Lundie v. Saul
Filing
20
MEMORANDUM & ORDER :SO ORDERED that the Court DENIES Plaintiff's motion for appointment of counsel, GRANTS Defendant's motion for judgment on the pleadings and DENIES Plaintiff's cross-motion. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that, should Plaintiff seek in forma pauperis status for the purpose of an appeal, any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied. The Clerk of Court is directed to close this case and mail a copy of this Order to the pro se Plaintiff. Ordered by Judge Joan M. Azrack on 3/31/2021. (CM to pro se plaintiff and judgment clerk) (Florio, Lisa)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JOHN LUNDIE,
For Online Publication Only
Plaintiff,
MEMORANDUM &
ORDER
19-CV-4196 (JMA)
-againstCOMMISSIONER OF SOCIAL SECURITY,
Defendant.
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APPEARANCES:
John Lundie
Pro se Plaintiff
Mark J. Lesko
Acting United States Attorney
Paulina Stamatelos
Assistant United States Attorney
271 Cadman Plaza East, Seventh Floor
Brooklyn, NY 11201
Attorneys for Defendant
AZRACK, United States District Judge:
Pro se plaintiff John B. Lundie (“Plaintiff”) seeks review of the final administrative
decision by the Commissioner of Social Security (the “Commissioner”), reached after a hearing
before an administrative law judge (“ALJ”), denying his application for disability insurance
benefits (“DIB”) under the Social Security Act (the “Act”).
Before the Court are the
Commissioner’s motion for judgment on the pleadings, (ECF No. 11), and Plaintiff’s crossmotion, (ECF No. 13).1 Because the ALJ’s decision was supported by substantial evidence and
Plaintiff incorrectly labeled his motion as a “motion for continuance under Rule 56(f)(2).” (ECF No. 13.) The Court
will treat Plaintiff’s motion as a motion for judgment on the pleadings.
1
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applied the proper legal standards, the Commissioner’s motion is GRANTED, and Plaintiff’s
cross-motion is DENIED.
Plaintiff also filed a motion for appointment of counsel on March 19, 2021. (ECF No. 19.)
That motion is DENIED.
I. BACKGROUND
A. Procedural History
On January 8, 2015, Plaintiff filed an application for DIB with the Social Security
Administration (“SSA”), alleging disability as of November 8, 2006, due to a memory and focus
impairment. (Tr. 59.)2 On March 18, 2015, the SSA denied Plaintiff’s claim for DIB because he
was found not disabled. (Tr. 59-69.)
Following the denial of his claim, Plaintiff requested a hearing before an ALJ on May 19,
2015. (Tr. 70-71.) Plaintiff appeared pro se before ALJ Alan B. Berkowitz (“ALJ Berkowitz” or
the “ALJ”) for an initial hearing on June 15, 2017, which was adjourned to allow Plaintiff an
opportunity to obtain representation and produce additional medical evidence.3 (Tr. 28-36.) On
September 28, 2017, a second hearing was held at which Plaintiff, appearing pro se, testified along
with vocational expert (“VE”) Rocco J. Meola. (Tr. 37-58.)
In a December 29, 2017 decision, ALJ Berkowitz denied Plaintiff’s claim and found that
he was not disabled under the Act from his alleged onset date of November 8, 2006 through
December 31, 2011, the date his Title II disability insured status expired. (Tr. 20-24.) Plaintiff
subsequently requested review by the Appeals Council. (Tr. 107-113.) When the Appeals Council
2
Citations to “Tr.” refer to pages of the certified administrative record filed by the Commissioner. (ECF No. 15.)
3
At the time of the first hearing, there were only eight pages of medical evidence in the record. (Tr. 30.)
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denied Plaintiff’s request on November 29, 2018, ALJ Berkowitz’s decision became the final
decision of the Commissioner. (Tr. 13-15.) This appeal followed. (ECF No. 1.)
B. Factual Background
Plaintiff was born on March 12, 1970 and was thirty-six years old at the time of the onset
of his alleged disability. (Tr. 59.) He graduated from college in 1992, and law school in 2000, but
is not admitted to the bar. (Tr. 43, 131.) At the time of the hearing, he lived with his parents and
cared for them by helping with household chores and the preparation of meals. (Tr. 46, 137-38.)
Plaintiff’s function report indicates that he socialized with his family, attended church
weekly, and denied having problems getting along with others, including authority figures. (Tr.
