Perrelli v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MADELENA PERRELLI,

Plaintiff,

MEMORANDUM AND ORDER

v.

18-cv-04370(KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Pursuant to 42 U.S.C. § 405(g), Medelena Perrelli

(“plaintiff”) appeals the final decision of the Commissioner of

Social Security (“defendant”), which found that plaintiff was

not eligible for disability insurance benefits under Title II of

the Social Security Act (“the Act”) on the basis that plaintiff

is not disabled within the meaning of the Act. Plaintiff

alleges that she is disabled under the Act and is thus entitled

to receive the aforementioned benefits.

Presently before the court are plaintiff’s motion for

judgment on the pleadings (ECF No. 13, “P’s Mem.”; see ECF No.

16, “P’s Reply”) and defendant’s cross-motion for judgment on

the pleadings (ECF No. 15, “D’s Mem.”). For the reasons stated

below, plaintiff’s motion is DENIED, and defendant’s motion is

GRANTED.

Background

I. Factual Background

On October 21, 2013, plaintiff underwent a CT-scan,

which showed multiple right lung masses that were highly

suspicious for neoplasm for metastatic disease and marked

emphysema. (ECF No. 17, Administrative Transcript (“Tr.”),

260.) On October 24, 2013, plaintiff underwent another CT-scan

from which nodules were noted on the right lung. (Id. at 246-

47.) On November 8, 2013, at the Memorial Hospital for Cancer,

Inderpal Sarkaria, M.D. treated plaintiff and suggested that she

undergo lung surgery. (Id. at 209-11, 215-17, 300-02.)

On December 20, 2013, plaintiff underwent lung

surgery. (Id. at 222.) Dr. Sarkaria completed a right

robotically assisted procedure, right thorascopy with lobectomy

total and segmental, bronchoscopy diagnostic-flexible, and PR

thorascopy with right wedge reaction. (Id. at 229.) Plaintiff

was discharged on January 2, 2014, and was encouraged to

ambulate. (Id. at 303.) On January 10, 2014, plaintiff visited

Dr. Sarkaria for a physical examination, which showed no

abnormalities. (Id. at 305.) Dr. Sarkaria assessed that

plaintiff was recovering well and was getting back to her

activities of daily living. (Id.) Dr. Sakaria also asserted

that plaintiff would likely require adjuvant chemotherapy.

(Id.)

On January 27, 2014, plaintiff was treated by Marjorie

Zauderer, M.D., a thoracic oncologist, for her follow up post

lobectomy. (Id. at 204-08.) Dr. Zauderer suggested that,

because the nodules were cancerous, plaintiff should undergo

chemotherapy. (Id. at 207.) On February 10, 2014, Dr. Zauderer

observed that plaintiff was recovering well from surgery and was

starting chemotherapy that day. (Id. at 313.) On April 21,

2014, the last day of plaintiff’s chemotherapy, she was treated

by Dr. Zauderer, who observed that she “continue[d] to recover

well.” (Id. at 310-12.) A neurological examination of

plaintiff revealed a speech impediment, a word-finding delay,

and a robotic voice. (Id. at 198, 311.)

After plaintiff’s last cycle of chemotherapy, she

reported to Nurse Practitioner Leslie Tyson at the Memorial

Hospital for Cancer that she was continuing to gain weight but

was otherwise improving. (Id. at 189.) Plaintiff’s energy was

better, and she had no postoperative pain. (Id.) Plaintiff’s

physical examination showed no abnormalities and she was

assessed as “stable.” (Id.)

On June 23, 2014, plaintiff also saw Prasad

Adusumilli, M.D., for surgery follow-up. (Id. at 306.)

Plaintiff denied shortness of breath, chest pain, or

palpitations, and reported no new onset symptomatology. (Id.)

On January 12, 2015, plaintiff was treated by Dr. Adusumilli

again, and complained of increased pain in her right arm. (Id.

at 186.) Plaintiff was fully ambulatory without any

restrictions, and her physical examination was “unremarkable.”

(Id. at 186.) Dr. Adusumilli explained to plaintiff that she

was noted to have chondroid calcifications in the right proximal

humerus and advised her to see an orthopedic surgeon to address

it. (Id.) On the same day, a chest CT-scan was performed on

plaintiff that revealed no evidence of recurrent or metastatic

disease. (Id. at 239.)

