Papadopoulos v. Commissioner of Social Security
Filing
27
OPINION: Accordingly, because this Court lacks subject matter jurisdiction over Plaintiff's FTCA claim, that claim is dismissed. Because Plaintiff's causes of action under the FTCA, Bivens, Section 1983, and RICO fail as a matter of law, Pl aintiffs motion for summary judgment as to those claims is denied and those claims are dismissed. The Court therefore does not reach Defendant's alternative contention that Plaintiff's non-Social Security claims should be dismissed as frivolous. For the reasons set forth above, this case is remanded for further evidentiary proceedings and Plaintiff's non-Social Security claims are dismissed.(Signed by Judge Robert W. Sweet on 11/1/2011) (djc) Modified on 11/2/2011 (djc).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
GREGORY PAPADOPOULOS,
Plaintiff,
10 Civ. 7980 (RWS)
against-
OPINION
MICHAEL J. ASTRUE,
Commissioner of social
De
-----------x
Sweet, D.J.
Plaintiff
"Plaintiff")
seeking
has
moved
Social
Commissioner,
has
Gregory
for
Papadopoulos
summary
( "Papadopoulos"
judgment
in
disability benefits.
Mi
Astrue,
("Defendant"
for
disability
review
the
benefits
Plaintiff's non-
as
Commissioner's
well
as
for
or
action
Security
"Commissioner")
decision
an
s
Social
cross petitioned both for an order dismissing
claim
t
or
order
aintiff's
denying
him
dismissing
al Security causes of act
These motions were marked fully submit
2011, and August 10, 2011, respectively.
on July 20,
For the reasons set forth below, this case is remanded
evidentiary proceedings and Plaintiff's non-Soci
Security claims are dismissed.
I. Prior Proceedings and Facts Alleged
Plaintiff earned a Master's of Business Administration
from columbia University with honors
the president and owner of a
28,
79-80,
date
financi
company.
t
Due to the dates
177.)1
the
activity,
83,
and previously worked as
that
Plaintiff
s
was
On November 24,
PI
2008,
(Tr.
2000.
fits,
was disabled due to severe
vein problems on both 1
working
in
2000
closing
of
the
Specifically,
he
due
company
all
70,
72.)
In a
form completed as
Plaintiff alleged that he
sion, high blood pressure, and
(Tr.
to
(Tr.
for
ing that he was disabled
62 71.)
part of his application
insured
ntiff protectively applied
for disability insurance benefits, all
as of January 1,
previous work
last
disability insurance benefits was June 30, 2001.
(Tr.
both
that
that
78.)
his
he
in
He stated the he stopped
medical
owned.
1998
or
condition
(Tr.
1999,
Citations to the administrative record are denoted "Tr.U
2
and
63,
the
the
78. )
Federal
ion
Bureau of Invest
that was
the end of
"[s]ince
1998,
conspirators,
(the
(Tr.
it."
and
as
I can not
"FBI")
a
"shut down my business and
178.)
Plaintiff
result
stated
harassment
by
[sic] do anything right,lI he could "only
think about getting even," and he was extremely depressed.
He also
101. )
some
leged that he had a shoulder injury.
(Tr.
(Tr.
99,
101. )
In
other
reports
to
the
Social
Security
Administration, Plaintiff indicated that he was evaluated by Dr.
Ishman in 2008 for depression and other medical conditions and
that he received treatment at Memorial Sloan-Kett
ng and Mount
Sinai Hospital in 1991 and 1995 for a non-cancerous lung tumor.
(Tr.
80 83
I
89-90.)
medical
Plaintiff affirmed that
or informat
about his conditions and that he
was not scheduled to see any medical source.
stated that he received treatment
three doctors,
(Tr.
84.)
no one else had
for depress
(Tr. 82,
90.)
in 2000
He
from
but he did not recall their names or addresses.
He further stated that one of the three doctors was a
court appointed psychiat
st who told him that he was paranoid.
Id.
3
Plaintiff's
application was
INSUFFICIENT
ASSESS
social
securi
initially denied on
basis
(medical evidence of record]
CLMT.
FUNCTIONING
PRIOR
TO
THEREFORE CLAIM DENIED AS SUCH."
On
February
9,
proceed
without
that
"THERE
IS
of
last
insurance],
(Tr. 36).
a
2010
At that hearing,
right to representation,
benefits
IN FILE TO ADEQUATELY
[date
hearing
Administrative Law Judge Mark Solomon
176-78).
disability
(the
was
held
before
(Tr.
16 34,
"ALJ")
ALJ advised Papadopoulos of his
and
aintiff stated that he wished to
(Tr.
represent at
Plaintiff
18-21.)
testified that after he started complaining about harassment by
the FBI,
2001),
five
and prior to
date he was last
he saw a psychiatrist
times
at
the
(Tr.
divorce.
demand of
(June
(the "First Psychiatrist")
his
former wife,
aintiff
24 26.)
insured
alleged
prior
that
30
I
four or
to
ir
the
rst
Psychiatrist prescribed him medication and assured him that
drugs would "make
FBI go away."
(Tr .
PI
24 - 2 5 . )
ntiff
further testified that he saw a second psychiatrist (the "Second
Psychiatrist")
(Tr. 25.)
lethargic.
names
of
who
ei
of
prescribed
medication
made
him
He reported that he did not remember the
the
two
Psychiatrists,
that one was located at Mount Sinai and the
4
though he
reported
had an office
on the southwest corner of 96th street and Park Avenue.