142, 144.) He prepared simple meals, did laundry, ironed, did dishes, and performed general
household maintenance. (Tr. 139-40.) Plaintiff was able to shop for groceries and clothes inperson, by mail, and on the computer. (Tr. 141.) He could handle a savings account, count change,
and pay bills. (Tr. 141.)
Plaintiff’s past relevant work was as an associate in a law firm, a fishery technician, a
document reviewer, and a retail sales associate. (Tr. 146-50, 43.) He stated he has not worked
since the alleged onset date in November 2006 because his contract position as a document
reviewer expired. (Tr. 45-46.) He testified he could follow written and spoken instructions, but
had difficulty with attention and concentration, including reading books and completing household
tasks. (Tr. 144-45.)
Plaintiff testified that he was having memory problems, including long-term memory
issues and not being able to remember where he placed things or what he ate for breakfast. (Tr.
44-45, 47.) He associates his memory problems with his arrest in 2004, which resulted in him
being medicated. (Tr. 46.) Plaintiff stated that he is inattentive, forgetful, and would have
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difficulty completing “repetitive work.” (Tr. 50.) He testified that he had “no functioning dayto-day memory,” but explained that he felt that he “function[ed] pretty well.” (Tr. 47-48.) Plaintiff
indicated that he was not receiving psychiatric treatment at the time of the hearing because of no
“manifest [ ] need.” (Tr. 42.) He stated that he had Medicaid insurance in 2014 for an elevenmonth period after being committed in 2014, but he allowed the insurance to lapse. (Tr. 47-48.)
C. Relevant Medical Evidence
The administrative record contains eight pages of medical evidence, including documents
from Stony Brook University Medical Center (“Stony Brook”) and Brookhaven Memorial
Hospital Medical Center (“Brookhaven”). (Tr. 30, 202-07.) The earliest medical evidence in the
record is from November 15, 2014, the date Plaintiff was involuntarily taken by police to a
comprehensive psychiatric emergency program at Stony Brook. (Tr. 202, 205.) Upon Plaintiff’s
discharge from Stony Brook, on November 17, 2014, he was admitted to Brookhaven. (Tr. 20206, 134.) Brookhaven treatment notes show that Plaintiff had previously been admitted to
Greenport Hospital (currently known as Stony Brook) in 2004 for psychiatric treatment, after
which he was prescribed Abilify for a few months. (Tr. 205.) Plaintiff blames this drug for his
alleged disability. (Tr. 205.) With regard to his November 17, 2014 admission, Plaintiff was
diagnosed by Dr. Satpal Rathour, M.D. (“Dr. Rathour”) with paranoid schizophrenia and was
treated with Haldol and lithium. (Tr. 206.) Upon his discharge on December 23, 2014, Plaintiff
agreed to apply for Medicaid insurance and to continue with his medications including lithium,
Haldol Decanoate, Cogentin, and Haldol. (Tr. 205-06.)
Plaintiff was notified via letter that he was being referred for a consultative examination
scheduled for June 15, 2017. (Tr. 211.) After Plaintiff failed to appear for the exam, he was
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notified via letter that it was rescheduled for July 5, 2017. (Tr. 195, 211.) Plaintiff failed to appear
for the July 2017 examination as well. (Tr. 195, 211.)
Plaintiff testified that the only records missing from his file were the results from an
October 2015 EEG and a January 2016 MRI at Huntington Hospital. (Tr. 41-42.) The ALJ
informed Plaintiff that he would “attempt to get the Huntington Hospital records,” and that he
would consider anything else Plaintiff wanted to submit. (Tr. 57.) He also noted that Plaintiff was
not currently in treatment. (Tr. 44.)
D. Vocational Expert Testimony
Vocational expert Rocco Meola (the “VE”) also testified at the administrative hearing. (Tr.
52-54.) ALJ Berkowitz asked the VE to consider a hypothetical individual with the same age,
education, and work experience as Plaintiff, who is limited to work along all exertional levels,
involving simple, routine, repetitive tasks, in a low-stress environment requiring no more than
occasional interaction with the public and coworkers. (Tr. 53.) The VE testified that, consistent
with the Dictionary of Occupational Titles (“DOT”), this hypothetical individual could not perform
Plaintiff’s past work, but could perform the jobs of microfilm mounter, mail sorter, and inspectorpacker. (Tr. 54.)