II. Application for Disability Insurance Benefits and

Administrative Hearing

On January 13, 2015, plaintiff filed an application

for Title II disability insurance benefits. (ECF No. 16-1,

Joint Statement of Facts.) The date of the alleged onset of

plaintiff’s disability was October 1, 2013, and plaintiff, who

was 49 years old at the time, claimed that she was disabled as a

result of lung cancer stage III in remission, chronic

obstructive pulmonary disease (“COPD”), partial lung removal,

inability to lift heavy objects, shortness of breath, chronic

fatigue, leg ulcer, two lesions on right shoulder causing issues

moving her arm, and a stutter. (Tr. 140-41, 155.) On April 23,

2015, plaintiff’s claim was denied. (Id. at 67-73, 78-83.) On

April 29, 2015, plaintiff requested a hearing before an

Administrative Law Judge (“ALJ”). (Id. at 23, 90-91.)1

On March 27, 2017, plaintiff appeared and testified

before ALJ Thomas Gabreel. (Id. at 32-51.) During the hearing,

plaintiff’s counsel asked the ALJ if the consultative

examinations that had been scheduled for plaintiff were still

necessary. (Id. at 35, 50.) At the end of the hearing, the ALJ

responded that the exams “wouldn’t necessarily” be required, but

that he “would advise [them] when [he] look[ed] more carefully

through the case . . . if [he] felt it was necessary.” (Id. at

50.) On April 4, 2017, the Social Security Administration sent

plaintiff and her counsel a letter advising plaintiff that two

additional consultative examinations had been scheduled, on the

afternoon of April 13, 2017. (Id. at 60-66.) The letter was

sent to plaintiff’s address in Brooklyn, New York, and to her

attorney’s address in Knoxville, Tennessee. (Id. at 60, 65.)

No evidence of plaintiff attending the scheduled consultative

examinations appears in the record.

In a decision dated May 16, 2017, the ALJ determined

that plaintiff was not disabled within the meaning of the Act

and was thereby not entitled to benefits. (Id. at 20-31.) On

1 On February 24, 2017, plaintiff underwent another CT-scan, which

showed post-surgical changes of the right lung, no evidence of

residual or recurrent lung cancer, and mild centrilobular emphysema.

(Tr. 253-55, 317.)

June 5, 2017, plaintiff appealed the ALJ’s decision to the

Appeals Council. (Id. at 4-9.) On May 31, 2018, the Appeals

Council denied review of the decision, thereby rendering the ALJ

decision the final decision in the case. (Id. at 1-6.) On

August 2, 2018, plaintiff filed the instant action in federal

court. (See ECF No. 1, Complaint.)

Legal Standard

Unsuccessful claimants for disability benefits under

the Act may bring an action in federal district court seeking

judicial review of the Social Security Commissioner’s denial of

their benefits “within sixty days after the mailing . . . of

notice of such decision or within such further time as the

Commissioner of Social Security may allow.” 42 U.S.C. §§

405(g), 1383(c)(3). A district court, reviewing the final

determination of the Commissioner, must determine whether the

correct legal standards were applied and whether substantial

evidence supports the decision. See Schaal v. Apfel, 134 F.3d

496, 504 (2d Cir. 1998).

A district court may set aside the Commissioner’s

decision only if the factual findings are not supported by

substantial evidence or if the decision is based on legal error.

Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008).

“Substantial evidence is ‘more than a mere scintilla,’” and must

be relevant evidence that a reasonable mind would accept as

adequate to support a conclusion. Halloran v. Barnhart, 362

F.3d 28, 31 (2d Cir. 2004) (citing Richardson v. Perales, 420

U.S. 389, 401 (1971)). If there is substantial evidence in the

record to support the Commissioner’s factual findings, those

findings must be upheld. 42 U.S.C § 405(g). Inquiry into legal

error “requires the court to ask whether ‘the claimant has had a

full hearing under the [Commissioner’s] regulations and in

accordance with the beneficent purposes of the [Social Security]

Act.’” Moran v Astrue, 569 F.3d 108, 112 (2d Cir. 2009). The

reviewing court does not have the authority to conduct a de novo

review and may not substitute its own judgment for that of the

ALJ, even when it might have justifiably reached a different

result. Cage v. Comm’r, 692 F.3d 118, 122 (2d Cir. 2012).