(Tr. 25
26. )
Plaintiff
stated that
he was
not
current
seeing a
psychiatrist or psychologist because he did not have funds
that
or
any
insurance.
(Tr.
24. )
At
that
time,
for
aintiff
stated that he had no money for psychiatric medications and that
"no medication will make the FBI go away."
The
ALJ
questioned
(Tr. 25.)
Papadopoulos
respect to the First and Second Psychiat
extensively
sts:
Q:
[W] ould you 1
me to hold
record open for
you to try to get the names of those two doctors
that you saw prior to 2001 whi
you can send to
me and then I'll try to
those records?
Unless you think they're not around anymore.
That, that's up to you.
A:
The one, I don't know if they're around anymore.
Q:
Would you like the opportunity to try to see if
you have the
A:
I can try but I don't
able to find anything.
Q:
Okay.
A:
That goes 12 years back.
Q:
-
know if
I'm going to be
Well, that's
that's okay.
1 you what I'm going to do.
5
with
A:
Q:
But I also don't,
Your Honor,
with all due
respect I don't want to stall this.
I applied
about 14 months ago, I'm eager to take this case
to the Federal Courthouse.
Eager.
Okay, So, so pretty much you say you don' t
you'd be able to get the records?
think
A:
I can try but I, I'd like to get going, you know,
with all due respect.
Q:
That's, sir, it's your case.
You know, I'm, you
know, my job is to try to help you as much as
possible by getting records I can so I can make
an informed decision.
***
Q:
Do you
sir?
have
any
questions
before
we
go
today,
A:
Do you want me to try to get those names?
Q:
Would you like, would you like to?
Well, here's
- no, tell you what.
Here better yet, I'll give
you a chance to do that.
We're going to give you
an envelope with my address on it.
I'll
give you two weeks to get the names and sent it
in and get those.
I'll try to subpoena their
records to see what they have.
If you don't get
me the names in two weeks I'll just have to go
with what I have, okay?
A:
Urn-hum.
Okay.
(Tr. 30 - 3 3 . )
Papadopoulos repeatedly attempted to persuade the ALJ
to
permit
lawsuits
him
to
against
place
the
FBI
legal
and
6
documents
other
pertaining
proceedings
to
his
into
the
record
administrat
this proposition,
(Tr.
20 21,
27,
After rejecting
31 32).
the ALJ again confirmed that he was going to
give Plaintiff an envelope with his name on it and two weeks to
submit the names of the First and Second Psychiatrists, and that
if the ALJ received those within two weeks,
he would subpoena
those records and make his decision based on that.
From
the
administrat
record,
it
does
(Tr. 32 -33. )
not
appear
that
Papadopoulos submitted the names of either Psychiatrist to
ALJ.
See Tr. 11.)
On April
(Tr.
5 15).
Appeals
20,
2010,
Thereafter,
Council,
the ALJ denied Plaintiff's claim
Plaintiff
which
affirmed
requested
the
decision
administrative law judge on August 19, 2010.
On October
action.
In
it
he
13,
2010,
seeks
of
the
as
well
1871, 42 U.S.C.
§
Act,
§§
28
Unknown
U.S.C.
as
1983
relief
under
the
filed
decision
pursuant to the Social Security Act, 42 U.S.C.
1383 (c) (3),
by
of
the
the
(Tr. 1 3.)
Papadopoulos
review
review
§
Civil
the
of
instant
the
ALJ
405(g) and/or
Rights
Act
§
of
("Section 1983"), the Federal Tort Claims
1346(b),
2671-2680
("FTCA"),
s of the Federal Bureau of Narcotics,
7
Bivens v.
Six
403 U.S. 388
(1971),
and
Racketeer
Act, 18 U.S.C.
§§
1961-1968 ("RICO").
Papadopoulos'
al
FBI
that he
ifC
affidavit
in
been the
investigation for
PIa
luenced and Corrupt Organizations
the
the Palm Beach Maf
of
his
complaint
im of harassment and a corrupt
last
thirteen
ul Family
the
support
According
Palm Beach
to
(alternately termed
), which he describes as a mafia-type Cuban
family with interests in prostitution and drug trafficking,
has
together with the FBI sought to insure that he cannot work in
hopes
of
exhausting his
alleges that
down
Revcon,
in 2000,
Inc.,
resources.
In particular,
together the FBI and Fanjul
Plaintiff's
proprietary
Plaintiff
family shut
firm,
by
ensuring Plaintiff's trades would not clear with any broker.
He
alleges that he therefore became
been able
asserts
with
that
his
example
to produce
the
preventing
to
blocking
him
income
since
and that he has not
that
time.
Plaintiff
FBI and Fanjuls have additionally interfered
attempts
by
any
sabled,
trading
from
receive
his
Soc
mail,
Security
screening
retaining
a
lawyer,
interfering with the administrative process.
8
his
benefits,
communications,
and
otherwise
In the following years,
Plaintiff has filed a
number
of actions against the FBI and Fanjuls, as well as an individual
named Mineeva,
who
Plaintiff
alleges
conspirator of the Fanjuls and FBI.
in the
Southern District
States,
08
Civ.
civ.
_I_n_v_e_s_t~",,--_i_o_n,
4579
Florida,
10
Civ.
