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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 ...

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