E. The ALJ’s Decision
ALJ Berkowitz issued his decision on December 29, 2017, applying the five-step process
described below, pursuant to 20 C.F.R. § 404.1520. (Tr. 20-24.) At step one, ALJ Berkowitz
concluded that Plaintiff had not engaged in substantial gainful activity since November 8, 2006.
(Tr. 22.) At step two, the ALJ found that “there were no medical signs or laboratory findings to
substantiate the existence of a medically determinable impairment.” (Tr. 23.) Specifically, he
noted that “[t]he record is completely devoid of any evidence of an impairment or treatment prior
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to the claimant’s date last insured of December 31, 2011.” (Tr. 23.) Therefore, ALJ Berkowitz
ended his analysis at the second step and found that Plaintiff was not disabled. (Tr. 24.)
II. DISCUSSION
A. Motion for Appointment of Counsel
On March 19, 2021—almost a year after the parties filed their briefs—Plaintiff filed a
motion for appointment of counsel.
Pursuant to 28 U.S.C. § 1915(e)(1), courts may appoint an attorney to represent someone
who is unable to afford counsel. Courts possess broad discretion when determining whether
appointment is appropriate, “subject to the requirement that it be ‘guided by sound legal
principle.’” Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 171-72 (2d Cir. 1989) (quoting Jenkins
v. Chemical Bank, 721 F.2d 876, 879 (2d Cir. 1983)). According to the Second Circuit:
[T]he district judge should first determine whether the indigent’s position seems
likely to be of substance. If the claim meets this threshold requirement, the court
should then consider the indigent’s ability to investigate the crucial facts, whether
conflicting evidence implicating the need for cross-examination will be the major
proof presented to the fact finder, the indigent’s ability to present the case, the
complexity of the legal issues and any special reason in that case why appointment
of counsel would be more likely to lead to a just determination.
Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986). The Second Circuit also held that
these factors are not restrictive, and that “[e]ach case must be decided on its own facts.” Id. at 61.
The Court has reviewed Plaintiff’s application together with the pleadings and briefs and
finds that the appointment of counsel is not warranted at this time. Plaintiff’s claim does not seem
likely to be of substance. In any event, even assuming that this threshold requirement of Hodge is
satisfied, the Court finds that appointment of counsel is not warranted. Plaintiff, who graduated
from law school, was able to draft a brief addressing the key issue in this appeal—the ALJ’s duty
to develop the record. Plaintiff has demonstrated an ability to present his case on his own behalf.
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Moreover, because social security cases are largely decided on the administrative record based on
arguments presented in written memoranda, skill in presenting evidence and cross-examination is
not required. Finally, the Court notes that Plaintiff’s motion for appointment of counsel discusses
his attempts to obtain a 2018 MRI, which, for the reasons discussed below, is irrelevant to the
instant appeal.
Accordingly, the Court denies Plaintiff’s motion for appointment of counsel.
B. Social Security Disability Standard
Under the Act, “disability” is defined as the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). An individual is disabled when his
“physical or mental impairment or impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national economy. . . .” 42 U.S.C.
§ 423(d)(2)(A).
In order to collect DIB under Title II of the Act, a claimant must establish that he or she
became disabled prior to the expiration of his or her insured status. 42 U.S.C.§§ 423(a)(1)(A),
423(c)(1). “Evidence of an impairment which reached disabling severity after the expiration of
insured status, or which was exacerbated after such expiration, cannot be the basis for entitlement
to a period of disability and disability insurance benefits, even though the impairment itself may
have existed before the claimant’s insured status expired.” Davis v. Colvin, No. 14-CV-06373,
2016 WL 368009, at *2 (W.D.N.Y. Feb. 1, 2016) (citing Arnone v. Bowen, 882 F.2d 34, 37-38
(2d Cir. 1989)).
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The Commissioner’s regulations set out a five-step sequential analysis by which an ALJ
determines disability. 20 C.F.R. § 404.1520. The analysis is summarized as follows:
[I]f the Commissioner determines (1) that the claimant is not working, (2) that he
has a ‘severe impairment,’ (3) that the impairment is not one [listed in Appendix 1
of the regulations] that conclusively requires a determination of disability, and (4)
that the claimant is not capable of continuing in his prior type of work, the
Commissioner must find him disabled if (5) there is not another type of work the
claimant can do.
Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008) (quoting Green–Younger v. Barnhart, 335
F.3d 99, 106 (2d Cir. 2003)). At any of the previously mentioned steps, if the answer is “no,” then
the analysis stops and the ALJ must find claimant not disabled under the Act. 20 C.F.R. §
404.1520. The claimant bears the burden at the first four steps; but at step five, the Commissioner
must demonstrate that “there is work in the national economy that the claimant can do.” Poupore
v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009).
C. Scope of Review
In reviewing a denial of disability benefits by the SSA, it is not the function of the Court
to review the record de novo, but to determine whether the ALJ’s conclusions “‘are supported by
substantial evidence in the record as a whole or are based on an erroneous legal standard.’” Schaal
v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quoting Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d
Cir. 1997)). Substantial evidence is defined as “‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Perez v. Chater,
77 F.3d 41, 46 (2d Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “‘To
determine whether the findings are supported by substantial evidence, the reviewing court is
required to examine the entire record, including contradictory evidence and evidence from which
conflicting inferences can be drawn.’” Snell v. Apfel, 177 F.3d 128, 132 (2d Cir. 1999) (quoting
Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam)). Thus, the Court will not
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look at the record in “isolation but rather will view it in light of other evidence that detracts from
it.” State of New York ex rel. Bodnar v. Sec. of Health and Human Servs., 903 F.2d 122, 126 (2d
Cir. 1990). An ALJ’s decision is sufficient if it is supported by “adequate findings supported by
evidence having rational probative force.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).
Conversely, a remand for further proceedings is warranted in cases where the
Commissioner has failed to provide a full and fair hearing, to make sufficient findings, or to have
correctly applied the law and regulations. See Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999);
see also 42 U.S.C. § 405(g) (“The court shall have power to enter, upon the pleadings and transcript
of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing.”).
D. Analysis
The record shows that Plaintiff was last employed in 2006. (T. 44.) In his decision, the
ALJ determined Plaintiff met the insured status requirements of the Social Security Act (“the Act”)
through December 31, 2011. (T. 22.) Accordingly, to qualify for DIB, Plaintiff was required to
demonstrate that he was under a disability that began on or before December 31, 2011. In support
of his motion, Plaintiff argues that the ALJ did not properly develop the record and the ALJ’s
decision was not supported by substantial evidence. The Court disagrees. For the reasons set forth
below, the Court finds that the ALJ properly developed the record and determined that Plaintiff
was not under a disability as defined by the Act prior to his date last insured and therefore was not
eligible for DIB benefits.4
Plaintiff’s contention that his 2004 and 2014 arrests violated his constitutional rights and that he is requesting a
“continuance” “in order to obtain affidavits and develop the evidentiary record” “that would support [his] assertion of
false arrest and medical malpractice, leading to damages. . .” is irrelevant to his disability determination and therefore
his request for a continuance is denied. (See Pl.’s Mot. at 9-10.)
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1. The ALJ Properly Developed the Record
“Whether the ALJ has met his duty to develop the record is a threshold question. Before
reviewing whether the Commissioner’s final decision is supported by substantial evidence . . . the
court must first be satisfied that the ALJ provided Plaintiff with a full hearing under the Secretary’s
regulations and also fully and completely developed the administrative record.” Craig v. Comm’r
of Soc. Sec., 218 F. Supp. 3d 249, 261-62 (S.D.N.Y. 2016) (internal quotation marks and citations
omitted); see also 42 U.S.C. § 405(g). Although “[t]he claimant has the general burden of proving
that he or she has a disability within the meaning of the Act,” nevertheless, “because a hearing on
disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation
to develop the administrative record.” Burgess, 537 F.3d at 128 (internal quotation marks and
brackets omitted). Moreover, where the claimant appears pro se, the ALJ has a heightened duty
to “protect a pro se claimant’s rights ‘by ensuring that all of the relevant facts [are] sufficiently
developed and considered.” Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (alteration in original)
(quoting Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980)). Remand to the Commissioner
is appropriate when there are “obvious gaps” in the record and the ALJ has failed to seek out
additional information to fill those gaps. See Lopez v. Comm’r of Soc. Sec., 622 F. App’x. 59, 60
(2d Cir. N.Y. 2015) (citing Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999)).