(LAP),
(RMB)
New York,
(RLE) ,
4574
(LAP),
a
prostitute
and co
These actions include four
Papadopoulos v.
Papadopoulos v.
Papadopoulos
(LAP) ,
4882
10 Civ.
11256
of
is
v.
Federal
United
Mineeva,
10
Bureau
of
and Papadopoulos v.
Fanj ul,
as well as one in the Southern District of
Papadopoulos
v.
Federal
Bureau
of
Investigation,
01
Civ. 8659 (WPD).2
II. Plaintiff's Social Security Claims
A.
1 Standard
Title II of the Social Security Act provides for the
payment of insurance benefits to persons who have contributed to
the program and who suf
42
U.S.C.
available
Income
2
§
to
423 (a) (1).
indigent
program.
42
from a physical or mental disability.
These benefits are distinct from those
persons
under
U.S.C.
§
the
1382 (a) .
This complaint was filed on July 20, 2001.
9
Supplemental
With
Security
regard
to
establishing
disability
under
the
Social
Security
Act(
the
statute provides in relevant part:
[A]n individual shall be determined to be under a
disability
if 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.
§
In
423 (d) (2) (A).
this
respect,
a
plaintiff
demonstrating disability.
See Parker v.
230 31
The
(2d
Cir.
1980).
Act
bears
the
Harris,
defines
burden
of
626 F.2d 225(
disability
as
the
inability to engage in substantial gainful activity by reason of
a
medically
determinable
physical
or
mental
impairment
that
could be expected to result in death or that has lasted or could
be expected to last for a continuous period of at least twelve
months.
42 U.S.C.
mental
impairment"
§
423(d) (1)
as
"an
The Act defines a "physical or
impairment
anatomical ( physiological ( or psychological
that
results
from
abnormalities which
are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques."
42 U.S.C.
10
§
423 (d) (3).
The Secretary has established a
evaluation
C.F.R.
process
for
Those
404.1520.
§
evaluating
five step sequential
disability
steps are
as
claims.
See
First,
follows:
20
the
Secretary considers whether the claimant is currently engaged in
substantial gainful activi ty.
I f he is not,
considers whether the claimant has a
the Secretary next
"severe impairment" which
significantly limits his physical or mental ability to do basic
If the claimant suffers such an impairment,
work activit
the
third
which
inquiry
meets
regulations.
or
is
whether
equals
Assuming
impairment,
the
claimant's
severe
fourth
one
the
the
claimant
listed
in
claimant
inquiry
impairment,
he
capacity to perform his past work.
unable to perform his past work,
an
impairment
Appendix
does
not
the
1
have
whether,
is
has
has
a
the
listed
despite
residual
Finally,
of
the
functional
if the claimant is
the Secretary then determines
whether there is other work which the claimant could perform.
v.
curiam)
i
Schweiker,
675
F.2d
464,
467
(2d
Cir.
1982)
(per
see also Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987).3
The claimant bears the burden of proof at the first four steps,
e,
through the determination of his ability to perform his past relevant work
despite a severe impairment. The Secretary has the burden as to the last
step, i.e., the determination of the claimant's ability to perform other work
available in the national economy. See,
, 675 F.2d at
467;
638,642 (2d
Cir. 1983).
3
11
The Social Security Act provides that upon review of
the Commissioner's decision,
enter,
upon
the
pleadings
judgment affirming,
"[t] he
and
modifying,
have power to
of
the
record,
a
or reversing the decision of the
with or without remanding the
42 U.S.C.
ff
shall
transcript
Commissioner of Social Security,
cause for a rehearing.
court
405(g)
§
During judicial
review,
"the findings of the Commissioner of Social Security as
to
fact,
any
if
aside
if
(1971).
it
substantial
cir. 1996)
by
substantial
evidence,
shall
be
." Id.; see also Richardson v. Perales, 402 U.S.
conclusive.
389, 401
supported
is
The Commissioner's decision should only be set
'" based upon
evidence.'ff
legal
Pratts v.
(quoting
error or
Chater,
94
not
supported by
F.3d
34,
37
(2d
v. Schweiker, 675 F.2d at 467»
Substanti
evidence in this context has been defined
as "'more than a mere scintilla. It means such relevant evidence
as
a
reasonable
conclusion.
If'
Id.
mind
at
might
401
accept
(quoting
NLRB , 3 0 5 U. S. 197, 22 9 (193 8) ) .
substantial
evidence,
courts
as
adequate
Consolidated
to
support
Edison
Co.
a
v.
When reviewing the record for
"'review
the
record
as
a
whole.
This means that in assessing whether the evidence supporting the
Secretary's position is substantial,
we will not
look at
that
evidence in isolation but rather will view it in light of other
12
evidence
122
that
(2d Cir.
detracts
1990)
Human
Health
Moreover,
from
it. '"
son v .
(quoting
Services,
Sullivan,
New York v.
903
904
F. 2d
Secretary of
F.2d 122,
substitute
"[t] he court may not
126
(2d Cir.
1990)).
its own judgment
for
that of
Secretary, even if it might justifiably have reached
a
result
dif
949 F.2d 57,
marks
("It
59
omitted) i
is not
de
novo
review."
(2d Cir.
1991)
see
Parker v.
the
novo whether
upon a
also
function of
Jones
v.
