Lupe v. Shinseki

Filing 61

MEMORANDUM-DECISION AND ORDER denying 47 Motion in Limine; denying 58 Motion in Limine; denying 59 Sealed Motion: ORDERED that plaintiffs motion in limine (Dkt. No. 47) is denied with leave to renew based upon hearsay objections as discussed above; it is further ORDERED that defendants cross motion in limine (Dkt. No. 59) is denied; it is further ORDERED that defendants motion in limine (Dkt. No. 58) is denied. Signed by U.S. District Judge Mae A. D'Agostino on 2/14/13. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ANGELA LUPE,
Plaintiff,
1:10-CV-198
(MAD/ATB)

vs.
ERIC K. SHINSEKI, as Secretary of the
Department of Veterans Affairs
Defendant.
____________________________________________
O’CONNELL and ARONOWITZ
54 State Street
Albany, New York 12207-2501
Attorneys for Plaintiff

Kurt E. Brattan, Esq.

RICHARD S. HARTUNIAN
UNITED STATES ATTORNEY
218 James T. Foley U.S. Courthouse
445 Broadway
Albany, New York 12207
Attorney for Defendant

William F. Larkin, Esq.
Asst. United States Attorney

Mae A. D’Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
INTRODUCTION
The trial of this action is scheduled to commence on February 19, 2013. Presently before
the Court are the parties' motions in limine.
DISCUSSION
The purpose of a motion in limine is to allow the trial court to rule in advance of trial on
the admissibility and relevance of certain forecasted evidence. See Luce v. U.S., 469 U.S. 38, 40
n. 2 (1984); see also Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996) ("[t]he purpose of an in
limine motion is ‘to aid the trial process by enabling the Court to rule in advance of trial on the

relevance of certain forecasted evidence, as to issues that are definitely set for trial, without
lengthy argument at, or interruption of, the trial'".) "A motion in limine to preclude evidence asks
the court to make a preliminary determination on the admissibility of the evidence under Rule 104
of the Federal Rules of Evidence." Blazina v. Port Auth. of New York and New Jersey, 2008 WL
4539484, at *1 (S.D.N.Y. 2008). As the disputes regarding the admissibility of evidence are
made outside the context of the trial, the Court's rulings on the motions in limine are, "subject to
change when the case unfolds, particularly if the actual testimony differs from what was
expected". Levitant v. City of New York Human Res. Admin., 2011 WL 795050, at *1 (E.D.N.Y.
2011) (quoting Luce, 469 U.S. at 41 ("[o]wing to its preliminary nature, an in limine ruling, ‘is
subject to change when the case unfolds'".)
The Court addresses the parties' multiple requests for relief seriatim.
I.

Plaintiff’s Motion in Limine
Plaintiff seeks an order precluding defendant from introducing evidence at trial regarding

