Morales v. Office of Disability Adjudication and Review

Filing 26

ORDER granting 13 Motion for Judgment on the Pleadings; denying 19 Motion for Hearing. For the reasons set forth herein, the Commissioner's motion for judgment on the pleadings is granted. Plaintiff's motion for discovery or a pre-trial hearing is denied. The Clerk of the Court shall enter judgment accordingly and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 5/26/2016. (Akers, Medora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 14-CV-5420 (JFB)
_____________________

ADAM MORALES A/K/A KAREEM ABDUR RAHEEM,
Plaintiff,
VERSUS

CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.
___________________
MEMORANDUM AND ORDER
May 26, 2016
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff, Adam Morales (“plaintiff”),
proceeding pro se, commenced this action
pursuant to 42 U.S.C. § 405(g) of the Social
Security Act (“SSA”), challenging the final
decision of the defendant, the Commissioner
of Social Security (“defendant” or the
“Commissioner”), that found plaintiff to be
ineligible for supplemental security income
benefits (“SSI”) for failing to satisfy the
applicable
income
and
resources
requirement. The Commissioner moved for
judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c). In
connection with his opposition to defendant’s
motion, plaintiff moved for a pre-trial hearing
or discovery to obtain documentary evidence
to support his asserted compliance with the
resources requirement. Plaintiff additionally
claims that his waiver of a hearing before the
Administrative Law Judge (“ALJ”) was
invalid.

There is substantial evidence to support
the Commissioner’s conclusion that plaintiff
failed to satisfy the resources requirement to
be eligible for SSI. Although plaintiff asserts
that by the time he applied for SSI, he had
spent down his excess income, he failed to
provide the necessary documentary evidence
to substantiate this claim. Additionally,
although plaintiff has filed a motion seeking
discovery
of
certain
supporting
documentation, even if plaintiff could obtain
this material, the Court could not properly
consider it, as it was all available to plaintiff
at the time he filed his claim with the ALJ,
and plaintiff has not provided good cause
excusing his failure to present this
information at that time. Nor has plaintiff
shown that remand is warranted because he
was prejudiced by his waiver of a hearing
before the ALJ.
Accordingly, the
Commissioner’s motion for judgment on the
pleadings is granted. Plaintiff’s motion for
discovery or a pre-trial hearing is denied.

I.
A.

BACKGROUND

had in the bank account ($30,000) were not
corroborated with proof or evidence of the
spend-down. Your expenditure allegations
were not substantiated or corroborated by
evidence.” (AR at 61.)

Factual Background

The following summary of the relevant
facts is based upon the Administrative
Record (“AR”) developed by the ALJ. A
more exhaustive recitation of the facts is
contained in the parties’ submissions to the
Court and is not repeated herein.

Thereafter, on December 31, 2012,
plaintiff requested a hearing before an ALJ
(AR at 64); the hearing was scheduled for
October 15, 2013 (AR at 75, 81). Plaintiff’s
attorney1 subsequently requested that the
hearing be postponed in order to gather
additional evidence regarding the spenddown of excess resources. (AR at 53.) The
ALJ granted the request in a letter dated
October 16, 2013 and advised:

On November 21, 2012, Plaintiff applied
for SSI. (AR at 141-45.) In the section of the
application requiring plaintiff to disclose his
available resources, plaintiff reported that, as
of November 1, 2012, he owned a savings
account containing $30,000.39. (AR at 142.)
Accordingly, the SSA denied plaintiff’s
request for supplemental income on
November 28, 2012 because his reported
resources of $30,000.39 exceeded the $2,000
cap for SSI eligibility. (AR at 135.)

a more careful accounting is
necessary of expenditures of alleged
excess resources totaling $28,000.39
($30,000.39-$2,000).
Social
Security’s complaint has been that
Mr. Morales has not given sufficient
information on expenditures totaling
$28,000. Ideally, your client should
submit an accounting listing
expenditures as follows: Date,
Amount, Purpose, Description of
Substantiating Document (If None, so
state). Following this format, it may
be possible to establish a date by
which Mr. Morales spent down his
alleged excess resource, apparently a
bank account, and at the least present
a clearer picture of expenditures for
testimony at a hearing, should a
hearing remain necessary.
If
substantiation is clear enough, it may
even be possible to reach a favorable
decision on the record without further
delay.

