United States District Court, S.D. New York
December 19, 2005.
WILLIAM F. BENSON, Plaintiff,
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.
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
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
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.
WILLIAM F. BENSON,
Plaintiff, August 21, 1979
-against- 78 CIV 2798 (LBS).
UNITED STATES OF AMERICA,
COMMISSIONERS & MEMBERS OF
THE UNITED STATES CIVIL
SERVICE COMMISSION, AND JOSEPH OPINION
A. CALIFANO, JR., SECRETARY,
UNITED STATES DEPARTMENT OF #48988
HEALTH, EDUCATION AND WELFARE,
Defendants. and BOSTON OLD
COLONY INSURANCE CO., Third Pary
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
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 §
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
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
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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