Sullivan,
(citation and internal quotation
a
Harris,
reviewing
626
court
F.2d at
230-31
to determine de
claimant is disabled.").
B. Discussion
In
this
case,
sequential evaluat
step
one,
the
the
procedure.
ALJ
found
gainful
onset date,
through June 30,
there
were
no
substantiate
impairment
that
(Tr.
10.)
the
there were
the
Plaintiff
2001,
or
stence
the
of
relevant
period.
no medical
records
13
1520 (a) (4).
not
engaged
2000,
his
At
in
leged
the date he was last insured
At the second step,
signs
Commissioner's
§
had
activity from January 1,
medi
during
applied
See 20 C. F. R.
that
substantial
for benefits.
ALJ
a
to
the ALJ found that
laboratory
findings
medically
(Id.)
The
to
determinable
ALJ
substantiate
Plaintiff's
allegations
of
a
impairment,
impairments
combination
severe
that
i.e.,
an
his
or
limited
his
significantly
ability to perform work-related activities,
2001.
impairment
prior to June
30,
(Tr. 10-12.) The ALJ concluded that Plaintiff had not met
burden at
period at
step
issue,
two
and,
thus,
January I,
2000
was
not
disabled
through June
30,
for
2001.
the
(Tr.
12. )
An
impairment
determinable,
mental
or
and
2)
physical
is
imposes
§
§§
404.1520 (a) (4) (ii)
when
it
is
1)
medically
significant
limitations
to
ability
activities. See 20 C.F.R.
C.F.R.
"severe"
basic
perform
404.1508,
("At
the
on
the
work related
404.1521(a)i
see also 20
second step,
we consider
the medical severity of your impairment(s). If you do not have a
severe medically determinable physical or mental impairment that
meets the duration requirement
not
disabl
. ") .
Medical
. we will find that you are
evidence
is
necessary at
step
two,
which is underscored in the Commissioner's administrative ruling
SSR 85 28, which states:
A determination that an impairment(s)
is not
severe requires a careful evaluation of the
medical findings which describe the impairment(s)
and an informed judgment about
its
(their)
limiting
fects on the individual's physi
and
mental
ability(ies)
to
perform
basic
work
activities; thus, an assessment of function is
14
inherent
in
the
medical
evaluation
process
itself. At the second step of the sequential
evaluation,
then,
medical
evidence
alone
is
evaluated in order to assess the effects of the
impairment (s)
on
ability
to
do
basic
work
activities.
SSR 85-28.
In
this
case,
the
following
medical
record evidence
exists for the period prior to the alleged onset of disability,
January
Kettering
1,
2000:
Cancer
Treatment
Center
records
regarding
the
from
removal
Memorial
of
lipoma in 1992 and follow-up evaluations in 1993.
No medical
record evidence exists
for
a
Sloan
bronchial
(Tr. 112 - 3 3 . )
the period at
issue-January 1, 200 to June 30, 2001.
The
following
medical
record
evidence
exists
from
after the date of last insurance on June 30, 2001:
Treatment
notes
from
Mount
Sinai
Hospital
indicate
that Plaintiff underwent surgical treatment of a right inguinal
hernia on August 5, 2005
(Tr. 137-39) and that he underwent left
shoulder rotator cuff surgery on July 5, 2007.
15
(Tr. 135 36.)
On April
17,
2008,
Dr.
Raymond Ishman
the Ishman
Center for Age Management, noted his review of available records
and
phone
conversations
Ishman observed that
hypertension
and
Plaintiff's
past
bronchial
1 ipoma
(Id. )
Dr.
with
Plaintiff's past medi
colon
polyps
surgical
and
history
Ishman
diagnosed
and
July
examination
of
8,
the
and
he
including
two unsuccess
Plaintiff was overweight.
On
as
1 04 05.)
Dr.
history included
104),
hypertension,
osteopenia,
(Tr .
Plaintiff.
rotator
Plaintiff
identified
removal
cuff
with
hyperlipidemia,
of
a
surgeries.
andropause,
and
found
that
(Id.)
Dr.
2008,
Ishman
Plaintiff.
performed
(Tr.
105-07.)
a
physical
Papadopoulos
reported that he had been under excessive stress over the past
nine months due to a failed relationship,
(Tr. 105.)
some depression.
was
Dr.
alert
and
well-appearing,
distress.
(Id. )
testosterone,
Dr.
human
chorionic
cypionate,
Lotrel,
oriented,
and
depression,
(Tr.
gonadotropin
Wellbutrin,
106.)
(HCG) ,
aintiff
no
acute
andropause-low
bone
density,
and left ventricular
Dr.
Ishman prescribed
Arimidex,
Finasteride,
16
in
diagnosed
osteopenia low
dyslipidemia-high cholesterol,
hypertrophy-enlarged heart.
Ishman reported that
Ishman
hypertension,
and he complained of
and
testosterone
supplements.
(Tr.
106.)
Dr.
Ishman's final
note,
dated November 17,
2008,
indicates that Plaintiff dropped out of the program due to lack
(Tr. 107.)
funds.
In an undated letter to
analyst,
Dr.
the
state agency disability
Ishman wrote that he had examined Plaintiff once,
and had several phone conversations with him.
(Tr.
Ishman
which
prescribed
Wellbutrin
for
depression,
indicated he had been on in the past.
(Id.)
Dr.
that he did not see Plaintiff for depression,
the
expertise
depression
or
to
any
substantiate
other
reason,
complete any disability forms.