On December 3, 2012, plaintiff submitted
a request for reconsideration. (AR at 99102.) Along with his request, he submitted
copies of several bank account statements;
one statement dated July 10, 2012 showed a
“deposit[]/credit[]” of $30,000.39 (AR at
128), but a second statement for the period
September 11 through October 11, 2012
showed his available balance at the beginning
and end of the period as $2.76 (AR at 125).
Plaintiff contends that he spent down the
$30,000 prior to filing his application in
November 2012, and provided some receipts
evidencing certain expenditures from the
period leading up to his application. (See AR
at 99-134.)
The SSA denied his request for
reconsideration, explaining: “a thorough
review of the facts indicates that your
allegations on how you spent the money you

(AR at 52.) The letter, on which plaintiff was
copied, also added that “Mr. Morales

The attorney was appointed as plaintiff’s
representative in May 2012. (AR at 55.) The attorney

is not representing plaintiff in connection with the
instant appeal.

1

2

appeared at our office yesterday and was
advised of the need for a better accounting.”
(Id.)

clerk asked him if he wanted to waive a
hearing before the ALJ. (See Pl.’s Mot. at 2.)
On October 21, 2013, plaintiff submitted
to the ALJ a list of thirty-nine expenditures,
purportedly accounting for how plaintiff
spent down the $30,000 in his account prior
to his application for SSI.2 (AR at 28-30.)
For nine of these purchases, plaintiff
provided a related receipt; however, for most
of the purchases, plaintiff did not provide a
receipt, and, in some cases, did not even
provide the price of the item. (See AR at 2851.) The expenses for which plaintiff

Perhaps during this referenced visit to the
ALJ’s office, plaintiff discussed his
application with the ALJ (plaintiff does not
identify in his materials when this
conversation took place). Plaintiff asserts
that, during this conversation, the ALJ
informed him that if he submitted an itemized
list of expenses, a favorable decision could be
reached and a hearing would not be
necessary. (See, e.g., Compl. at 8; Pl.’s Mot.
at 2.) Plaintiff contends that, based on this
representation, he assented when the ALJ’s
Below, the Court has paraphrased plaintiff’s list of
his expenditures and provided the amount spent (as
reported by plaintiff). The Court has also indicated
whether plaintiff provided a receipt for the purchase
(regardless of whether the receipt accurately reflects
the alleged amount spent): (1) Economy Inn from
May 25, 2012 to July 30, 2012, $1,873 (receipt
provided); (2) Auto insurance from Auto Liability
Santa Fe, $495 ($165 per month) (plaintiff provides a
receipt from May 2012, which indicates that he made
one payment of $165 and a balance of $800 remained);
(3) Amtrak tickets for plaintiff and a companion, $593
(plaintiff actually provides receipts totaling $652.30);
(4) Amtrak ticket for a companion, $130 (receipt
provided); (5) A companion’s stay in Chicago, $1,000
(no receipt); (6) Plaintiff and his companion’s
expenses while in Chicago (including restaurants and
clothes), $1,300 (no receipts); (7) Boll Weevil Pawn
Redemption, $1,674.46 (receipts provided); (8)
Payment to Bank of America for a past debt, $1,148
(receipt provided); (9) U-Haul rental, $101.71 (receipt
provided); (10) Other expenses related to use of UHaul (e.g. gas, tolls, food, etc.), about $65 (no receipt);
(11) Casino in Tunica, MS (no value or receipt
provided); (12) “Casino extras” (e.g. gas, restaurants,
purchases), about $1,200 (no receipt); (13) Dixon Rd
U-Pull-It, $52.43 (receipt provided); (14) Milano
Men’s Exclusive Store (“exotic shoes” and other
apparel), about $3,500 (no receipt); (15) World Hotel,
$300 (the receipt provided shows $0 amount due
provided; however, it includes a handwritten note
stating $100/day); (16) Taxis in New York City, about
$200 (no receipts); (17) Restaurants in New York City,
about $250 (no receipts); (18) Wholesale items
(plaintiff alleges that these items were subsequently
2