her Social Security disability determination and application. Plaintiff argues that the lack of
probative value is outweighed by the substantial prejudice. Moreover, plaintiff argues that the
evidence is not in admissible form. Plaintiff has not annexed the documents that she seeks to
preclude to the motion in limine. Moreover, plaintiff does not identify the documents in any
manner other than to state that she seeks to preclude the “Social Security disability determination
and application”. Defendant disagrees and argues that plaintiff’s application, determination and
evidence of “payments made thereunder” are admissible.
“An apparent contradiction arises when a plaintiff brings an ADA claim, asserting that he
is not too disabled to work, but also applies for SSDI benefits, stating that he is too disabled to
work.” E.E.O.C. v. Burlington Northern & Santa Fe Ry. Co., 621 F.Supp.2d 587, 598
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(W.D.Tenn. 2009). The Supreme Court addressed the effect of receipt of SSDI benefits on an
ADA claim in Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999) and held that “pursuit,
and receipt, of SSDI benefits does not automatically estop the recipient from pursuing an ADA
claim”:
Nonetheless, an ADA plaintiff cannot simply ignore her SSDI
contention that she was too disabled to work. To survive a defendant's
motion for summary judgment, she must explain why that SSDI
contention is consistent with her ADA claim that she could “perform
the essential functions” of her previous job, at least with “reasonable
accommodation.”
Id. at 797–98.
When faced with a plaintiff's previous sworn statement asserting “total
disability” or the like, the court should require an explanation of any
apparent inconsistency with the necessary elements of an ADA claim.
To defeat summary judgment, that explanation must be sufficient to
warrant a reasonable juror's concluding that, assuming the truth of, or
the plaintiff's good faith belief in, the earlier statement, the plaintiff
could nonetheless “perform the essential functions” or her job, with or
without “reasonable accommodation.”
Id. at 807.
An employee's application for or receipt of Social Security disability benefits does not
necessarily bar an individual with a disability from claiming, in an action under the ADA, that she
can perform the essential functions of the job. Pender v. Dist. Council 37 of Am. Fed. of State,
County and Mun. Emp., 223 F.Supp.2d 534, 543 (S.D.N.Y. 2002) (citing Cleveland, 526 U.S. at
805-07). “[T]he plaintiff must offer some explanation for the inconsistency. The explanation
must be sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or the
plaintiff's good faith belief in [the statement to the Social Security Administration], the plaintiff
could nonetheless ‘perform the essential functions' of her job, with or without ‘reasonable
accommodation.’” Id. (citing DiSanto v. McGraw-Hill, Inc., 220 F.3d 61, 64 (2d Cir. 2000)
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(internal quotations omitted)). Absent a sufficient explanation, an ADA plaintiff's sworn
assertion in an application for disability benefits will negate an essential element of the plaintiff's
ADA claim. E.E.O.C., 621 F.Supp.2d at 598.
In the prior Memorandum-Decision and Order, this Court discussed the differences
between the Social Security Act and the ADA:
Under the Social Security Act, a claimant is disabled if she has an
“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.” Mitchell v.
Washingtonville Cent. Sch. Dist., 992 F.Supp. 395, 405 -406
(S.D.N.Y. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). "Unlike the ADA,
the Social Security Act does not address the effect of reasonable
accommodation on the individual's claim." Id.
The Court also addressed Cleveland and concluded:
“[T]he Supreme Court has held that the pursuit and receipt of Social
Security disability benefits, without more, neither estops the recipient
from pursuing an ADA claim nor creates any special presumption
against the recipient showing, for purposes of an ADA action, that
with reasonable accommodation he or she could perform the essential
functions of the job.” Mitchell v. Washingtonville Cent. Sch. Dist.,
190 F.3d 1, 6 -7 (2d Cir. 1999) (citing Cleveland v. Policy Mgmt. Sys.
Corp., 526 U.S. 795 (1999)); see also Bohen, 2009 WL 791356, at *9
(citation omitted) (the receipt of Worker's Compensation Benefits and
Social Security Disability Benefits “does not automatically bar a claim
[. . . ]”). However, “[a] plaintiff who is receiving disability benefits
must proffer a ‘sufficient explanation’ for why she asserted total
disability in the agency proceeding while maintaining that she was a
‘qualified individual with a disability’ in the ADA action.” Bohen,
2009 WL 791356, at *9. “To defeat summary judgment, that
explanation must be sufficient to warrant a reasonable juror to
conclude that, assuming the truth of, or the plaintiff's good faith belief
in, the earlier statement, the plaintiff could nonetheless perform the
essential functions of her job, with or without reasonable
accommodation.” Id. (citing Nodelman v. Gruner & Jahr USA Pub.,
2000 WL 502858, at *8 (S.D.N.Y. 2000) (internal citations omitted)).