On
December
a
26,
claim
and
he
Plaintiff
I shman stated
he did not have
of
disability
did
not
Dr.
to
psychologist
L.
(Id.)
2008,
Meade concluded that
state
agency
there was
a
consultative
Commissioner.
2009,
psychiatric
(Tr.
154-57.)
Haruyo Fujiwaki,
evaluation
Plaintiff
(Tr.
insufficient
upon which to determine that Plaintiff was disabled.
On December 2,
for
intend
Meade completed a psychiatric review technique form.
53.)
Dr.
103.)
at
the
evidence
(Tr. 140.)
ph.D.
performed
request
reported
140
that
of
the
he
was
obliged to close his business due to a conspiracy and that he
17
saw a psychiatrist in a private office on a weekly basis for two
months
in
1998,
Papadopoulos
due
to depression.
reported
that
he
(Tr.
had
Specifically,
154. )
been
suffering
from
"psychological trauma inflicted upon him by the FBI" and that as
a result his depression had worsened.
Id.
that
had been monitoring
Plaintiff
conveyed that
the
FBI
Dr. Fujiwaki noted
his
telephone communi cat
, put cameras outside his house, tri
sabotage his business,
harassed his son, and caused the divorce
from
his
(Id. )
wi
depressive
disorder
disorder NOS i
(Tr.
157.)
that,
simple
Dr.
not
Fujiwaki
otherwise
schizophrenia,
diagnosed
specified
paranoidi
vocationally,
directions
independently,
("NOS")
Dr.
i
with
anxiety
dependence.
Fuj iwaki concluded
aintiff was able to follow and understand
and
and
Plaintiff
and alcohol
Based upon this examination,
to
instructions,
maintain
attention
perform
and
simple
tasks
concentration
to
a
certain extent; but he may have difficulty maintaining a regular
schedule,
learning
new
tasks,
making appropriate decisions,
performing
complex
tasks,
due to persecutory delusions,
and
and
may have difficulty relating with others and dealing with stress
appropriately.
(Tr.
difficulties
were
dependence.
Id.
156.)
Dr.
Fujiwaki stated that Plaintiff's
caused
by
psychotic
symptoms
and
alcohol
He further concluded that the results of the
examination appeared to be consistent with psychiatric problems
18
and
substance
abuse
problems,
and
these
may
significantly
interfere with Plaintiff's ability to function on a daily basis.
(1d. )
As
diagnoses
Defendant
and
impairment
concedes,
opinion
which
Dr.
indicate
significantly
Fujiwaki's
that
Plaintiff
limited his
basic work-related activities by that time.
examination,
had
ability
a
mental
perform
Summ.
(Def.
to
J. Mem.
13; see also Tr. 154-57.)
On the same date,
at the request of the Commissioner,
Plaintiff was examined by Dr.
physician.
(Tr.
complaint
as
161-64.)
"I
suffer
Robert Dickerson,
a
consultative
Dr. Dickerson noted Plaintiff's chief
from
a
psychological
trauma
inflicted
upon me by federal agents" as well as his history of high blood
pressure and other heart disease.
no
medical
problems
due
to
(Tr.
161.)
hypertension.
Plaintiff reported
(Id.)
Dr.
Dickerson
diagnosed Papadopoulos with depression and post-traumatic stress
syndrome,
and
concluded
that
he
had
no
physical
1 imi tations .
(Tr. 163 - 64 . )
Thus,
the record reflects a twelve-year gap in medical
treatment that encompassed the period from January 1, 2000, when
Plaintiff alleges his disability began,
19
through June 30,
2001,
when
Plaintiff
was
last
insured
for
disability
insurance
benefits.
Defendant
properly
found
determinable
10 12.)
argues
that
that
this
Plaintiff
did
not
The
Commissioner
correct
lS
at issue because
Arnone v. Bowen,
404.131
§
insured status in
There
basis
ent
his
led
to
without more, Dr.
zophrenia,
See Tr.
that
the
evidence
of
period
present
1989)
disability,
1977
benefits./I
(Tr.
NOSi
("regardless
unless
Arnone
s date last insured],
(citations
Fujiwaki's report,
disorder,
paranoid
(2d Cir.
i
omitted)).
which diagnosed
anxiety disorder,
154-57),
cannot
serve
NOSi
as
a
a disability finding before June 3D, 2001.
Instead,
are gaps
issue.
("you must have disability
882 F.2d 34,37-38
Plaintiff with depress
and
medically
the end of
(a)
became disabled before March 31,
be
a
quarter in which you become disabled")
seriousness
cannot
ALJ
iff had to be insured when his disability
See 20 C.F.R.
he
the
2001 cannot serve as the
disability
basis for a finding
the
have
impairment during the period at
iff's disability after June 30,
of
reason,
remand
is
the administrat
appropriate
record .
20
here .
" \ Where
there
. we have, on numerous
occasions,
remanded
to
the
development of the evidence.'
(quoting
Parker
original) i
1999)
gaps
the
Sobolewski,
Pratts v.
1/
Harris,
626
see also Rosa v.
(same) i
in
v.
[Commissioner]
F.2d
Callahan,
985
administrative
F.Supp.
record,
for
Chater,
at
94
39
(alteration
235)
F. 3d at
in
168 F. 3d 72,
at
314
remand
further
82
(2d Cir.