stolen), $4,600 (no receipt); (19) Cricket wireless
service, May to July, $150 (no receipts provided); (20)
Boost mobile service, July to October, $200 (no
receipts provided); (21) Mobile internet service, $200
($50 per month) (no receipts provided); (22) Amtrak
ticket for plaintiff, about $121 (no receipt provided);
(23) Clothes (from stores other than Milano Men’s
Exclusive Store), about $1,000 (no receipts provided);
(24) Car accessories (including specialized rims, tinted
windows, boom box, remote lock, CD changer,
alarm), $2,100 (no receipts provided); (25) Gas from
May until August (no value or receipts provided); (26)
Finalized car payment, $900 (no receipt provided);
(27) Rent in New York between September and
November, about $1,800 (no receipts provided); (28)
Religious Ramadhan meals, about $100 (no receipts
provided); (29) Regular weekly charity of $50 per
week between May and October, about $800 (no
receipts provided); (30) Restaurants in New York City
between September and November, about $600 (no
receipts provided); (31) Incredible Pizza Amusement
Place, about $300 (no receipt provided); (32)
Individual donations to religious persons (no amount
or receipts provided); (33) Street mechanics, about
$400 (no receipt provided); (34) Car wash and
detailing between May and August, $320 (no receipts
provided); (35) Female clothing in Little Rock, $350
(no receipt provided); (36) Entertainment (DVDs,
CDs, BB King, etc.), $110 (no receipt provided); (37)
Cleaners bills, about $200 (no receipts provided); (38)
Assisting with gas for others to drive plaintiff, $125
(no receipts provided); (39) Trains and buses used
between September and November, about $336 (no
receipts separate from Amtrak receipts provided).
(AR at 27-51.)

3

provided receipts
$6,300.3 (See id.)

total

approximately

the same time, plaintiff also filed a motion
requesting discovery or a pre-trial hearing in
order to obtain subpoenas for documents that
he asserts would substantiate his spenddown. The Commissioner replied on April 6,
2015. The matter is fully briefed, and the
Court has considered all of the parties’
submissions.

In a hand-written letter dated January 17,
2014, plaintiff waived his right to appear at
the hearing before the ALJ. (ECF No. 14-4.)
On January 27, 2014, the ALJ denied
plaintiff’s request for SSI, concluding that he
had not provided sufficient proof of how he
spent down the $30,000. (AR at 13.) The
ALJ noted that, although plaintiff provided
some documentation in support of his
expenditures, “the undocumented purchases
and expenses total[ed] over $18,700” which,
the ALJ concluded, was “significantly less
than the $28,000 [plaintiff] would need to
document in order to find that he had
resources at or under the $2,000 limit.” (Id.
(emphasis added).) The ALJ also noted that,
for some purchases, plaintiff had not even
indicated the amount spent, and that there
were certain issues with the receipts he did
provide.
B.

II.

STANDARD OF REVIEW

A district court may set aside a
determination by an ALJ “only where it is
based upon legal error or is not supported by
substantial evidence.” Balsamo v. Chater,
142 F.3d 75, 79 (2d Cir. 1998) (citing Berry
v. Schweiker, 675 F.2d 464, 467 (2d Cir.
1982)). The Supreme Court has defined
“substantial evidence” in Social Security
cases to mean “more than a mere scintilla”
and that which “a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401
(1971) (internal citation and quotation marks
omitted); see Selian v. Astrue, 708 F.3d 409,
417 (2d Cir. 2013). Furthermore, “it is up to
the agency, and not th[e] court, to weigh the
conflicting evidence in the record.” Clark v.
Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d
Cir. 1998). If the court finds that there is
substantial evidence to support the
Commissioner’s determination, the decision
must be upheld, “even if [the court] might
justifiably have reached a different result
upon a de novo review.” Jones v. Sullivan,
949 F.2d 57, 59 (2d Cir. 1991) (internal