To receive disability benefits, a claimant must be

“disabled” within the meaning of the Act. See 42 U.S.C. §§

423(a), (d). A claimant meets this requirement when she is

unable 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.” Id. § 423(d)(1)(A); Shaw v. Chater, 221 F.3d 126,

131-32 (2d Cir. 2000). The impairment must be of “such

severity” that the claimant is unable to do her previous work or

engage in any other kind of substantial gainful work. 42 U.S.C.

§ 423(d)(2)(A).

Pursuant to regulations promulgated by the

Commissioner, a five-step sequential evaluation process is used

to determine whether the claimant’s conditions meet the Act’s

definition of disability. See 20 C.F.R. § 404.1520. This

process is as follows:

“[I]f the Commissioner determines (1)

that the claimant is not working, (2) that

[s]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 [her]

prior type of work, the Commissioner must find

[her] disabled if (5) there is not another

type of work the claimant can do.”

Burgess, 537 F.3d at 120 (quoting Green-Younger v. Barnhard, 335

F.3d 99, 106 (2d Cir. 2003) (alterations in original)); see also

20 C.F.R. § 404.152(a)(4). 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.

During this five-step process, the Commissioner must

consider whether “the combined effect of any such impairment

. . . would be of sufficient severity to establish eligibility

for Social Security benefits.” 20 C.F.R. § 4040.1523. Further,

if the Commissioner does not find a combination of impairments,

the combined impact of the impairments, including those that are

not severe (as defined by the regulations), will be considered

in the determination process. 20 C.F.R. § 416.945(a)(2).

In steps one through four of the sequential five-step

framework, the claimant bears the “general burden of proving

. . . disability.” Burgess, 537 F.3d at 128. At step five, the

burden shifts from the claimant to the Commissioner, requiring

that the Commissioner show that, in light of the claimant’s

residual functional capacity, age, education, and work

experience, the claimant is “able to engage in gainful

employment within the national economy.” Sobolewski v. Apfel,

985 F. Supp 300, 310 (E.D.N.Y. 1997).

“The Commissioner must consider the following in

determining a claimant’s entitlement to benefits: ‘(1) the

objective medical facts [and clinical findings]; (2) diagnoses

or medical opinions based on such facts; (3) subjective evidence

of pain or disability . . . ; and (4) the claimant’s educational

background, age, and work experience.’” Balodis v. Leavitt, 704

F. Supp. 2d 255, 262 (E.D.N.Y. 2001) (quoting Brown v. Apfel,

174 F.3d 59, 62 (2d Cir. 1999) (alterations in original)).

Discussion

Plaintiff argues that the ALJ failed to fulfill his

duty to develop the record, because there is no medical opinion

in evidence to support his residual functional capacity (“RFC”)

determination. (See P’s Mem. at 2-5.) Defendant argues that

the ALJ had no further duty to develop the record after

plaintiff did not attend scheduled consultative examinations,

and he properly considered all relevant evidence to conclude

that plaintiff could perform work available in the national

economy. (See D’s Mem. at 4-8.)

I. The ALJ’s Disability Determination

Using the five-step sequential process to determine

whether a claimant is disabled, the ALJ determined at step one

that plaintiff had not engaged in substantial gainful activity

since October 1, 2013, the alleged onset date. (Tr. 25.)

At step two, the ALJ found that plaintiff suffered

from severe impairments of lung cancer in remission after

partial lobectomy with residual and mild emphysema, and obesity.

(Id.) The ALJ considered plaintiff’s conditions of a speech

impediment, a leg ulcer, and two right shoulder lesions, finding

them to be non-severe. (Id.)

At step three, the ALJ determined that from October 1,

2013 through the date of the hearing, plaintiff did not have an

impairment (or combination of impairments) that meets or

medically equals the severity of one of the listed impairments

in 20 C.F.R Part 404, Subpart P, Appendix 1 (20 C.F.R. §§

404.1520(d), 404.1525, 404.1526), although the ALJ considered

Listing 13.14. (Tr. 26.)

At step four, the ALJ found that plaintiff had the

residual functional capacity to perform light exertional work.

(Id. at 28.) In arriving at this RFC, the ALJ stated that

plaintiff “is able to sit, stand and walk for 6 hours each,” and

“she can frequently lift and carry 10 pounds,” but did not cite

to supporting documents. (Id.)

At step five, the ALJ found that plaintiff was capable

of performing work that was available in the national economy—

specifically, her past work as the owner of a pet store. (Id.)

Thus, the ALJ concluded that plaintiff was not disabled within

the meaning of the Act, as defined in 20 C.F.R. § 416.920(g).