“[T]he claimant has the initial burden to demonstrate the existence of a disabling condition
by furnish[ing] medical and other evidence that [the Commissioner] can use to reach conclusions
about [the claimant’s] medical impairment(s).” Tavarez v. Astrue, No. 11-CV-2784, 2012 WL
2860797, at *3 (E.D.N.Y. July 11, 2012) (internal quotation marks and citation omitted). Thus,
though an ALJ must make reasonable efforts to aid an applicant in retrieving necessary medical
reports from his medical sources, “an ALJ is not required to attempt to obtain additional evidence
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to fill any gap in the medical evidence; rather an ALJ is required to do so only where the facts of
the particular case suggest that further development is necessary to evaluate the claimant’s
condition fairly.” Francisco v. Commissioner of Social Security, No. 13-CV-1486, 2015 WL
5316353, at *11 (S.D.N.Y. Sept. 11, 2015) (citing Tankisi v. Comm’r of Soc. Sec., 521 F. App’x
29, 32 (2d Cir. 2013)).
Here, the Court finds that ALJ Berkowitz provided Plaintiff with a fair hearing and made
reasonable efforts to develop the record. Plaintiff failed to furnish any evidence that he suffered
from a severe medical impairment prior to his date last insured to support his disability claim.
During Plaintiff’s June 15, 2017 hearing, ALJ Berkowitz noted that the hearing file only contained
eight pages of medical records. (Tr. 30.) Following his questioning of Plaintiff, the ALJ provided
Plaintiff with an opportunity to adjourn the hearing in order to retain representation and obtain the
relevant medical records. (Tr. 31-32.) However, by the time of Plaintiff’s second hearing, on
September 28, 2017, Plaintiff had not submitted any additional medical evidence.5 (Tr. 39-40.)
ALJ Berkowitz questioned Plaintiff about any missing medical evidence, and Plaintiff responded
that the only records missing from his file were the results from an October 2015 EEG and a
January 2016 MRI, both of which were performed at Huntington Hospital. (Tr. 41-42.) The ALJ
informed Plaintiff that he would attempt to obtain the Huntington Hospital records for him and
that if Plaintiff had any other evidence that he wanted in the record, he would consider it. (Tr. 42,
57.) Accordingly, that same day, the ALJ sent a written request to Huntington Hospital requesting
medical records from October 29, 2015 through the present date. (Tr. 200.) Huntington Hospital
never responded to the request. (Tr. 20.)
ALJ Berkowitz informed Plaintiff that “[a]s the record [ ] stands now, it is completely inadequate for me to form any
decision about any condition you have.” (Tr. 39.)
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Notably, these records post-date the date last insured by nearly four years. Plaintiff has not
shown that the missing 2015 and 2016 medical records have any significance to his claim of
disability for the period November 2006 through December 2011.6 See Tavarez, 2012 WL
2860797, at *3 (“The claimant also bears the burden, when contending that the ALJ failed to
develop the record, to show that the missing evidence was significant and harmful to h[is] claim.”).
To the extent Plaintiff is asserting that the ALJ erred by not obtaining his 2004 hospital
records, that claim also fails. Those records predate his alleged onset date by two years and there
is no evidence that Plaintiff received any subsequent treatment between November 2006 and
December 2011.
Therefore, as neither Plaintiff’s testimony, nor any evidence in the record, suggests the
existence of further medical evidence from the relevant time period, the ALJ did not fail to meet
his obligation to develop the record.
Furthermore, Plaintiff’s failure to attend his scheduled consultative examinations preclude
him from claiming that the ALJ failed to develop the record. See Maroulis v. Colvin, No. 16-CV2427, 2017 WL 7245388, at *19 (S.D.N.Y. Jan. 18, 2017) (where the ALJ cannot obtain medical
reports from the claimant’s relevant treating physicians, or the record is otherwise “insufficient to
make a disability determination,” the regulations provide “that the ALJ should ask the claimant to
attend one or more consultative evaluations.”) (citing 20 C.F.R. §§ 404.1512(e), 404.1517).
Applicable regulations require claimants to cooperate with the agency’s request for medical
evidence, including submitting to medical examinations. See 20 C.F.R. § 416.916. If a claimant
Moreover, Plaintiff testified that the MRI report he sought to add to the record as medical evidence “is false.” (Tr.
51.) Specifically, Plaintiff testified that he “think[s] the report is exactly the opposite of what the actual scan would
show.” (Tr. 51.)
