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United States District Court, Southern District of New York

June 12, 2003


The opinion of the court was delivered by: Lewis A. Kaplan, District Judge


In a report and recommendation dated March 6, 2003, Magistrate Judge Ellis recommended that the Court grant defendant's motion for judgment on the pleadings dismissing the complaint, which seeks review of a denial of plaintiff's application for disability benefits by the Appeals Council of the Social Security Administration ("SSA").

In objections filed March 20, 2003, Plaintiff challenged the report and recommendation and two principal grounds. First, she claimed that she was not "allowed the submission of additional evidence to clarify information already in the file," presumably before the ALJ. Second, she attached purported medical records and other documents to her objections which, she claims, support her disability claim. The Court thereupon remanded the matter to Judge Ellis for supplementation of the report and recommendation in two respects: (1) whether Plaintiff was precluded from offering evidence before the ALJ and, if so, what consequences should flow therefrom, and (2) whether the material attached to the objections was part of the administrative record.

By supplemental report and recommendation dated May 8, 2003, which was rendered after further briefing by the parties, Judge Ellis determined that the record did not support Plaintiff's claim that she was precluded from offering evidence before the ALJ and that the material attached to her objections was not part of the administrative record, as it all post-dated the June 3, 1998 administrative hearing. He again recommended that Plaintiff's motion be granted.

Plaintiff has filed objections to the supplemental report and recommendation. She argues that the record supports her claim that she was precluded from offering evidence and that the ALJ "intimidated" Plaintiff and her representative during two off the record conversations. Obj. to Supp. Rep. at 2. She complains at length about alleged undue delays by the SSA in processing her claim. Finally, she contends that the post-hearing evidence should be considered because it "pertains to conditions which have escalated to a more serious nature since the hearing." Id. at 4.

Alleged Exclusion of Evidence and "Intimidation"

The record does not support the contention that the ALJ excluded evidence. The only specific item Plaintiff cited in her supplemental brief to Judge Ellis is "[t]he complete Physical Therapy file of Dr. Popescu." Pl. Supp. Br. at 2. As Judge Ellis has pointed out, the record contains several reports from Dr. Popescu. Plaintiff has cited nothing in the administrative record to suggest that Dr. Popescu's "complete . . . file" was offered and rejected. Indeed, there is nothing before the Court, whether in the administrative record or otherwise, to suggest that the reports from Dr. Popescu are not themselves the "complete . . . file" save unsworn, uncorroborated assertions in plaintiff's memoranda on this motion.

Plaintiff's claim of misconduct by the ALJ during two off-the-record conversations in the course of the hearing apparently is intended to suggest that plaintiff failed to offer evidence in support of her claim because she and her representative were intimidated by the ALJ's behavior.

Plaintiff's papers nowhere identify any evidence that she failed to offer in consequence of any such intimidation. Indeed, at the conclusion of the hearing, both plaintiff and her representative indicated that they had nothing else to offer. (R85) In consequence, there is no basis for upsetting the Appeals Council decision on that ground. Bearing in mind, however, that plaintiff is proceeding pro se and is entitled to a liberal construction of her papers, the Court sua sponte considers whether alleged misconduct or bias by the ALJ affords any ground for relief.

Plaintiff unquestionably was entitled to a hearing before an unbiased ALJ. E.g., Hummel v. Heckler, 736 F.2d 91, 93 (3d Cir. 1994); 20 C.F.R. § 416.1440 (2003). She was obliged, however, to raise any claim of bias to the Appeals Council as a basis for upsetting the hearing decision. The regulation "apparently contemplates that factfinding with respect to claims of bias take place in at the agency level, and that judicial review of bias claims take place in review proceedings under section 405(g)." Hummel, 736 F.2d at 94; see 20 C.F.R. § 416.1440. "[D]istrict courts have no fact-finding role in Social Security cases." Grant v. Shalala, 989 F.2d 1332, 1339 (3d Cir. 1993) (quoting Hummel, 736 F.2d at 93 (internal quotation marks omitted)). Thus, the question for this Court is whether there is any basis in the record either for upsetting the Appeals Council decision on the ground of bias or for remanding for further fact finding on that issue.

