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Sepulveda v. Commissioner of Social Security

United States District Court, Second Circuit

December 16, 2013



JESSE M. FURMAN, District Judge.

Pro se Plaintiff Wilfredo Sepulveda brings this action pursuant to Section 205(g) of the Social Security Act (the "Act"), Title 42, United States Code, Section 405(g), challenging a final decision of the Commissioner of Social Security (the "Commissioner") finding him ineligible for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") as of January 26, 2011. The Commissioner has moved, unopposed, for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket No. 16). For the reasons discussed below, the Commissioner's motion for judgment on the pleadings is GRANTED.


The following facts are taken from the administrative record. The record consists of, among other things, Plaintiff's testimony at an administrative hearing, opinions of various consultative examiners, and hospital records from a July 2010 accident, described below. Plaintiff did not provide any records from regularly treating doctors.

Plaintiff was born in 1977, lives by himself, and completed high school as well as two semesters of college. (Transcript of the Administrative Record ("Tr.") 30, 70, 162). Plaintiff worked as a porter in an office building from 1997 until 2002, and again for a period of eight months in 2009 and 2010. ( Id. 30-31, 93-95). He was laid off in June 2010. ( Id. 31).

In February of 2009, Plaintiff underwent a series of physical and psychological evaluations at the request of the New York State Division of Disability Determinations. ( Id. 160-72). At the physical examination, conducted by Dr. Aurelio Salon, Plaintiff complained of depression and anxiety, as well as "low back and neck pain" as a result of a 2003 automobile accident. ( Id. 166). Dr. Salon found "mild degenerative spondylosis at L3-L4" of Plaintiff's lumbosacral spine ( id. 172), but otherwise found no abnormalities in the spine and concluded that there were "no objective findings to support the fact that [Plaintiff] would be restricted in his ability to sit or stand or... climb, push, pull, or carry heavy objects." ( Id. 167-69).

At the psychological examination conducted by Dr. Heidi Van Horne, Plaintiff reported that he experienced difficulty sleeping, panic attacks, depression, and anxiety. ( Id. 162-63). Dr. Van Horne also reported that Plaintiff stated that "when he gets really depressed he drinks a lot of liquor, " and that "since fourteen years of age he has been smoking marijuana approximately three times per week." ( Id. 163). Dr. Van Horne diagnosed Plaintiff with dysthmic disorder, alcohol abuse, and cannabis abuse. ( Id. 165). Nevertheless, Dr. Van Horne noted that Plaintiff's demeanor was cooperative, his appearance was appropriate, his speech was fluent, and his thought processes were coherent. ( Id. 163-64). Dr. Van Horne concluded that Plaintiff's psychological problems were not "significant enough to interfere with [his] ability to function on a daily basis." ( Id. 164).

In July 2010, Plaintiff sustained injuries after either jumping or falling from a second floor fire escape during a "family crisis." ( Id. 25-28). Plaintiff had been "going through something with [his] girlfriend, " and someone allegedly "slipped something in [his] drink." ( Id. 27). After family members "didn't want to let [him] out of the house, " he "jumped out through the fire escape." ( Id. 27). Plaintiff testified that he was "smoking weed, and somebody had slipped some angel dust in [his] weed" on the night of the dispute. ( Id. 28).

Following the fall, Plaintiff was hospitalized for almost two weeks at Montefiore Medical Center ("Montefiore"), and underwent surgery to repair a compression fracture of the L1 and L2 vertebrae. ( Id. 26, 346-51). He had also suffered a fracture of the right calcaneus (heel), but did not undergo surgery for this condition, and instead was advised to wear a cam walker boot. ( Id. 27, 303, 309). At Montefiore, Plaintiff related that, prior to the fall, he had been upset because he had broken up with his girlfriend and mother of his child and lost his job as a maintenance worker. ( Id. 256). He was transferred from Montefiore to Mt. Sinai Hospital on August 9, 2010 for rehabilitation ( id. 254); transferred back to Montefiore on August 13, 2010 for wound drainage ( id. 207); and ultimately discharged to Mt. Sinai for rehabilitation on August 16, 2010 ( id. ).

On December 19, 2008, Plaintiff filed applications for DIB and SSI, alleging that he was disabled as of August 15, 2003. ( Id. 11). Following the Commissioner's denial of Plaintiff's application on initial review, Plaintiff requested an administrative hearing. ( Id. 40-42, 46-47). On January 3, 2011, Administrative Law Judge ("ALJ") Michael Friedman conducted a hearing, which Plaintiff attended pro se, although he had been advised of his right to representation and provided with a list of potential representatives. ( Id. 8-19, 49, 51-55). After reviewing the case de novo, the ALJ found that Plaintiff was not disabled under the Act ( id. 11-19), which became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review on June 11, 2012. ( Id. 1-3). See Brown v. Apfel, 174 F.3d 59, 61 (2d Cir. 1999) (per curiam).

Plaintiff brought this action pro se on May 31, 2012, and the Commissioner moved for judgment on the pleadings on February 4, 2013. (Docket No. 16). Plaintiff's time to oppose the motion expired without response; the Court therefore considers the motion to be unopposed.


A. Applicable Law

A motion for judgment on the pleadings is evaluated under the same standard as a Rule 12(b)(6) motion to dismiss. See, e.g., Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010). That is, "[t]o survive a Rule 12(c) motion [for judgment on the pleadings], the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Id. (internal quotation marks omitted). Even where such a motion stands unopposed, "the moving party must still establish that the undisputed facts entitle him to a judgment as a matter of law." Vt. Teddy Bear Co. v. 1-800 BEARGRAM Co., 373 F.3d 241, 246 (2d Cir. 2004) (applying this standard in the context of summary judgment); see also Wellington v. Astrue, No. 12 Civ. 3523 (KBF), 2013 WL 1944472, at *2 (S.D.N.Y. May 9, 2013); Martell v. Astrue, No. 09 Civ. 1701 ...

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