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Here, a central issue in this case is whether plaintiff could perform the essential functions
of her job. Therefore, the probative value of plaintiff’s application outweighs its potentially
prejudicial effects. See Hubbard v. Detroit Pub. Sch., 372 F. App’x 631, 635 (6th Cir. 2010) (the
evidence may weaken her case but does not make it impermissibly prejudicial, much less require
its exclusion). Here, a jury should determine whether plaintiff’s statement to the SSA claiming
total disability should preclude the instant ADA claims. See Felix v. New York City Transit Auth.,
154 F.Supp.2d 640, 652 (S.D.N.Y. 2001); see also Bever v. Titan Wheel Int’l, Inc., 6 F. App’x
401, 407 (7th Cir. 2001) (the disability benefit applications to SSA were admissible but plaintiff
was required to explain why the application was not inconsistent with the ADA claim).
Defendant argues that plaintiff has not “offered the required ‘sufficient explanation’ of the
inconsistent positions taken in her claim for disability benefits and her ADA lawsuit” and as a
result, she is now estopped from claiming that she was capable of performing the essential
functions of her position as of June 3, 2009 to the present.1 Defendant’s cross motion is an
improper and untimely attempt to re-argue issues previously addressed and resolved on the
motion for summary judgment. Plaintiff is not judicially estopped from claiming that she was
qualified for her position, despite her representations to the SSA. See Nodelman v. Gruner &
Jahr USA Pub., 2000 WL 502858, at *8 (S.D.N.Y. 2000); see also Disanto v. McGraw-Hill, Inc.,
1998 WL 474136, at *4-5 (S.D.N.Y. 1998) (citations omitted) (whether a plaintiff’s statements to
SSA are inconsistent with plaintiff’s claim that he can work with reasonable accommodation is an
issue of fact for the jury to resolve). “The application for disability benefits would, however,
constitute relevant evidence in evaluation an ADA claim”. Disanto,1998 WL 474136, at *4-5

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Defendant asserts this argument in a “cross motion” filed on February 11, 2013. (Dkt. No. 59).
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(citations omitted). Plaintiff is not barred from pursuing her ADA claim, however, the SSA
application is relevant evidence at trial. Id.
The Court has reviewed the caselaw cited by plaintiff and finds the holdings inapplicable
and unpersuasive. Those decisions involved motions by the defense to preclude the plaintiff from
introducing the SSA disability determinations as evidence that the plaintiff was found to be
disabled by the SSA. See Rafferty v. Erhard, 2012 WL 3518565, at *2 (W.D.N.Y.,2012); Chavez
v. Waterford Sch. Dist., 2011 WL 887784, at *3 (E.D. Mich. 2011) (the Court held that the long
term disability applications were admissible but that the plaintiff could not introduce evidence of
the disability determination to establish that she was a qualified individual with a disability who
cannot perform the essential functions of the employment position that she held); Morse v.
Jimenez, 2004 WL 1211958, at *1 (E.D.Pa. 2004) (the plaintiff withdrew claims relating to his
client's mental health and thus, the Court would not permit evidence regarding the plaintiff’s
Social Security application and benefits as they were irrelevant to the proceeding).
Accordingly, plaintiff’s objection to the evidence based upon Rule 403 is denied.
However, the Court cannot conclude it’s inquire there. In addition to Rule 403, plaintiff has
objected to the admissibility of this evidence based upon hearsay. Plaintiff claims that she did
not execute any document regarding her ability to work. This Court briefly addressed this issue
in the prior Memorandum-Decision and Order:
In this matter, plaintiff does not dispute that she received social
security benefits but claims that while the SSA determined that she
was “disabled as of June 1, 2009", she never made any statement to
the SSA regarding her ability to perform her job at VISN2. Plaintiff
claims that the document, upon which defendant relies, was prepared
by the SSA and that it is not her own sworn statement. The Court has
reviewed the document and the other documents relating to plaintiff’s
social security benefits and finds that the record does not contain any
sworn statement from plaintiff, document executed by plaintiff or any
administrative hearing transcripts. There is no evidence establishing
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that plaintiff claimed or represented to SSA that she was totally
disabled as of June 1, 2009 and unable to perform her job at VISN2
without reasonable accommodations. See Marvello v. Chemical Bank,
923 F.Supp. 487, 491 (S.D.N.Y. 1996) (the Court has no evidence as
to what statement the plaintiff might have made to the Social Security
Administration about his condition). Without any such admissions,
the Court cannot conclude as a matter of law that plaintiff was unable
to perform the essential functions of her job at VISN2 solely because
she pursed social security benefits. See Fussell v. Georgia Ports
Auth., 906 F.Supp. 1561, 1575–76 (S.D.Ga.1995) (while “there is
every reasonable inference” that plaintiff swore to being totally
disabled “given the working framework of the SSI program,” since
there was no direct evidence in the record that plaintiff swore to
disability, summary judgment denied); see also Mohamed v. Marriott
Int’l, Inc., 944 F.Supp. 277, 283 (S.D.N.Y. 1996) (“[i]n light of th[e]
differing legal standards, [the plaintiff’s] assertion of inability to work
for SSDI purposes is not necessarily inconsistent with his claim of
being capable of performing the essential functions of the job from
which he was discharged”); cf. DeRosa v. Nat’l Envelope Corp., 595
F.3d 99, 105 (2d Cir. 2010) (the record is clear that the plaintiff had
physical limitations, and that he felt he needed to work from home and
therefore, “it is hardly surprising that he said on the disability
application forms that he was disabled or unable to grab, reach, or
commute”).
In the Hubbard case, the district court permitted the defendant to introduce the plaintiff’s
benefits application because the plaintiff stated on that application that she was “unable to work”.
On appeal, the Court held that district court permissibly treated that sworn statement as a party
admission. Hubbard, 372 F. App’x at 635. Here, assuming defendant can establish a sufficient
foundation, the SSA application or other SSA record may be admissible as an admission of a
party opponent. Fed.R.Evid. 801(d)(2); see Rooney v. Sprague Energy Corp., 519 F.Supp.2d 110,
119 (D. Me. 2007) (the function report is the plaintiff’s own detailed description of what he can
and cannot do physically). However, if defendant cannot show that plaintiff made statements to
the SSA that were clearly inconsistent with her position in this case, the evidence will not be
admissible. See Schneider v. Landvest Corp., 2006 WL 322590, 33 (D.Colo. 2006) (“[t]here is no
evidence in the record as to what representations [the plaintiff] actually made to the SSA, and/or
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whether she was properly working as part of a trial work period that would have been proper in
connection with her Social Security Disability benefits”). Accordingly, defendant will be
permitted to introduce evidence regarding plaintiff’s social security application, subject to
hearsay objections. In opposition to plaintiff’s motion in limine, defendant details how computer
generated forms were prepared based upon “information provided by plaintiff” that “summarized
plaintiff’s application”. See Dkt. No. 59, at p. 2 - 4. Defendant annexed several SSA documents
claiming that, “there is no doubt that plaintiff signed her Social Security Disability Benefit
application under penalty of perjury”. At this juncture, outside the context of trial, the Court
takes no position on the admissibility of any documents annexed to defendant’s submission.
Defendant is cautioned that such evidence must be in proper admissible form and authenticated
and that counsel’s assertions regarding the social security application process will not suffice at
the time of trial. Plaintiff is not precluded from making hearsay objections at the appropriate time
during trial.
II.