(Id.)

II. Development of the Record

Before determining whether defendant’s final decision

is supported by substantial evidence under 42 U.S.C. § 405(g),

“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.” Scott v. Astrue, 2010 WL 2736879, at

*12 (E.D.N.Y. July 9, 2010) (quoting Echevarria v. Sec’y of

Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)); see

also Rodriguez v. Barnhart, 2003 WL 22709204, at *3 (E.D.N.Y.

Nov 7, 2003). The spirit of the administrative review process

is beneficent, not adversarial. See 20 C.F.R. § 405.1(c)(1)

(“In making a determination or decision on your claim, we

conduct the administrative review process in a non-adversarial

manner.”); Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (“The

model is investigatory, or inquisitorial, rather than

adversarial”); Seavey v. Barnhart, 276 F.3d 1, 4 (1st Cir. 2001)

(because a hearing for disability benefits is a non-adversarial

process, “the Commissioner is not a litigant [in the matter] and

has not representative at the agency level”).

Thus, an “ALJ’s role . . . is analogous to that of a

trial judge, for whom it is clearly improper to interfere with

the questioning of a witness, particularly when it is done in a

partisan manner.” Kitt v. Comm’r of Soc. Sec., 2015 WL 4199281,

at *2 (E.D.N.Y. July 13, 2015) (quoting Fulwood v. Heckler, 594

F. Supp. 540, 547 (D.C. Cir. 1984)). An ALJ has no interest in

denying benefits and is to serve as a neutral fact-finder, not

an “advocate with a predetermined mind destined to reach a

predetermined result.” Id.; see also Richardson v. Perales, 402

U.S. 389, 410 (1971) (“The social security hearing examiner,

furthermore, does not act as counsel. He acts as an examiner

charged with developing the facts.”). The ALJ’s role confers a

duty to “affirmatively develop the record in light of the

essentially non-adversarial nature of a benefits proceeding.”

Pratts, 94 F.3d at 37 (internal quotation marks omitted). From

the duty to develop the record follows the duty to listen to

subjective complaints of disabling pain and, above all, the duty

to be fair. See Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996)

(“The ALJ should not be biased or predisposed to granting or

denying benefits, nor should the ALJ develop the record in a

manner that favors one side and disfavors the other.”).

The court finds that the ALJ provided plaintiff with a

fair hearing. It is well-established that the burden of proving

disability is on the claimant. 42 U.S.C. § 423(d)(5)(A) (“An

individual shall not be considered to be under a disability

unless he furnishes such medical and other evidence of the

existence thereof as the Commissioner of Social Security may

require.”). The ALJ notified Plaintiff and her counsel of two

consultative examinations, but plaintiff failed to attend. If a

claimant fails to attend a scheduled consultative examination

without “a good reason,” a finding of not disabled may be

rendered. 20 C.F.R. § 404.1518(a). Examples of “good reasons”

include:

(1) Illness on the fate of the scheduled examination

or test;

(2) Not receiving timely notice of the scheduled

examination or test, or receiving no notice at all;

(3) Being furnished incorrect or incomplete

information, or being given incorrect information

about the physician involved or the time or place the

examination or test, or;

(4) Having had death or serious illness occur in [the

claimant’s] immediate family.

20 C.F.R. § 404.1518(b).

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.

See Cornell v. Astrue, 764 F. Supp. 2d 381, 405 (N.D.N.Y. 2010);

Stephens v. Astrue, 2009 WL 1813258, at *8 (N.D.N.Y. June 25,

2009). In Stephens, the court rejected the plaintiff’s claim

that the ALJ failed to develop the record because there were no

consultative examinations, where one was scheduled and the

plaintiff did not argue there was good cause for failing to

attend. 2009 WL 1813258, at *8; see also Matta v. Colvin, 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.”).

