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United States District Court, S.D. New York

December 19, 2005.

JO ANNE BARNHART, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge


Plaintiff William Benson, appearing pro se, appeals from a final decision by the Commissioner of Social Security denying him disability insurance benefits for the period from November 1, 1976 through February 3, 1987. Plaintiff started to receive benefits in 1987, but the present case relates to the earlier period for reasons which will be described.

  Plaintiff claims in his present case that (1) the ALJ failed to adequately develop the record and (2) the ALJ's decision is not supported by substantial evidence. Defendant Commissioner moves for a judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), arguing that the record was adequately developed and that the denial was supported by substantial evidence. Plaintiff pro se opposes defendant's motion and moves for an order "granting a trial on the merits." Plaintiff has also made a motion for "dismissal of defense." Defendant's motion for judgment on the pleadings is denied. Plaintiff's application for an order granting a trial on the merits is denied, as is his application to dismiss the defense.

  Procedural History

  In 1999, plaintiff requested reconsideration of the denial of his application for disability insurance benefits between 1976 and 1987 pursuant to the order in Dixon v. Sullivan, 54 F.3d 1019 (2d Cir. 1995). Under Dixon, claimants whose applications for benefits were denied because their impairments were found to be not severe were given an opportunity to have their applications reconsidered. On June 5, 2000 the Regional Commissioner of the Social Security Administration informed plaintiff that, upon reconsideration, his condition was not severe enough to be considered disabling. On June 6, 2000 plaintiff requested a hearing before an Administrative Law Judge.

  Plaintiff alleged that he received treatment during the time period at issue at the Dover Christian Nursing Home and Dover General Hospital. The ALJ sent subpoenas seeking plaintiff's medical records to the Dover Christian Nursing Home and St. Clair's Hospital, formerly Dover General Hospital. The responses to these subpoenas indicated that all the records were either destroyed or otherwise unavailable. The ALJ stated that he found the hospitals' responses to be credible. Plaintiff alleged that his old Social Security claims file, including relevant medical records, was stolen in 1977 by Frank Smith, a regional attorney in the Department of Health and Human Services, and destroyed in 1983 by Annette Blum, another regional attorney. The ALJ refused to inquire into these allegations on the ground that there was no evidence to support plaintiff's claim.

  Plaintiff also requested that the ALJ issue subpoenas to certain Government agencies, including the office of the Secretary of Health and Human Services. The ALJ refused to issue any such subpoenas because plaintiff produced no evidence to suggest that these other agencies possessed any relevant records.

  Finally, plaintiff requested that the records of a 1978 employment case brought in federal court by plaintiff against his former employer be admitted into evidence. Plaintiff alleged that the records of the 1978 case contained evidence of his disability. The ALJ denied that request on the grounds that it was not relevant to the question of whether plaintiff was disabled between 1976 and 1987.

  A hearing was held on March 21, 2002. On August 14, 2002 the ALJ issued a decision which found that the plaintiff was not disabled during the period at issue. The ALJ determined that the available medical evidence failed to show a medically determinable severe impairment for any continuous 12-month period during the period at issue. On November 29, 2002 the Appeals Council denied plaintiff's request to review the ALJ's decision. The Appeals Council found no basis for granting plaintiff's request for review and held that the ALJ's decision should stand as the final decision of the Commissioner.

  On February 3, 2003 plaintiff filed this action seeking review of the ALJ's decision pursuant to 42 U.S.C. § 405(g).


  When reviewing a decision denying benefits under the Social Security Act, this court must first satisfy itself that the claimant has had a full and proper hearing. Echevarria v. Sec'y of Health and Human Services, 685 F.2d 751, 755 (2d Cir. 1982). Since the benefits proceeding is essentially non-adversarial, the ALJ has a duty to affirmatively develop the record. Where, as here, the claimant was unrepresented by counsel, the ALJ was under a heightened duty to scrupulously and conscientiously probe into and develop all the relevant facts. Id.

  Furthermore, this is a most unusual Social Security case. A 1995 Court of Appeals decision in another case apparently opened up the possibility of plaintiff claiming benefits for a period starting almost twenty years earlier. Plaintiff is trying to prove that the same disability he currently suffers from — Meneire's disease — has afflicted him for nearly thirty years. But medical records normally relied on have been destroyed. Thus, plaintiff has unusual difficulties in proof regarding a claim he is legally entitled to pursue. It has been plain from the outset of this case that there would be no purpose in remanding the matter to the agency for the purpose of inquiring further about hospital and nursing home records or about possible records in the hands of Government agencies. Also, the ALJ was certainly within bounds in refusing to investigate the allegation of stolen records.