Plaintiff, consistent with the regulation, filed a complaint of bias with the SSA in July 1998 (R6-7), after the hearing (at which plaintiff made no complaint of bias or exclusion of evidence) and after the ALJ had issued a decision adverse to plaintiff. She made the following complaints for the first time:

(a) Plaintiff asserted first that the ALJ, at the June 3, 1998 hearing, had "slighted her representative" in some unspecified way, following which plaintiff told the ALJ that the representative, plaintiff's sister, was aware of plaintiff's problems, that plaintiff was comfortable with her, and that plaintiff could not obtain legal counsel. (R7, ¶ 4) Such a discussion in fact appears in the transcript of the hearing. The transcript shows only that the ALJ made clear to plaintiff and her sister that the sister either could act as plaintiff's representative or testify as a witness, but could not do both.*fn1 The ALJ then offered plaintiff three options: (i) an adjournment to enable her to find a new representative, thus enabling the sister to be a witness, (ii) proceeding without a representative, which also would have enabled the sister to be a witness, and (iii) proceeding with the sister as representative, albeit not as a witness. (R47-49) At that point, the record reflects an off-the-record discussion following which the hearing proceeded.
(b) The second complaint was that the ALJ "did not allow [plaintiff's] representative to communicate with [her] or assist [her] in citing specific dates of appointments or events" and, in an off-the-record discussion "admonish[ed] and chastise[d plaintiff's] representative" for "prompting" plaintiff. (R7, ¶ 5) The record reflects an occasion on which plaintiff's representative interrupted plaintiff's testimony and stated "She's [i.e., the ALJ, who was questioning plaintiff] giving you the wrong dates." (R74) The transcript reflects that this interruption was following by a second off-the-record conversation.
(c) Finally, plaintiff contended that the ALJ declined to allow plaintiff's representative "to give or make any corroboratory facts or statements pertinent to [her] case." (R7, ¶ 7)
The Appeals Council considered and rejected plaintiff's contentions, holding that they did "not provide a basis for changing the Administrative Law Judge's decision." (R3)

To whatever extent plaintiff's complaint depends upon matters appearing of record, it is without merit. There is simply nothing in the record to support a claim of bias of a nature or extent to require disturbance of the Appeals Council's decision. Certainly the Appeals Council committed no error in rejecting any such aspect of the claim.

Nor, in the last analysis, was there any error in rejecting the claim insofar as it relates to matters that allegedly occurred off the record. Plaintiff was obliged by 20 C.F.R. § 416.1440 to "present [her] objections to the Appeals Council as reasons why the hearing decision should be revised or a new hearing held before another administrative law judge." Plaintiff, insofar as she might have been regarded as referring to matters that allegedly occurred off the record, said no more than that the ALJ "slighted" her representative and "admonish[ed] and chastise[d]" her for prompting plaintiff. The record demonstrates that the Appeals Council was entitled to conclude that admonition or chastisement for prompting plaintiff was within the appropriate bounds of the ALJ's discretion in view of the representative's interruption (R74), in which she told plaintiff that the testimony plaintiff had given in response to the ALJ's questions had been "wrong." And to whatever extent the language that the ALJ may have used off the record in doing so, or in saying whatever plaintiff took as a "slight," was pertinent, it was plaintiff's burden to bring that language to the attention of the Appeals Council. Instead, she confined herself to conclusory characterizations.*fn2 Certainly there is nothing here to indicate that the ALJ engaged in the sort of hectoring of plaintiff's representative that led the Third Circuit to remand on a claim of bias in Ventura v. Shalala, 55 F.3d 900, 902-05 (3d Cir. 1995). See Watson v. Massanari, No. Civ. A. 00-3621, 2001 WL 1160036, at *16-17 (E.D.Pa. Sept. 6, 2001); see also In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1316 (2d Cir. 1988). In fact, plaintiff's reply brief before Judge Ellis stated that her "claim concerning the ALJ's conduct throughout the entire administrative hearing is completely documented in the transcript of said hearing."*fn3

The Material Attached to the Objections to the Original Report and Recommendation

All of the evidence plaintiff attached to her objections to the original report and recommendation related to a period following the conclusion of the hearing. Exhibit 1 to plaintiff's objections to the first report and recommendation relates to increasing knee pain secondary to a fall in May of an unspecified year, albeit one following the hearing. Exhibits 2 and 3 relate to a November 2002 hospitalization for what plaintiff characterizes as a stroke and heart attack, but which the medical records diagnose as hypertensive urgency. Exhibit 4 is a January 2003 functional assistance assessment by HS Systems, Inc. Exhibit 5 is a letter from a physician regarding his examination of plaintiff in February 2003 which indicated an elevated systolic blood pressure, a diagnosis of "intractable GFRD," which was not further explained, and detailed new prescriptions and referrals to other physicians. Exhibits 6 and 7 are materials from a pharmacy describing the new medications.

None of this evidence was material to this case because it was not probative of her condition during the relevant period. See Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988). Certain of it addresses conditions that are not said to have existed during the period at issue before the ALJ, e.g., the fall and the incident of hypertensive urgency. Accordingly, there is no reason for a remand. See id. Evidence concerning the period subsequent to that covered by the ALJ's decision may be considered in the event plaintiff files an application for benefits for that later period.


The Court has considered all of plaintiff's objections to both reports and recommendations and finds all to be without merit. Accordingly, the motion for judgment on the pleadings dismissing the complaint is granted.


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