Procedural History

Plaintiff, proceeding pro se, filed his
complaint on August 28, 2014. Plaintiff
asserts that the ALJ made various mistakes of
fact and that the waiver of his right to appear
at a hearing before the ALJ was invalid. The
Commissioner moved for judgment on the
pleadings on January 26, 2015. On March
23, 2015, plaintiff filed his response in
opposition to the Commissioner’s motion. At
3

This sum was calculated by tallying the following
receipts: an invoice for $1,873.00 from Economy Inn
(AR at 31); $495 for auto insurance (as noted, although
plaintiff has only provided a receipt indicating that he
made a payment of $165, he claims that he paid $495
in premium payments, so the Court will credit this
assertion for the purposes of this calculation) (AR at
32); Amtrak receipts (all dated in June 2012) in the
amounts of $143.00 (AR at 33), $121.55 (AR at 34),
$103.70 (AR at 35), $161.50 (AR at 36), $121.55 (AR
at 37), and $130.00 (AR at 51); pawn payments and
pawn redemption payments totaling $1,674.46 (AR at

38-47); a $300 receipt from World Hotel, Inc. for a
three-day stay (as noted, the receipt plaintiff provides
shows a balance of $0; however, it also includes a
handwritten note that says “$100 per day,” so, for the
purposes of this calculation, the Court will assume
plaintiff paid $300) (AR at 48); a $101.71 receipt for
renting U-Haul moving equipment (AR at 50); a
cashier’s check made payable to Bank of America for
$1,148.09 (AR at 51); and a receipt for a radiator from
Dixon Road U-Pull-It in the amount of $52.43 (AR at
132).

4

C.F.R. § 416.200). “Even if a claimant’s
resources exceed the $[2],000 limitation at
the time of filing, the SSA may nonetheless
find the claimant to be eligible if ‘he or she
establishes by credible evidence that those
resources have been “spent down,” that is,
that any excess above the resource limit has
been eliminated’ by the time of the SSA’s
final determination.” Id. (quoting Nicolae v.
Bamhart, No. 04-CV-2068 (FB), 2005 WL
715929, at *1 (E.D.N.Y. Mar. 28, 2005),
aff’d sub nom. Nicolae v. Comm’r of Soc.
Sec., 155 F. App’x 558 (2d Cir. 2005)). “In
calculating whether a claimant has spent
down excess resources, the ALJ is ‘free to
disregard self-serving statements that cannot
be verified.’” (Id. (quoting Nicolae, 2005
WL 715929, at *3)).

citation and quotation marks omitted); see
also Yancey v. Apfel, 145 F.3d 106, 111 (2d
Cir. 1998) (“Where an administrative
decision rests on adequate findings sustained
by evidence having rational probative force,
the court should not substitute its judgment
for that of the Commissioner.”).
III.
A.

DISCUSSION

Substantial Evidence of the
“Spend-Down”

“The federal Supplemental Security
Income program, 42 U.S.C. § 1381 et seq.,
provides non-medical cash assistance to
aged, blind or disabled persons. Under the
statute, an aged, blind or disabled person is
eligible for SSI if either their monthly income
or overall available resources do not exceed
certain maximum amounts set forth in the
statute and regulations.” Frerks v. Shalala,
848 F. Supp. 340, 343-44 (E.D.N.Y. 1994)
(citing 42 U.S.C. § 1382 and 20 C.F.R. § 416
subparts D and K (income limits) and 20
C.F.R. § 416.1205 (resource limits)). The
maximum dollar amount of resources for an
individual is $2,000. See 42 U.S.C. §
1382(a)(1)(A), (B) & (a)(3)(B).
The
regulations define resources as “cash or other
liquid assets or any real or personal property
that an individual (or spouse, if any) owns
and could convert to cash to be used for his
or her support and maintenance.” 20 C.F.R.
§ 416.1201(a).