  However, plaintiff has been particularly emphatic with this court in asserting that a doctor in New Jersey has information related to plaintiff's claims. In view of the unusual circumstances of this case, the court communicated with that doctor and was informed that he can provide no such information. Plaintiff has made no effort to have any formal process served on that doctor.

  This leaves plaintiff's contention that the ALJ was in error in failing to obtain records from the 1978 court case. What this refers to is an action brought by plaintiff in 1978 in the Southern District of New York against the Department of Health, Education and Welfare and other defendants. William F. Benson v. United States of America, et al (78 Civ. 2798). In this action, plaintiff claimed that he was wrongfully terminated from his employment with the HEW. He claimed that is termination was the result of discrimination on the basis of race, religion, national origin, age, and physical handicap. In an opinion dated August 21, 1979 Judge Sand granted the defense motion for summary judgment and dismissed the case. For present purposes, the only point in Judge Sand's opinion to be noted relates to the claim about a handicap. As the judge's opinion described it, plaintiff's argument was that, as a result of an accident in December 1975, he was hospitalized and unable to return to work until January 1977, and that even then he was not able to stay at work and took further leave. Judge Sand held:

Even if we were to assume that plaintiff at all relevant times suffered from a physical handicap and further that this condition in fat prevented him from performing his duties, he has suffered no discrimination on account of it. A handicapped employee suffers discrimination on that basis only if he is otherwise qualified to perform his duties. Excessive absence from work, like excessive tardiness or poor job performance, are acceptable non-discriminatory reasons for termination.
  What occurred is that Judge Sand accepted plaintiff's factual claim about the handicap issue and dismissed it as a matter of law. There is no indication that any medical evidence or any other evidence about the alleged handicap was put into the record or presented to Judge Sand. A copy of Judge Sand's opinion and the docket sheet in the case has been made a part of the record on the present Social Security appeal.

  Under the circumstances, there would be no utility in remanding plaintiff's social security claim to the agency for exploration of the record in the 1978 lawsuit. It appears clear that no evidence relevant to plaintiff's social security claim resides in the record of that case. This court concludes that the ALJ was correct in finding that there is no evidence supporting plaintiff's claim of disability during years 1976 until 1987. The ALJ had no choice but to make this finding, since the evidence does not exist.


  Defendant's motion for judgment on the pleadings is granted. Plaintiff's applications for a trial on the merits and to dismiss the defense in the case are denied.

  SO ORDERED. United States District Court Southern District New York.


Plaintiff, August 21, 1979
-against- 78 CIV 2798 (LBS).


 William Greenberg, William F. Benson, Bklyn, N.Y., U.S. Atty. SDNY(Janis P. Farrell), Frank B. Gass, Donald L. Cox, Deputy General Counsel, Merit Systems Protection Board.

 LEONARD SAND, Senior District Judge

  This action is brought for judicial review of plaintiff's claims of "wrongful termination" in connection with his discharge from employment as an Auditor Trainee with the Department of Health, Education and Welfare ("HEW"). The complaint alleges jurisdiction "under applicable provisions of the Administrative Procedure Act and under other applicable provisions of the laws of the United States." Inasmuch as plaintiff is presently proceeding pro se in this action, we construe these allegations liberally.*fn1

  As an initial matter, we find that plaintiff was a probationary employee at the time of his termination. A federal employee is on probationary status for the first year of his service, 5 C.R.F. § 315.801, and periods of leave without pay are not counted towards the probationary period beyond the first 22 work days on leave.[fn1a] From the record before us, we find that plaintiff served 10 months and 2 days on pay status.

  A probationary employee may appeal his termination solely on grounds of discrimination. In seeking judicial review of his termination, plaintiff's sole remedy in this Court is under Section 717 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16. Brown v. General Services Admn., 425 U.S. 820 (1976), and we consequently deem his complaint to be brought pursuant to that statutory authority. The parties have filed cross-motions for summary judgment.*fn2 Defendant concedes that plaintiff has met the exhaustion requirement of § 717(c).*fn3

  We turn therefore to the merits of plaintiff's complaint, Plaintiff was employed as an Auditor Trainee on August 17, 1975. On December 6, 1975, he was injured in an automobile accident and was on leave without pay from January 6, 1976 through January 10, 1977. On May 11, 1977, he was notified by the Regional Audit Director that his employment was to be terminated, effective June 3, 1977, for reasons of unsatisfactory work performance, tardiness and unsatisfactory attendance, and uncooperative attitude.