("Where there are
to
the
Commissioner
for further development of the evidence is in order.ff) .
"It is the rule
judge in a
in
trial,
light
benefits
of
our circuit that
must
'the
proceeding,'
even
Pratts v. Chater,
counsel.
Secretary of HHS,
if
F.3d 41,
168
47
F.2d 751,
F.3d
(1996).
755
770,
774
(2d Cir.
nature
a
represented
is
of
by
(quoting Echevarria v.
(2d Cir.
(2d
1982)) i
Cir.
1999) i
1999) i
see also
v.
Chater,
Perez v.
Rosa
77
The regulations describe this duty stating
we
make
a
determination
that
are
not
ed,
[and]
will make every reasonable effort to help you get medical
from
permission
to
develop your complete medical
you
di
reports
we will
79
claimant
94 F.3d at 37
685
F.3d 72,
"[b]efore
that,
non-adversarial
the
167
Callahan,
unlike a
firmatively develop the record'
essentially
11
'the ALJ,
your
own
request
the
medical
sources
reports.
The regulations also state that,
11
20
history
when
C.F.R.
you
§
give
us
404.1512(d).
"[w]hen the evidence we receive
21
from your treating physician
or other medical source is
inadequate for us to determine whether you are disabled,
[w]e will first recontact your treating physician.
medical
source to determine whether
available."
we need is readi
Defendant
notes
Papadopoulos complained to Dr.
or was the
additional
20 C.F.R.
that
there
§
is
no
evidence
(See Tr.
that
Ishman that he had been harassed
ct im of a conspi
Fuj iwaki.
information
404.1512(e).
against by the FBI
104-07), while one year later, Plaintiff voiced
to Dr.
. or other
154.)
(see Tr.
se complaints
Defendants argue that
\\ [t] his
suggests that plaintiff's impairment became severe or disabling
from 2008 to 2009,
benefits."
(Def.
several years after he was last insured for
Summ.
J.
Mem.
13.)
This
is speculation at
best, given the multi year gap in the record.
While
submit
medical
relevant
the
ALJ
evidence
period,
the
provided
of
ALJ
his
had
Plaintiff
disability
an
lop the administrative record.
further
steps
troubling in 1
to
develop
of
the
record for the relevant period,
opportunity
pertaining
affirmat
to
obligation
to
the
to
That the ALJ did not take
record
the obvious
an
here
is
in medical
particul
evidence of
Plaintiff's testimony not only
22
regarding the possibili
one
treating
medication
physician
to
"make
of relevant medical evidence including
who
the
aintiff
FBI
go
away I
testified
but
II
proscribed
also
Papadopoulos I
testimony relating to where those doctors were located,
as
the
ALJ's
clear
In
iently
Specif ically,
information,
relevant
of
the
potential
to
develop
the
to
ALJ
make
led
any
the ALJ failed
import
of
appropriate
to obtain any,
let
the
record
determination.
alone
adequate
from two possible treating psychiatrists during the
period.
Accordingly,
the
ALJ
failed
duty in Plaintiff's case.
See Pratts v.
Because
would so plainly help
"further
findingsll
proper disposition of Papadopoulos'
in this case.
as well
(Tr. 30 - 3 3 . ) 4
those records.
suff
understanding
him
claim,
Chater,
to
fulfill
his
94 F.3d at 37.
to assure
the
remand is appropriate
Id. at 39. 5
Additionally, the first of Plaintiff's many cases against the FBI was
filed in July of 2001, not long after the date of his last insurance. While
this fact is not part of the administrative record and is in any event
insufficient to demonstrate a disability, as non medical evidence from
outside of the relevant period, it underscores the need for the ALJ to
construct a full record of the relevant period in order to ensure the proper
disposition of Plaintiff's claim.
S
The Commissioner argues that remand is not appropriate in order to
consider new and material evidence on a showing of good cause.
However,
'" [tlhis is a case where the Court has found that the ALJ failed to develop a
sufficient record to determine whether there is substantial evidence to
support the denial of the plaintiff's claim of disability. It is not a case
where the Commissioner [or claimantl seeks a remand for the consideration of
new and material evidence which was omitted from the record for good cause.'ff
Rosa v. Callahan, 168 F. 3d at 83 n.8 (quoting
1998 WL
150996, *9 (S.D.N.Y. March 31, 1998)).
23
III. Plaintiff's Remaining Claims
For
the
Social Security
A.
reasons
set
forth
below,
Plaintiff's
aims are dismis
Legal Standards
ially
A
ficient
complaint may be di
ssed for
lack of subject matter jurisdiction under Rule 12 (b) (1)
asserted
basis
Patents
L. P.
367 68
(S.D.N.Y.
970
non-
F.
for
v.
Supp.
is
sdiction
Int' 1
2000)
246,
jurisdiction
j
Bus.
249
v.
(S.D.N.Y.
challenged,
Gaskill,
omitted) .
not
Machs.
Peterson v.
i
jurisdiction rests with
Thomson
is
•
sufficient.
121
I
the
ines,
Once
burden
See
F.Supp.2d
Continental
1997).
if the
subject
of
349,
Inc.,
matter
establishing
party asserting that it exists.
315
U.S.
party asserting
442,
subject
446
(1942)
matter
court
has
subject
matter
jurisdiction.
