# Perrelli v. Commissioner of Social Security

> District Court, E.D. New York · June 1, 2020

URL: https://www.frixlaw.com/law-library/cases/10304342

## Case

- **Court:** District Court, E.D. New York
- **Decided:** June 1, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
MADELENA PERRELLI,

Plaintiff,
MEMORANDUM AND ORDER
v.
18-cv-04370(KAM)
COMMISSIONER OF SOCIAL SECURITY,

Defendant.
----------------------------------X
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304342. Public record. Not legal advice.