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fails to attend an evaluation without “good reason,” the ALJ is required to issue a decision based
upon the available evidence. See 20 C.F.R. § 416.918(a).7
Here, the SSA scheduled two consultative examinations of Plaintiff—he failed to appear
for both. Therefore, Plaintiff cannot claim that the ALJ failed to develop the record. See, e.g.,
Matta v. Colvin, No. 12-CV-5290, 2016 WL 524652 at *10 (S.D.N.Y. Feb. 8, 2016). (“[W]here
claimants have refused to acknowledge, attend, or cooperate at scheduled consultative
examinations or have failed to argue that they had good reasons for not attending such
examinations, courts have rejected claims that the ALJ failed to develop the record.”); Perrelli v.
Comm’r of Soc. Sec., No. 18-CV-04370, 2020 WL 2836786, *5 (E.D.N.Y. 2020) (“Courts in this
Circuit have held that where a claimant fails to appear at a scheduled consultative examination
without explanation, the ALJ has no further duty to develop the record.”).8
Thus, as Plaintiff testified that there was no missing medical evidence prior to the date last
insured, and he failed to attend the SSA’s consultative examinations, Plaintiff’s contention that the
ALJ failed to develop the record is without merit.
Examples of “good reason” for failing to participate include: (1) illness on the date of the scheduled examination;
(2) failure to receive timely notice of the examination; (3) receipt of incorrect or incomplete information about the
time, place, or physician involved with the examination; or (4) death or serious illness in the claimant’s immediate
family. 20 C.F.R. § 416.918(b).
7
8
Plaintiff claims, in his brief, that he failed to appear for both his June 2017 and July 2017 scheduled consultative
examinations because “he was not notified in advance and the notices he received did not state that they were made
at the direction of the Social Security Administration.” (Pl. Mot. at 4.) Though failure to receive timely notice of the
examination can constitute good cause for failing to participate, Plaintiff’s attempted excuse does not establish good
cause. First, Plaintiff’s statement in his brief about these notices is not admissible evidence. Plaintiff—who graduated
law school—did not submit an affidavit on this issue. Second, even if it is proper to consider the statements in
Plaintiff’s brief, they are simply too vague to constitute good cause. Plaintiff never squarely states when he received
the notices at issue. Moreover, the fact that he was sent two notices and failed to appear on both occasions also weighs
against the credibility of the vague assertions in his brief. In any event, even if Plaintiff could establish good cause
for failing to appear at his consultative examinations, as explained earlier, Plaintiff’s claim that the ALJ failed to
develop the record fails on other grounds, including Plaintiff’s failure to identify any relevant medical evidence that
the ALJ should have attempted to obtain. See Tavarez, 2012 WL 2860797, at *3.
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2. Substantial Evidence Supports the ALJ Decision
Substantial evidence supports the ALJ’s finding that Plaintiff was not disabled prior to his
last insured date.
Applying the five-step process, the ALJ found, at step one, that Plaintiff had not engaged
in substantial gainful activity since November 8, 2006. (Tr. 22.) The parties do not contest this
finding and it is supported by substantial evidence.
At step two, the ALJ found that “[t]hrough the date last insured, there were no medical
signs or laboratory findings to substantiate the existence of a medically determinable impairment.”
(Tr. 23.) Accordingly, the ALJ ended his analysis at the second step and found that Plaintiff was
not disabled. (Tr. 24.)
Specifically, ALJ Berkowitz explained that “the record is completely devoid of an[y]
evidence of an impairment or treatment prior to claimant’s date last insured of December 31,
2011.” (Tr. 23.) The ALJ’s decision references the only medical evidence in the record—the
November 2014 and December 2014 records from Stony Brook and Brookhaven, which post-date
Plaintiff’s date last insured by nearly three years. (Tr. 23, 202-06.) These records relate to an
incident on November 14, 2014 in which police officers escorted Plaintiff to Stony Brook because
he had been picking his skin until it bled. (Tr. 205.) Following Plaintiff’s discharge from Stony
Brook, he was admitted to Brookhaven on November 17, 2014, where he was diagnosed with
paranoid schizophrenia.9 (Tr. 205-06.) Though the Brookhaven treatment records mention a prior
psychiatric admission in 2004, which was two years before his November 8, 2006 alleged onset,
there was no recorded diagnosis. (Tr. 205-06, 45.)
