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TORRES v. CHATER

August 5, 1996

EDWIN R. CORDOVA TORRES
v.
SHIRLEY S. CHATER, Commissioner, Social Security Administration



The opinion of the court was delivered by: PADOVA

 Padova, J.

 August 5, 1996

 Plaintiff, Edwin R. Cordova Torres, and Defendant, Shirley S. Chater, the Commissioner of the Social Security Administration ("Commissioner" or "Secretary") *fn1" submit cross motions pursuant to Fed. R. Civ. P. 60(b)(6) for the Court's consideration. Both parties seek to vacate this Court's Order adopting a Report and Recommendation from Magistrate Judge Arnold C. Rappaport denying cross motions for summary judgment and recommending that Torres' case be remanded to the Administrative Law Judge ("ALJ") for a specific finding regarding the effects of alcoholism on a determination of disability. For the following reasons, the Court will deny both Motions to Vacate.

 I. FACTS & PROCEDURAL HISTORY

 On June 10, 1991, Torres filed an initial application for supplemental social security income, alleging disability since February 1991 due to "alcoholism, nerves, a gland condition, and syphilis." R. at 21. The initial application had a protected filing date of April 29, 1991. On July 22, 1991, the application was denied without appeal. On September 1, 1992, Torres filed a second application, alleging disability since September 1, 1991 due to stomach and lung cancer and drug and alcohol addiction. *fn2" Torres also submitted "new and material evidence pertaining to his impairments in 1991," permitting a re-opening of the determination of his initial application. R. at 21.

 On June 3, 1994, the ALJ made following determinations following an October 13, 1993 hearing:

 
1. The claimant age 32 has not engaged in substantial gainful activity since December 1992.
 
2. The medical evidence establishes that the claimant has "severe" or work restrictive mental impairments, including alcohol dependence, an impulsive personality disorder, and obesity, but he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 16.
 
3. The claimant's hearing testimony regarding the nature and severity of his impairments and the extent of his functional limitations was not credible, persuasive, or probative. Moreover, the claimant's testimony, if accepted as fully credible, did not indicate that he had significant physical, cognitive, or emotional restrictions which would prevent him from performing unskilled manual labor.
 
4. The claimant has the residual functional capacity to perform the physical exertion and nonexertional requirements of work except for work which involves complex or detailed tasks or instructions, or close interpersonal contacts (20 CFR 416.945).
 
5. The claimant is able to perform his past relevant work as a produce picker, fiberglass machine feeder, or meat packer.
 
6. The claimant was not under a "disability" as defined in the Social Security Act, at any time through the date of this decision (20 CFR 416.920(e)).

 R. at 28.

 On appeal to the Appeals Council, Torres submitted additional evidence which established "continued treatment and testing for multiple symptoms relating to long term problems with recurrent alcohol abuse, obesity, ulcer disease and mental impairments, as well as newly diagnosed impairments of sleep apnea, chronic low back pain, and possible renal abnormalities." R. at 9. The Appeals Council denied Torres' appeal, concluding, that "the overall picture presented . . . is one of a residual functional capacity to perform simple, unskilled work at medium and light exertional levels, including but not necessarily restricted to jobs such as those which you have performed in the past." Id.

 On May 23, 1995, acting in accordance with his rights under 42 U.S.C.A. § 1383(c)(3) (West Supp. 1996), Torres commenced a civil action in this Court requesting judicial review of the ALJ's decision. The Complaint ...


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