Defendant’s Motions in Limine
On February 11, 2013, defendant filed a motion in limine seeking to preclude testimony

from witnesses not listed on plaintiff’s initial disclosures and to preclude the testimony of certain
witnesses who were not properly identified as treating physicians. (Dkt. No. 58). On November
2, 2012, this Court issued a Jury Trial Notice. (Dkt. No. 33). The Order provides:
(J) MOTIONS IN LIMINE: Two weeks before the trial date, counsel
shall electronically file and serve any motions in limine, citing the
applicable rules of evidence and case law. Counsel shall file any
response to a motion in limine no later than one week before the trial
date. Dates for such filings are provided on page 1 of this notice.
MOTIONS IN LIMINE MAY NOT OTHERWISE BE FILED
WITHOUT LEAVE OF THE COURT. Note: Motions to preclude
expert testimony must be filed on or before the dispositive motion
filing deadline (see paragraph 6(A)(5)).
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According to the Order, motions in limine were due on February 5, 2013 and responses
thereto on February 11, 2013. Defendant did not seek leave of court to file the motion on
February 11, 2013. Moreover, defendant provided no explanation for the delay in filing.
Accordingly, defendant’s motion in limine is denied as untimely. However, defendant will be
permitted to raise any objection to witnesses or testimony at the time of trial. This court’s order
does not preclude defendant from asserting the arguments herein at the time of trial.
CONCLUSION
It is hereby
ORDERED that plaintiff’s motion in limine (Dkt. No. 47) is denied with leave to renew
based upon hearsay objections as discussed above; it is further
ORDERED that defendant’s cross motion in limine (Dkt. No. 59) is denied; it is further
ORDERED that defendant’s motion in limine (Dkt. No. 58) is denied.
IT IS SO ORDERED.
Dated: February 14, 2013
Albany, New York

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