United State, 201 F.3d 110, 113
(2d Cir. 2000)
See
(citations
jurisdiction has
the burden of proving, by a preponderance of the evidence,
the
TM
See
i
Makarova
that
v.
see also Gallo
Internal Revenue Serv., 950
v. United States
24
F. Supp_ 1246, 1248
_ _ _ _ _ _ _ _L -_ _ _ _ _ _ _ _ _ _
(S.D.N.Y. 1997)
~_
,21 F.3d502, 507 (2dCir. 1994)).
In considering a
12(b) (6),
the
(citing Robinson v. Overseas
Court
motion to dismiss pursuant
construes
the
complaint
to Rule
liberally,
"accept
all factual
legations in the complaint as true, and
drawing
I
inferences
reasonable
Chambers v. Time Warner,
(citing Gregory v.
Though
the
court
complaint as true,
the
plaintiff's
Inc., 282 F.3d 147, 152
Daly,
must
in
243
F.3d
accept
687,
the
691
factual
v. Twombly, 550 U.S. 544, 555 (2007)).
must
true,
\ state
to
face. '"
contain
Iqbal,
(2d
Cir.
2001)).
a
it is "not bound to accept as true a
129 S. Ct. 1937, 1949 (2009)
complaint
(2d Cir. 2002)
allegations
conclusion couched as a factual allegation."
U. S.
II
a
suffic
(quoting Bell Atl.
To survive dismissal,
factual
claim to
f
129 S.Ct. at 1949
Ashcroft v. Iqbal,
that
matter,
is
accepted as
ausible
(quoting
"a
on
its
550 U.S. at
570). In other words, plaintiffs must allege sufficient facts to
"nudge [
plausible.
their
II
claims
~~~~,
across
the
line
from
conceivable
to
550 U.S. at 570.
In addressing the present motion, the Court is mindful
that
Papadopoulos
is proceeding
25
se.
"Since
most
pro
se
plaintiffs
lack
familiarity
[courts]
requirements,
liberally,
applying a
sufficiency
than
N.Y.,
232
F.3d
compliance
(2d Cir.
when
Bd.
(2d
Cir.
the
pleading
complaints
a
Elections
2000).
their
complaint
in City of
Courts
"interpret
st arguments that
they
v.
Coombe,
174
F.3d
276,
279
(2d
Cir.
v.
Hopkins,
14
F.3d
787,
790
(2d
Cir.
evant
2006)
se
reviewing
st
"pro se status
with
of
standard to evaluate
would
'to raise
Triestman v.
law. '"
flexible
139-40
Burgos
However,
pro
construe
~~~----------~--~
(quoting
1994)) .
formalities
Lerman v.
II
McPherson
suggest. '"
1999)
more
135,
[pro se pleadings]
must
[they]
submi t ted by counsel.
with
Fed.
rules
'does not
of
a party from
procedural
Bureau of Prisons,
(quoting Traguth v.
Zuck,
and
substantive
470 F.3d 471,
710
F.2d
90,
95
477
(2d
Cir.1983)).
B. Discussion
i. Bivens Claims
At
jurisdiction
the
over
States or FBI
action
is
the
threshold,
any
the
B
---
claim
lacks
made
subject
against
of
Social
26
Security.
matter
the
The only named defendant
in this case.
Commiss
Court
At
ted
in
s
the
same
time,
the
complaint
liberally
could
includes
be
allegations
construed
as
that
when
alleging
interpreted
that
Plaintiff's
constitutional rights were violated by the FBI.
Under the
doctrine of
sovereign immunity,
the
United
States "is immune from suit save as it consents to be sued .
and the terms of its consent to be sued in any court define that
court's
suit.
jurisdiction to entertain the
Mitchell,
445 U.S.
omitted) .
federal
535,
Accordingly,
lack
courts
538
(1980)
absent
(citation and quotation marks
a
subject
United States v.
1I
waiver of
matter
sovereign immunity,
jurisdiction
over
a
plaintiff's claims against the United States. See FDIC v. Meyer,
510
U.S.
471,
475
(1994).
Courts
may
not
find
sovereign immunity to exist unless Congress has
expressed'
States,
v.
[the
waiver]
355 F.3d 144,
Nordic
ViII
in
150
Inc.,
------------------~~-------
absence
of
such
Makarova v.
Sovereign
a
United
immunity
statutory
(2d Cir.
503
text.
2004)
U.S.
30,
33
the
court
lacks
States,
201
F.3d
110,
applies
waiver
of
"'unequivocally
Adeleke
v.
United
(quoting United States
waiver,
protection
II
a
not
(1992)).
In
jurisdiction.
113
only
(2d
the
See
Cir.
2000).
the
United
to
States per se, but also to "a federal agency or federal officers
[acting]
in
their
official
capacities.
IJ
v.
Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994).
27
Overseas
In Bivens,
403 U.S.
388,
the Supreme Court recognized
a private cause of action for damages against a federal official
his personal capacity for conduct violating the Constitution.
However, the United States has not waived its sovereign immunity
with respect to constitutional claims seeking money damages that
are brought directly against the United States.
21 F.3d at 510.
federal
In addition,
officers in the
See Robinson,
" [b]ecause an action against.
official capacities is essentially a
suit against the United States, such suits are also barred under
the
doctrine
waived."
Id.
of
sovereign
Bivens
unless
such
immunity
is
(citations omitted) .