Thus, at issue here is the disposition of
the money in plaintiff’s account prior to his
application for SSI and whether the money
was actually spent or simply converted to
other assets that should be included in the
calculation of plaintiff’s total available
resources. Although plaintiff provides a list
of the items on which he allegedly spent
down the $30,000 in his account, the ALJ
correctly noted that these expenditures are
not supported by adequate (or, in some cases,
any) substantiating documentation. In fact,
plaintiff has only provided receipts for
purchases totaling less than $7,000 (see supra
at note 3),4 meaning that plaintiff has failed
to properly account for nearly $22,000.
Although some of these purchases may not be
easy to document (for instance, his claimed
$900 in religious contributions), other
expenses plainly should have receipts that
plaintiff could have provided in support of his
claim, for example, plaintiff’s $350 in cell

“A claimant is required to provide
evidence to prove that he or she meets the
financial requirements.” Rashed v. Astrue,
No. 07-CV-2726 (NGG), 2010 WL 3036795,
at *3 (E.D.N.Y. July 30, 2010) (citing 20
4

The Commissioner also fairly notes that there are
significant infirmities with some of this evidence. For
instance, plaintiff maintains he spent $465 on auto
insurance (AR at 28), but only provides a receipt
showing payment of $165 (AR at 32). Similarly,
plaintiff contends that he paid World Hotel $300 (AR

at 28), but the receipt he provides shows a charge of
$0 (AR at 48). The ALJ also noted that “[m]any of the
receipts . . . are for the period of time prior to June
2012 and therefore occurred prior to the time claimant
had $30,000.39 in his bank account.” (AR at 13.)

5

phone bills, $200 in taxis, $850 in
restaurants, or $3,500 in men’s clothing and
exotic accessories.

B.

Request for Discovery or a Pre-Trial
Hearing

As noted, plaintiff has moved for a pretrial hearing or discovery, seeking to
subpoena documents or affidavits that he
contends will substantiate the sums spent on
eight of the thirty-nine purchases comprising
his spend-down.5

Without this supporting documentation,
plaintiff has not satisfied his burden to show
that his resources did not exceed $2,000. See,
e.g., Schenck v. Comm’r of Soc. Sec., No. 14
CIV. 1445 KPF, 2015 WL 4393077, at *8
(S.D.N.Y. July 16, 2015) (ALJ was justified
in concluding that claimant had resources in
excess of $2,000 where claimant was unable
to provide documentary evidence to
substantiate her claim that she spent down her
excess resources paying medical bills);
Rashed, 2010 WL 3036795, at *4 (denying
SSI where plaintiff failed to provide reliable
documentary evidence to support spenddown); see also Ball v. Colvin, No. CV-201201574-PHX-BS, 2013 WL 5886604, at *5
(D. Ariz. Oct. 31, 2013) (substantial evidence
supported ALJ’s conclusion that plaintiff’s
resources exceeded $2,000 where plaintiff
failed to provide “objective evidence” to
support his assertion to the contrary); Alford
v. Astrue, No. 2:11CV00042 JLH-BD, 2012
WL 2450774, at *3 (E.D. Ark. June 27, 2012)
(although plaintiff provided account records
showing that his bank account had dropped
from $19,000 to less than $2,000 at the time
plaintiff applied, the ALJ did not err in
denying SSI because claimant “fail[ed] to
provide receipts or other documentation
showing that the money was spent”).
Accordingly, the ALJ was justified in
concluding that plaintiff did not satisfy the
resources requirement for SSI eligibility.

“A court may order the Commissioner to
consider additional evidence ‘only upon a
showing that there is new evidence which is
material and that there is good cause for the
failure to incorporate such evidence into the
record in a prior proceeding.’” Schaal v.
Apfel, 134 F.3d 496, 506 (2d Cir. 1998)
(quoting 42 U.S.C. § 405(g)).
At the outset, the Court notes that
plaintiff does not presently possess this “new
evidence”; he has only provided descriptions
of the type of information he believes he can
obtain.6
However, even assuming that
plaintiff could secure the desired testimony
or documents, all of the evidence he seeks
existed at the time he filed his appeal with the
ALJ, and plaintiff has failed to provide any
good reason justifying his failure to obtain
and present this information to the ALJ
during the prior proceeding. See Nicolae,
2005 WL 715929, at *4 (refusing to remand
for consideration of evidence that claimant
had no good cause for failing to present to the
ALJ during prior proceeding); Ibrahim v.
Astrue, No. 09-CV-4496 JFB, 2011 WL
477810, at *7 (E.D.N.Y. Feb. 4, 2011)
(same). In fact, both plaintiff and his attorney