  Plaintiff claims that he "was wrongfully terminated from his position as Auditor Trainee" and seeks reinstatement and back pay. The complaint does not further elaborate upon his claim. In his voluminous papers submitted in support of his motion for summary judgment, however, plaintiff alleges that his termination was the result of discrimination on the basis of race, religion, national origin, age, and physical handicap. As to the first three of these grounds, plaintiff claims to have suffered reverse discrimination.

  With respect to plaintiff's first three grounds of claimed discrimination — reverse discrimination on the basis of his race, religion, and national origin — plaintiff has submitted no evidence upon which such claims might be supported. Indeed, he has failed even to identify his own race, religion, and national origin. In support of his claim of discrimination on the basis of his religion, plaintiff asserts that the Audit Agency had established "a quota of 80% or more of Jewish membership or Auditors". Plaintiff provides that no further explanation of this assertion or how it might support his claim of religious discrimination. In sum, we find that plaintiff has failed to meet the burden of F.R.Civ. P. 56(e) that when faced with a motion for summary judgment, the adverse party must "set forth specific facts showing that there is a genuine issue for trial". As to these grounds of discrimination, therefore, defendant's motion for summary judgment is granted.

  Plaintiff similarly has failed to demonstrate a basis for his claim of discrimination on the basis of a physical handicap. Plaintiff has in the first place failed to allege in what way he falls within the definition of a "handicapped person"; nor is this matter discernible from the record. Plaintiff's argument appears to be that as a result of his accident in December, 1975, he was hospitalized and was unable to return to work until January, 1977; that even as of January, 1977, he was not in fact well enough to return to work and did so only in response to pressure from his supervisors that as a result of his premature return to work, he was unable to remain at work full-time and was forced to take further leave; and therefore that his termination — based in part on his poor attendance record — was a result of discrimination based on "physical handicap".*fn2 Even if we were to assume that plaintiff at all relevant times suffered from a physical handicap and further that this condition in fact prevented him from performing his duties, he has suffered no discrimination on account of it. A handicapped employee suffers discrimination on that basis only if he is otherwise qualified to perform his duties. Excessive absence from work, like excessive tardiness or poor job performance, are acceptable non-discriminatory reasons for termination.*fn3 See Ulmer v. New York Telephone Co., 181 N.Y.L.J. No. 21, p. 4; 19 Emp. Prac. Dec. ¶ 9084 (Sup.Ct. N.Y.Cty, Jan. 30, 1979).

  Plaintiff's claim of age discrimination rests on his allegation that "the younger Auditors did not want to work with the older Auditor-Trainee". Although plaintiff has failed to allege his age, various medical records attached to plaintiff's motion papers indicate that he was 54 years of age in October, 1976. Plaintiff therefore is within the class of persons protected against age discrimination.*fn4 Nevertheless, plaintiff has submitted no support whatsoever for his allegation of discrimination. Pursuant to Rule 56(e), he must set forth specific facts showing that there is a genuine issue for trial. In the absence of such facts, we grant defendant's motion to dismiss.

  We turn next to plaintiff's purported joinder*fn5 of the Boston Old Colony Insurance Company ("Boston") as a party defendant. Boston is the insurance carrier of the driver in the plaintiff was struck in December, 1975. Plaintiff apparently, seeks to recover against Boston insurance benefits under the New York State no-fault insurance law.

  Defendant Boston has moved to dismiss the complaint on grounds, inter alia, of improper service, lack of subject matter jurisdiction, and failure to state a cause of action. The motion is granted. Plaintiff purported to serve his complaint plaint on Boston by personally delivering the complaint, without a summons, to an Assistant Vice President of the defendant. Such service is, of course, improper. F.R.Civ.P. 4(a), (b), (c).

  Were that the sole ground for dismissal, we would grant defendant's motion without prejudice in order that plaintiff might have an opportunity to serve the complaint properly. Boston, however, is not a proper party in this action. Although HEW had already answered the complaint at the time he attempted to serve Boston, plaintiff never sought the permission of the Court to add an additional defendant as required by the Federal Rules. Plaintiff attempted to circumvent this requirement by serving Boston with an entirely new complaint which does not incorporate the allegations made in his complaint against HEW.

  Having now reviewed the two complaints in this action this Court concludes that had plaintiff sought permission to join Boston, such permission would not have been granted. Plaintiff's claim against HEW is for job discrimination. In his complaint claim against Boston, plaintiff seeks "no fault benefits". Thus, there are no common questions of law or facts as required by F.R.Civ.P. 20 for permissive joinder of parties.

  In summary, plaintiff's complaint against the Secretary of HEW is dismissed on the merits and the Secretary's motion for summary judgment is granted. Defendant Boston Old Colony Insurance Company is dismissed for improper service and joinder.



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