Accordingly,
a
immunity,
to the extent that Plaintiff is asserting
claim against
the
FBI
or
the
United
States,
it
is
dismissed for lack of subject matter jurisdiction.
ii. RICO and Section 1983 Claims
Similarly, the Court lacks subject matter jurisdiction
over
Plaintiff's
RICO
and
42
U.S.C.
§
1983
claims
because
neither statute waives the Government's sovereign immunity.
28
It is well established that the United States has not
consented to suit under Section 1983.
& Surveillance
Commc'n
(S.D.N.Y.
2006).
Networks,
-----..!.--='-
409
F.
, Jones v. Nat'l
Supp.
2d
Section 1983 provides a cause
456,
466
action when
plaintiffs are deprived of constitutional rights by any person
acting
"under
color
custom,
or usage,
of
any
statute,
ordinance,
regulations,
of any State or Territory of the District of
Columbia." 42 U.S.C.
§
1983.
Federal defendants act under color
of federal law, not state law, and thus are not subject to suit
under
Section
1983.
Veterans Affairs,
properly dismissed
v.
1991)
Nghiem
323 Fed.
respect to Nghiem's
state actors,
See
§§
v.
App'x 16,
18
them because
these
Prisons,
937
lie against federal officers."
Dep't
1991)
("With
apply
only
the
United
immunity
with
respect
(citations omitted));
F.2d 26,
30
to 42 U.S.C.
n.4
§
(2d Cir.
1983 cannot
States
to
has
RICO
not
claims.
waived
See
Jones, 409 F. Supp. 2d at 466.
29
its
United
States v. Bonanno Organized Crime Family of La Cosa Nostra,
i
to
(citations omitted)).
kewise,
F.2d 20, 22-26 (2d Cir. 1989)
of
the district court
statutes
and not federal officials."
Bureau of
States
(2d Cir.
1981 and 1983 claims,
("An action brought pursuant
sovereign
United
879
Accordingly,
Plaintiff's Section 1983
and RICO claims
are dismissed.
iii. FTCA Claims
The
FTCA
provides
that
"a
suit
against
the
United
States is the exclusive remedy for a suit for damages for injury
\ resul ting
from
any employee
the
negl igent
or wrongful
F.
Supp.
2679(b) (1)
608-09
c
ing
Cir.
Hightower v.
"
2d 146,153
and
(2d
or omissions
of
the Government while acting within the scope of
his office or employment'
205
act
(S.D.N.Y.
Rivera
1991)).
v.
"The
2002)
United
FTCA
United States,
(quoting 28 U.S.C.
States,
requires
928
that
F.2d
a
§
592,
claimant
exhaust all administrative remedies before filing a complaint in
federal
Ctr.,
403
2675 (a)
the
court./I
F.3d
Celestine
76,
82
v.
(2d
Mt.
Cir.
Vernon
2005) i
see
Health
also
28
U.S.C.
§
("An action shall not be instituted upon a claim against
unless
United States
the
claimant
shall
have
first
presented the claims to the appropriate federal agency.").
The
for
claims
Social
against
Securi ty Act.
Security
the
Act
government
Section 405 (h)
precludes
arising
FTCA
under
expressly forecloses
30
jurisdiction
the
Social
FTCA claims
against
the Government
U. S. c.
under 28
1346 based upon the
§
wrongful withholding of benefits under the Social Security Act.
See 42 U.S.C.
the
§
Secretary,
405 (h)
or
("No action against
any
officer
or
the United States,
employee
thereof
shall
be
brought under section 1331 or 1346 of title 28 to recover on any
claim arising under [Title IIJU).
Moreover, even if such a claim were permissible, there
is
no
jurisdiction under
the
FTCA unless
filed an administrative claim, which
See 28 U.S.C.
§
2675(a).
Plaintiff
has
first
aintiff has failed to do.
The requirement that an administrative
claim be filed and finally denied "is jurisdictional and cannot
be waived.
u
Keene Corp. v. United States,
700 F.2d 836,
Cir.)
(citation omitted), cert. denied, 464 U.S. 864
also
See
Robinson,
Celestine,
403
21 F. 3d at
510.
F.3d
at
82
administrative claim was filed.
Further,
(1983)
(citations
Plaintiff has not
841
(2d
see
i
omitted)
alleged that
i
an
the Commissioner has
provided declarations evincing that neither the Social Security
Administration nor the FBI has been able to locate such a claim
in its
records.
See
Decl.
of Mark Ledford
Decl. of Susan Harrison 1 (Dkt. No. 23).)
31
2
(Dkt.
No.
22)
i
Accordingly,
jurisdiction
over
because
this
aintiff's
Court
FTCA
lacks
claim,
subj ect matter
that
claim
is
dismissed.
iv. Conclusion
Because Plaintif f' s
Bivens,
Section
Plaintiffs
motion
1983,
for
and
causes of action under the
RICO
summary
fail
as
a
judgment
as
to
denied and those claims are dismissed.
not
reach
Defendant's
alternative
matter
those
of
FTCA,
law,
claims
is
The Court therefore does
contention
that
Plaintiff's
non-Social Security claims should be dismissed as frivolous.
Conclusion
For the reasons set forth above, this case is remanded
for
further evidentiary proceedings and Plaintiff's
Security
aims are dismissed.
It is so ordered.
New York, NY
November / ' 2011
U.S.D.J.
32
non-Social
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