5

In his motion, plaintiff provides a brief description of
the type of evidence he wishes to obtain to substantiate
the following expenses: (1) his car, (2) his visit to the
establishment, “Incredible Pizza,” (3) his payment to
Bank of America, (4) his transactions at the Boll
Weevil Pawn Superstore, (5) his stay at World Hotel,
(6) his purchases at Milano men’s clothing store, (7)
his acquisition of wholesale items, (8) his rental of an
apartment in New York City (he also seeks “some

statisticle (sic) gathering place that would give an
estimate of cost to visit the most expensive city in
America tied with Hawaii for first place”). (See Pl.’s
Mot. at 1-2.) Plaintiff also indicates that he would
secure a statement from the ALJ regarding the ALJ’s
comments concerning what materials plaintiff needed
to provide to prove out his claim for SSI. (Id.)
6

6

For instance, he seeks a subpoena of the sales clerk

were advised in writing before the ALJ
rendered his decision that a more careful
accounting of plaintiff’s expenses was
required and that plaintiff should submit
substantiating documents to the ALJ.7 (See
AR at 52, 53.) If plaintiff believed that the
materials identified in his pending motion
were relevant to his case, he or his attorney
could have asked the ALJ to subpoena it
during the proceedings before the ALJ. (See
20 C.F.R. § 416.1450.) However, neither
plaintiff nor his attorney made such a request.
Additionally, plaintiff and his attorney were
even granted an extension by the ALJ for the
express purpose of collecting the evidence
plaintiff now seeks. (See AR at 52-53.)
Plaintiff was on notice that substantiating
documentation was required and was granted
an extension to secure such materials.
Therefore, plaintiff has no good cause for
failing to provide them to the ALJ.
Accordingly, plaintiff’s motion for discovery
or a pre-trial hearing is denied.
See
McMahan v. Comm’r of Soc. Sec., No. 13
CIV. 6546 JGK HBP, 2015 WL 1787215, at
*6 (S.D.N.Y. Apr. 20, 2015) (explaining that
plaintiffs should not be permitted to submit
evidence that was available, but not
presented, during the prior proceeding
because doing so “would allow parties to
undertake trial runs of their motion, adding to
the record in bits and pieces depending upon
the rulings or recommendation they
received” (quoting Wallace v. Tilley, 41 F.3d
296, 302 (7th Cir. 1994) (internal quotation
marks omitted)).

C.

Waiver of Hearing Before the ALJ

Finally, plaintiff insists that he only
waived the hearing based on the ALJ’s
purported representations that a favorable
decision could be reached on an expedited
basis without a hearing. (Pl.’s Mot. at 2.)
Section 405(b) of Title 42 of the United
States Code entitles Social Security claimants
to “reasonable notice and opportunity for a
hearing” with respect to the Commissioner’s
decision.
42 U.S.C. § 405(b) (2000).
However, a claimant may waive this right.
See 20 C.F.R. § 416.1450(b); see also
Francisco v. Barnhart, No. 01 CIV. 8657
(SAS), 2003 WL 548870, at *2 (S.D.N.Y.
Feb. 25, 2003). Social Security Ruling
(“SSR”) 79-19 provides:
An individual or the individual’s
authorized representative may waive
the right to personal appearance at a
hearing only by a writing signed by
the individual or the authorized
representative which shows: 1. a
thorough explanation of the hearing
procedure has been given; 2. the right
to personal appearance at the hearing
to testify and present evidence has
been explained; 3. an explanation has
been given of the right to
representation at the hearing by an
attorney or other person of the
individual’s choice; 4. it has been
explained that, in some cases,
additional
evidence
obtained

at the men’s clothing store where he allegedly made
purchases of $3,500. (Pl.’s Mot. at 1-2.) He also notes
that “incredible pizza can attest that I was there after
May 2012 which cost money to get in and particpa[t]e
in its functions with the two children I brough[t].” (Id.
at 1.)

