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Robert E. Judge v. Michael Astrue

May 10, 2011

ROBERT E. JUDGE, PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM & ORDER

Pending before the Court are a motion for judgment on the pleadings (Docket Entry 13) filed by pro se plaintiff Robert E. Judge ("Plaintiff" or "Judge") and a cross-motion for judgment on the pleadings seeking remand of this action for further proceedings before an Administrative Law Judge ("ALJ") filed by defendant Michael J. Astrue, Commissioner of Social Security ("SSA") (Docket Entry 17). For the reasons outlined below, Plaintiff's motion is DENIED, Defendant's GRANTED. Consequently, all other pending motions are DENIED AS MOOT.

BACKGROUND

On April 12, 2005, Plaintiff filed a claim, pursuant to 42 U.S.C. § 402(d)(1), for disabled adult child's benefits based on the earnings of his father, who died on March 28, 1983. (R.*fn1 181-83.) Under § 402(d)(1), an individual may be entitled to disabled adult child's benefits based on the record earnings of an insured deceased person if: (i) the claimant is eighteen years of age or older; and (ii) suffers from a disability that began before he attained twenty-two years of age. Born on January 25, 1955, Plaintiff claimed that he had been disabled since January 5, 1975.

(R. 182.)

After a hearing in August 2005, the ALJ issued a decision dated September 19, 2005 denying Plaintiff's application by operation of the res judicata rule; the judge decided that the application sought the same benefits as Plaintiff's previous application denied on September 14, 1995, which was never appealed and therefore final. (R. 134-38.) Plaintiff's request for review of the September 19 decision was subsequently denied by the Appeals Council.

Plaintiff next filed an action in the United States District Court for the Eastern District of New York (05-CV-5160) (Spatt, J.). (R. 11.) On September 6, 2007, Judge Spatt remanded the case to the Defendant for additional proceedings, pursuant to the fourth sentence of 42 U.S.C. § 405(g), when it became apparent that the SSA could not locate copies of the September 14, 1995 decision denying Plaintiff's disabled adult child's benefit application (on which the res judicata ruling was predicated); and the notices advising him of that decision, of his right to appeal, and of consequences from failing to appeal. Nor could the Defendant otherwise prove they were sent. (R. 173-76.)

Following remand, on June 10, 2008, Plaintiff appeared, without counsel, and testified at a hearing before the ALJ, who rejected his application on September 19, 2005. To obtain testimony from a medical expert--one Dr. Osvaldo Fulco--the ALJ adjourned the hearing to August 20, 2008, when Plaintiff once again appeared without counsel. (R. 296-322.) This time around, the ALJ assessed Plaintiff's claim de novo, finding on October 31, 2008 that Plaintiff was not disabled prior to January 12, 1977 and therefore unentitled to disabled adult child's benefits. (R. 8-16 (since Plaintiff was born on January 25, 1955, not January 12, 1955, the ALJ's analysis was mistaken on this point.)) After the Appeals Council declined to assume jurisdiction over Plaintiff's case, Plaintiff commenced this action on September 21, 2009.

DISCUSSION

I. Standard of Review: 42 U.S.C. § 405(g)

Federal courts have the "power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a hearing." 42 U.S.C. § 405(g).

Pursuant to the fourth sentence of Section 405(g), remand is appropriate where the Commissioner has failed to develop the administrative record fully and/or to provide a full and fair hearing. Melkonyan v. Sullivan, 501 U.S. 89, 98, 111 S. Ct. 2157, 115 L. Ed. 2d 78 (1991).

II. Plaintiff's Entitlement to Benefits

To establish entitlement to disabled adult child's benefits on the record earnings of an insured person who has died, a Plaintiff must prove he is 18 years of age or older and suffers from a disability that began before he reached 22 years of ...


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