALJ”). (R. 105-112, 138). On April 26, 2019, ALJ John Allen held a hearing, at which Mr. Barahona appeared pro se and without the assistance of a Spanish interpreter. (R. 61-62 (the “First Hearing”)). After explaining the procedure for the hearing and reviewing the record evidence, ALJ Allen asked Mr. Barahona a series of questions about his background and medical conditions. (R. 63-77). After hearing testimony from a vocational expert, ALJ Allen agreed to keep the record open for updated medical records from Mr. Barahona's treating physician and took the matter under advisement. (R. 81-82). On November 6, 2019, ALJ Allen denied Mr. Barahona's Application (R. 116-23), but the Appeals Council vacated that decision and remanded with instructions to: (i) provide Mr. Barahona or his representative an opportunity to review and comment on the available evidence; (ii) obtain additional evidence concerning his impairments; and (iii) further evaluate his mental impairment in accordance with 20 C.F.R. § 416.920a and provide specific findings and appropriate rationales for each of the functional areas described in 20 C.F.R. § 920a(c). (R. 129-30; see R. 15, 195).

2. The Second Administrative Proceeding

a. The Second Hearing

Following remand, on February 24, 2021, ALJ Lori Romeo held a telephonic hearing. (R. 29-59 (the “Second Hearing”)). Mr. Barahona appeared pro se and used the interpreter supplied by the SSA, although at times he responded in English to the ALJ's questions. (R. 29, 3133, 36). The ALJ assured Mr. Barahona that it was “perfectly okay” for him to participate in the hearing through the interpreter. (R. 39-40). The ALJ explained that although the SSA does not arrange or pay for an attorney, public interest organizations might represent him if he qualified, or he could retain a private attorney. (R. 33). Mr. Barahona stated that he understood he had the right to have an attorney at the hearing, but “want[ed] to do it now.” (R. 34; see R. 35 (“I'd rather do it today.”)). After explaining to Mr. Barahona how the hearing would proceed and reviewing the exhibits and the history of communications with the SSA about his Application, the ALJ asked him a series of questions about his background, education, and symptoms. (R. 36-48).

Mr. Barahona testified that he suffers from impairments to his hearing and his back, anxiety, and vertigo, and is HIV-positive. (R. 41-42). He can sit for three hours, stand for one hour, walk 20 blocks, and lift 20-25 pounds despite his back impairment. (R. 42-44). He testified that, with his HIV medication regimen, he is asymptomatic. (R. 44).

Mr. Barahona testified that he had previously seen a psychiatrist who gave him medication that “ma[de] him feel worse,” but testified that his current medication “does help” him. (R. 45-46). His anxiety causes him to “feel stupid” and “get confused,” and renders him unable to “function well.” (R. 46). Although he felt anxious during the hearing, he maintained that he could “explain [his] case.” (Id.) He testified that, since August 2021, he has experienced dizziness from vertigo three times. (R. 47). On the first occasion, he could not get out of bed and remained seated all day. (Id.) Since beginning medication, however, the dizziness is not “severe[]” and is “milder.” (R. 47-48). Mr. Barahona testified that he was able to take public transportation “sometimes” and do his laundry and shopping. (R. 48). In response to the ALJ's question whether he wanted to state anything else about his medical conditions, Mr. Barahona stated, “I think we spoke about everything.” (Id.)

The ALJ then heard testimony from vocational rehabilitation specialist Dr. Amy Vercillo (the “VE”). (R. 49). The ALJ posed a hypothetical involving a person of Mr. Barahona's age, education, limited ability to read and write in English, history of no past work, and ability to work at all exertional levels, but with the following limitations:

[B]ecause of a hearing impairment and vertigo, he is limited to work environments which have no greater amount of noise than at the moderate level of noise defined by the DOT [Dictionary of Occupational Titles] and the SCO [Selected Characteristics of Occupations]. And should not work on ladders, should not work on scaffolds, should not work near bodies of water, or near dangerous machinery. Because of some nonexertional limitations, the person is limited to work that requires little or no judgment to do simple duties that a person can learn on the job in a short period of time, 30 days or less. Usually an SVP: 1 or 2, as rated in the SCO. A person is further limited to low stress work defined as only occasional decision making, and only occasional changes in work setting, and can have only occasional interaction with coworkers, and should not work with the general public.

(R. 53).^[3]In response to the ALJ, the VE responded that there was work in the national economy that such a hypothetical person could perform, including hand packer, for which there were 400,000 positions in the national economy. (R. 54). When the ALJ added the limitation to light work, the VE responded that such a person could be a small product assembler, of which there were 170,000 positions; office cleaner, of which there were 120,000 positions; and labeler, of which there were 190,000 positions. (R. 54-55). Mr. Barahona elected not to ask any questions of the VE. (R. 57).

The ALJ then provided Mr. Barahona a final opportunity to share any additional information regarding his medical conditions, but he declined to do so and agreed that “he was able to explain everything even though he was nervous and anxious.” (R. 57-58).

b. The ALJ Decision and Appeals Council Review

On March 18, 2021, ALJ Romeo issued a decision denying Mr. Barahona's Application. (R. 15-23 (the “ALJ Decision”)). ALJ Romeo followed the five-step disability determination process. (Id.) At step one, the ALJ found that Mr. Barahona had not engaged in substantial gainful activity since April 25, 2017, the Application date. (R. 17). At step two, the ALJ found that Mr. Barahona had four substantial impairments: bilateral conductive hearing loss, anxiety disorder, HIV, and vertigo. (R. 18).

At step three,...