Here, plaintiff alleges that the ALJ failed to

adequately inform her of the necessary consultative

examinations. (P’s Mem. at 3-4.) During the hearing,

plaintiff’s counsel asked the ALJ if consultative exams were

still necessary. (Tr. 50.) The ALJ responded that a

consultative exam may not be, but clearly stated that he “would

advise [them] when [he] look[ed] more carefully through the case

. . . if [he] felt it was necessary.” (Id.) On April 4, 2017,

the agency sent plaintiff and her counsel a letter advising her

that two additional consultative exams had been scheduled in her

case. (See id. at 60-66.) The letter stated, “[t]he above

request is made for the Administrative Law Judge” and “[i]t will

be necessary for you to be examined by the Specialist named

below . . . .” (Id. at 60.) Further, in all capital letters,

at the bottom of the first page, the letter stated:

YOU ARE EXPECTED TO MAKE AND KEEP THIS

APPOINTMENT. IF YOU FAIL TO KEEP THIS

APPOINTMENT, AND YOU DO NOT ADVISE US OF THE

REASON YOU ARE UNABLE TO APPEAR FOR THE

EXAMINATION, THE DECISION WILL BE MADE BASED

ON THE INFORMATION IN YOUR CASEL AND IT MAY BE

FOUND THAT YOU ARE NOT (OR NO LONGER) DISABLED

OR BLIND.

(Id.) This letter was sent to plaintiff’s address in Brooklyn,

New York, and to her attorney’s address in Tennessee. (Id. at

60, 65.) Plaintiff does not argue that she had “good reasons”

for missing the scheduled exams. Rather, plaintiff contends

that it “is highly possible that Plaintiff [n]ever received the

letters for an appointment scheduled for a mere nine days after

the date the letter was mailed.” (P’s Reply at 2.) Such a

possibility is not the sort of good cause that is necessary to

justify plaintiff’s failure to attend. Accordingly, plaintiff’s

claim that the ALJ failed to develop the record is without

merit.

III. Substantial Evidence Supported the ALJ’s RFC Decision

Plaintiff further argues that despite her failure to

attend the consultative examinations, the ALJ still needed to

obtain a medical opinion regarding plaintiff’s ability to

function. (P’s Mem. at 4-5.) The burden, however, was on

plaintiff to proffer medial evidence showing the existence of

her disability. 42 U.S.C. § 423(d)(5)(A) (“An individual shall

not be considered to be under a disability unless he furnishes

such medical and other evidence of the existence thereof as the

Commissioner of Social Security may require.”).

The Second Circuit has held that an ALJ’s RFC finding

does not need to perfectly correspond to any single medical

source opinion. Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir.

2013). Instead, the ALJ is able to weigh all of the evidence

from the record as a whole to make an RFC finding. (Id.) The

absence of a corresponding medical opinion does not make it so

the ALJ is relying on “lay opinion” to interpret medical data

when making an RFC finding. Johnson v. Colvin, 669 F. App’x 44,

46 (2d Cir. 2016).

Here, the ALJ determined that, based on the record as

a whole, plaintiff could perform a reduced range of light work.

(Tr. 26.) The ALJ found that “[a]lthough the claimant suffers

from obesity and fatigue, which may preclude her from performing

more strenuous work, . . . there is nothing in the record that

would prevent her from performing light exertional work.” (Id.)

This finding was based on the record, including

plaintiff’s testimony that she reported earnings during 2014 and

2015 to the IRS. (Tr. 38, 149-50.) Plaintiff alleges that the

earnings were a result of her son performing the work, though

she reported the earnings as her own. (Id.) The ALJ found that

the 2014 and 2015 reported earnings were consistent with

earnings she reported in previous years. (Id. at 27.) Further,

the ALJ concluded that there was no evidence to support

plaintiff’s assertion that her son actually performed the work.

(Id.) Plaintiff signed her name on the tax returns she

submitted to the IRS, making those earnings presumptively

correct. (Id.)

The ALJ reasonably found plaintiff’s reported earnings

in 2014 and 2015 as indicative that she was able to perform some

light work activity. (Id.) Moreover, after the lobectomy and

chemotherapy, plaintiff’s physical examination showed that “she

was fully ambulatory without any restrictions.” (Id. at 27,

186.) Accordingly, the ALJ’s RFC decision was supported by

substantial evidence when viewed in the context of the entire

record.

Conclusion

For the foregoing reasons, the Commissioner's finding

that plaintiff was not disabled as defined by the Social

Security Act was supported by substantial evidence in the

record. Accordingly, plaintiff’s Motion for Judgment on the

Pleadings is DENIED and defendant’s Cross-Motion for Judgment on

the Pleadings is GRANTED. The Clerk of Court is respectfully

directed to enter judgment in favor of defendant and close this

case.

SO ORDERED.

DATED: Brooklyn, New York

June 1, 2020

__________/s/ ____________

HON. KIYO A. MATSUMOTO

United States District Judge