In his motion papers, Plaintiff contends that Dr. Rathour’s diagnosis of paranoid schizophrenia “is without factual
basis” and therefore irrelevant to the disability determination. (Pl.’s Mot. at 9.) However, the ALJ’s decision denying
disability benefits did not rely on this diagnosis.
9
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Wholly lacking from the record is any medical evidence to support Plaintiff’s disability
claim from his alleged onset date of November 8, 2006 through December 31, 2011, the date his
insured status expired. As discussed above, ALJ Berkowitz’s decision acknowledges Plaintiff’s
testimony that the only medical evidence missing from the record included test results from an
EEG in 2015 and an MRI in 2016—records that post-date Plaintiff’s date last insured by four and
five years, respectively. (Tr. 23, 41-42.) Evidence of a purported disability four years after
December 31, 2011 cannot serve as the basis for a finding of disability before the end of the period
at issue because Plaintiff had to be insured when his disability began. See 20 C.F.R. § 404.131(a)
(“you must have disability insured status in the quarter in which you become disabled”); see, e.g.,
Arnone, 882 F.2d at 37-38 (“regardless of the seriousness of his present disability, unless [Plaintiff]
became disabled before, [his date last insured], he cannot be entitled to benefits.”) (citations
omitted)); Behling v. Comm’r of Soc. Sec., 369 F. App’x 292, 294 (2d Cir. 2010) (summary order)
(claimant’s current condition not relevant because she “was required to demonstrate that she was
disabled as of the date on which she was last insured” and “[a]ny new impairments are not
relevant”) (citations omitted)); Flanigan v. Colvin, 21 F. Supp. 3d 285, 302 (S.D.N.Y. 2014)
(denying benefits where “at best the evidence show[ed] that [Plaintiff] experienced progressively
worsening symptoms that eventually became disabling” after his date last insured).
Furthermore, ALJ Berkowitz’s conclusion that Plaintiff was not disabled is supported by
Plaintiff’s own statements and testimony. Plaintiff was not undergoing psychiatric treatment at
the time of the September 2017 hearing and he did not testify that he underwent any treatment
between November 2006 and December 2011. (Tr. 42.) In fact, despite a psychiatric hospital
admission in 2004, Plaintiff maintained gainful employment until the expiration of his contract
term in 2006. (Tr. 45-46.) He stated that he was having memory problems at that time but that he
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functioned well with regard to activities of daily living. (Tr. 45.) Plaintiff was able to drive and
do household cleaning and cooking but was forgetful about where he left things sometimes. (Tr.
138-41.) Thus, Plaintiff’s own statements fail to give any indication that he suffers from a “severe
impairment.”
In sum, ALJ Berkowitz’s decision at step two that Plaintiff was not entitled to DIB is
supported by substantial evidence, “or rather the absence of medical evidence during the [20062011] period in issue.” Flanigan, 21 F. Supp. 3d at 303 (“Social Security regulations require that
when there is no medically determinable impairment, that is, an impairment verified by medical
signs or laboratory findings, the application must be denied at step 2 of the sequential evaluation
process because there is no severe impairment . . .”) (citation omitted). See also Reynolds v.
Colvin, 570 F. App’x 45, 47 (2d Cir. 2014) (summary order) (holding that the “lack of supporting
evidence on a matter where the claimant bears the burden of proof, . . . can constitute substantial
evidence supporting the denial of benefits”) (citing Talavera v. Astrue, 679 F.3d 145, 153 (2d Cir.
2012)). Therefore, ALJ Berkowitz’s conclusion that Plaintiff was not disabled is supported by
substantial evidence. Accordingly, the Commissioner’s motion is GRANTED, and Plaintiff’s
motion is DENIED.
III.
CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s motion for appointment of
counsel, GRANTS Defendant’s motion for judgment on the pleadings and DENIES Plaintiff’s
cross-motion.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that, should Plaintiff seek in forma
pauperis status for the purpose of an appeal, any appeal from this order would not be taken in good
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faith and therefore - - - - - ------ status is denied. See Coppedge v. United States, 369 U.S.
in forma pauperis
438, 444-45 (1962).
The Clerk of Court is directed to close this case and mail a copy of this Order to the pro se
Plaintiff.
SO ORDERED.
Dated: March 31, 2021
Central Islip, New York
/s/ (JMA)
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE
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