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September 4, 2003


The opinion of the court was delivered by: Frederic Block, District Judge


Pro se plaintiff Rafet Ahmemulic ("Ahmemulic") brings this action pursuant to 42 U.S.C. § 405(g) seeking review of the final decision of the Commissioner of Social Security ("Commissioner") denying Ahmemulic's applications for supplemental security income benefits and disability benefits. The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), contending that the Administrative Law Judge's ("ALJ") determination that Ahmemulic was not disabled within the meaning of the Social Security Act (the "Act") is supported by substantial evidence. For the reasons Page 2 set forth below, the Commissioner's motion is granted.


Ahmemulic was born in Yugoslavia in 1973 and completed the twelfth grade in that country. He came to the United States in 1992. After emigrating, he worked as a busboy in various Manhattan restaurants. Ahmemulic filed applications for supplemental security income benefits and for disability insurance benefits on January 26, 2000. He alleged that he had been unable to work since September 30, 1998 due to eye pain, back pain, depression, anxiety and auditory hallucinations, although his earnings record reflects income of $7,907 in 1999, $2,115 in 2000 and $9,870 in 2001. R. at 12.*fn1

After Ahmemulic failed to appear at his first scheduled hearing on March 6, 2001, his application was dismissed. Ahmemulic requested review of this dismissal by the Appeals Council, and on August 28, 2001, the Appeals Council vacated and remanded to afford him a further opportunity to be heard. Ahmemulic appeared, without counsel, at the new hearing date of November 21, 2001.

Ahmemulic testified at the hearing, but failed to present medical evidence. To ensure a full review of his claims, the ALJ obtained Ahmemulic's medical records, scheduled medical and psychiatric consultations, and held a supplemental hearing on May 17, 2002. Ahmemulic again testified, as did an internist and a psychiatrist, both appointed by the ALJ, who had each reviewed Ahmemulic's medical records. The Page 3 internist, Dr. Charles Plotz, testified that Ahmemulic did not have any physical limitations. The psychiatrist, Dr. Justino-Berrios, found inconsistencies in Ahmemulic's behavior and affect that suggested he was exaggerating his symptoms.

Ahmemulic's medical records revealed no colorable claim as to a physical disability, but did disclose that Ahmemulic has been diagnosed as a paranoid schizophrenic and had been hospitalized for psychiatric reasons in 1997 and 2000. Ahmemulic's testimony regarding his mental health history was fragmentary and generally non-responsive to questions posed by the ALJ. Although Ahmemulic repeatedly claimed he was completely incapacitated, his testimony revealed that he was able to maintain an apartment, keep up his physical appearance, and use public transportation.

On May 29, 2002 the ALJ judge ruled that Ahmemulic was not entitled to any benefits under the Act. On August 2, 2002 the Appeals Council denied Ahmemulic's request for review, constituting the final decision of the Commissioner. This action followed.


When reviewing a determination of the Commissioner, the Court must limit itself to deciding whether the ALJ's conclusions are "supported by substantial evidence in the record as a whole or are based on an erroneous legal standard." Beauvoir v. Chater, 104 F.3d 1432, 1433 (2nd Cir. 1997). Substantial evidence has been described by the Supreme Court as "more than a mere scintilla" and as evidence which "a reasonable mind Page 4 might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

Social Security Administration ("SSA") regulations establish a five-step process for evaluating disability claims. "In essence, if the Commissioner determines (1) that the claimant is not working, (2) that he has a `severe impairment,' (3) that the impairment is not one that conclusively requires a determination of disability, and (4) that the claimant is not capable of continuing in his prior type of work, the Commissioner must find him disabled if (5) there is not another type of work the claimant can do." Green-Younger v. Barnhart, 333 F.3d 99, 106 (2d Cir. 2003) (quoting Draegert v. Barnhart, 311 F.3d 468, 472 (2nd Cir. 2002)). The burden of proof is on the claimant for the first four steps. Id.

Despite Ahmemulic's having worked since his alleged onset date, the ALJ declined to make a definitive finding on the first step, and proceeded to evaluate Ahmemulic's claims under steps two, three and four. The ALJ found that Ahmemulic did not suffer from an impairment so severe as to preclude work activity; alternatively, that his impairment was not one of those listed by the SSA as conclusively requiring a determination of disability, and that Ahmemulic was not precluded from performing his past work as a busboy. R. at 18-19.

Substantial evidence supports the ALJ's determinations. There can be little doubt that Ahmemulic suffers from mental illness. However, the medical records, the conclusions of Dr. Plotz and Dr. Justino-Berrios and the fact that Ahmemulic has continued Page 5 to do his previous work since the alleged onset date of his disability all support the ALJ's findings. The Court further finds that the ALJ was appropriately mindful of Ahmemulic's pro se status and the corresponding "heightened duty" the ALJ owes "to scrupulously and conscientiously probe into, inquire of, and explore all the relevant facts." Cruz v. Sullivan, 912 F.2d 8, 12 (2d Cir. 1990). The ALJ fulfilled this duty by assembling Ahmemulic's medical records, appointing medical experts to consult with him, and conducting a supplemental hearing to evaluate this additional evidence.

In his affidavit in opposition to the Commissioner's motion for judgment on the pleadings, Ahmemulic makes no attempt to refute the ALJ's findings. Instead, he baldly alleges that the denial of his claim was based on racism; specifically, anti-Muslim bias on the part of the Social Security administration.*fn2 The Court has reviewed the complete record for any ...

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