16.) However, this asserted position conflicts with the
two letters sent to plaintiff and his attorney, which
instructed them to provide substantiating documents,
and with the earlier decision, which concluded that
plaintiff’s submission of a list of expenditures was
inadequate to prove the spend-down, absent
substantiating documentation. Further, it does not
appear that plaintiff or his attorney actually believed
that only a list of expenses was required, as they
submitted documentary evidence to support his claim.

7

Plaintiff contends that the ALJ advised him that he
need only provide a list of expenses, which he seems
to imply led him to believe that only the list was
required (and not substantiating evidence). (See AR at

7

thorough oral testimony and personal
presence before the presiding officer
may be of value in evaluating the
issues; 5. the individual has been
advised that, if he or she does not
appear, the claim will be decided
solely on the written evidence then in
file plus any additional evidence
submitted by the individual or the
representative or obtained by the
hearing officer. 6. the individual has
been advised that he or she may
withdraw the waiver of the right to
appear at the hearing at any time prior
to mailing of the notice of the
decision.

Plaintiff insists that he would not have
waived his right to a hearing absent the
representations by the ALJ, but he fails to
address in what way he was prejudiced by his
waiver of the hearing, and the mere absence
of a hearing is not enough to establish
prejudice. See, e.g., Exum v. Astrue, No. 10CV-920-JPS, 2011 WL 5921436, at *2 (E.D.
Wis. Nov. 28, 2011) (rejecting plaintiff’s
circular argument that she was “prejudiced
by her absence at the hearing because she was
absent from the hearing” and therefore
concluding that non-adherence to SRR 79-19
was harmless error); Lewis v. Astrue, No. 06121-B-W, 2007 WL 2021912, at *6 & n.8 (D.
Me. July 11, 2007), report and
recommendation adopted, No. CIV 06-121B-W, 2007 WL 2344959 (D. Me. Aug. 15,
2007) (where plaintiff “neither suggests that
she was prejudiced by loss of opportunity to
testify on her own behalf nor proffers
testimony she might have presented,” court
would not remand on the basis of plaintiff’s
conclusory argument that “the loss of the
opportunity for hearing and presentation of
[plaintiff’s] evidence cannot be harmless
error”). Nor does the record support the
conclusion that plaintiff was prejudiced. The
ALJ’s decision to deny plaintiff SSI turned
on the fact that plaintiff failed to provide
documentation for over $21,000 of the spenddown expenditures. (AR at 13.) There is
nothing in the record to suggest that, if a
hearing had been conducted, plaintiff could
have rectified this deficiency.

SSR 79-19 (S.S.A. 1979). Importantly,
however, the absence of a knowing and
voluntary waiver requires remand only if
plaintiff was prejudiced by his absence from
the hearing. See, e.g., Francisco, 2003 WL
548870, at *2 (“Invalid waivers warrant
remand for a new hearing only if the plaintiff
suffered prejudice.”); Leach ex rel. Murray v.
Barnhart, No. 02 CIV.3561 RWS, 2004 WL
99935, at *7 (S.D.N.Y. Jan. 22, 2004); see
also Biswas v. Comm’r of Soc. Sec., No. 053828, 2007 WL 580523, at *1 (3d Cir. Feb.
26, 2007) (noting that although plaintiff’s
waiver failed to comply with the SSR 79-19
requirements, remand was not required
because plaintiff failed to show that he was
prejudiced by the absence of a hearing).
Plaintiff submitted a single-page, written
letter, stating: “I Adam Morales waives (sic)
having to appear for the court decision!”
(ECF No. 14-4.) This simple statement lacks
many of the waiver requirements delineated
in SSR 79-19. However, the Court need not
decide whether their absence renders this
waiver invalid because, even assuming it was
not valid, the Court finds that plaintiff has not
demonstrated that he was prejudiced because
he did not have a hearing.
8

IV.

CONCLUSION

For the reasons set forth above, the
Commissioner’s motion for judgment on the
pleadings is granted. Plaintiff’s motion for
discovery or a pre-trial hearing is denied.
SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated: May 26, 2016
Central Islip, NY
***
Plaintiff proceeds pro se. The Commissioner
is represented by Candace Scott Appleton,
United States Attorney’s Office, Eastern
District of New York, 271 Cadman Plaza
East Brooklyn, NY 11201.

9