CLAIRE H. v. LELAND DUDEK, Acting Commissioner of Social Security
22-CV-409-LGF (consent)
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
March 11, 2025
APPEARANCES: HILLER COMERFORD INJURY & DISABILITY LAW PLLC Attorneys for Plaintiff IDA M. COMERFORD, KELLY ELIZABETH LAGA-SCIANDRA, and KENNETH R. HILLER, of Counsel 6000 North Bailey Avenue Suite 1A Amherst, New York 14226
MICHAEL DiGIACOMO INTERIM UNITED STATES ATTORNEY Attorney for Defendant Federal Centre 138 Delaware Avenue Buffalo, New York 14202 and JOHN THOMAS MOLINARO Special Assistant United States Attorney, of Counsel Social Security Administration Office of General Counsel 6401 Security Boulevard Baltimore, Maryland 21235
1Leland Dudek became the Acting Commissioner of the Social Security Administration on February 16, 2025, and, pursuant to
On October 1, 2024, the parties to this action consented pursuant to
BACKGROUND and FACTS2
Plaintiff Claire H. (“Plaintiff“), commenced this action under Titles II and XVI of the Social Security Act (“the Act“),
During the first hearing, Plaintiff testified that none of her children had lived with Plaintiff since December 2012, at which time Plaintiff became homeless. AR at 80-81. According to Plaintiff, upon moving from Arizona back to the western New York area in 2013, she was arrested on a bench warrant for not appearing in traffic court and held for seven days.4 Id. at 94. After being released, Plaintiff attempted to have her children returned but was denied because she could not find suitable housing. Id. at 94-95. As of January 30, 2017, Plaintiff‘s children, then ages 6 and 16, lived with Plaintiff‘s sister in Williamsville, New York. AR at 93-94.
On April 14, 2017, ALJ Gohr issued a decision denying Plaintiff‘s claim, AR at 9-30 (“the first ALJ decision“), which Plaintiff timely appealed to the Appeals Council. AR at 195-97 (repeated at 552-73). On May 29, 2018, the Appeals Council denied Plaintiff‘s request to review the first ALJ decision, rendering it the Commissioner‘s final decision at that time. AR at 1-6 (remailed to Plaintiff on June 20, 2018, AR at 574-79).
In April 2018, Plaintiff gave birth to her third child, a daughter “I.” (“I.“).5 AR at 1145, 1159, 1162. As of June 11, 2018, Plaintiff‘s eldest child, “C.H.,” lived away at college, while N.H. was in foster care, and Plaintiff‘s youngest child, I., lived with Plaintiff. AR at 1125. Although Plaintiff‘s sister had applied for custody of N.H. the application was terminated when Plaintiff‘s sister was charged with neglect for smoking crack. Id. at 1125, 1145, 1182. Plaintiff continued seeking return of custody of N.H. Id.
On August 21, 2021, Plaintiff‘s parental rights to N.H. were terminated when he was adopted by one Kim Harrigan (“Harrigan“). On September 23, 2021, upon remand from this court, a second administrative hearing (“second hearing“) was held before ALJ Stephen Cordovani (“ALJ Cordovani” or “the ALJ“) in Buffalo, New York via teleconference. AR at 488-543.6 Appearing by telephone and testifying at the hearing were Plaintiff, represented by Anthony DeMarco, Esq., impartial medical expert Steven Golub, M.D. (“Dr. Golub“), impartial psychiatric expert Chukwuemeka Efobi, M.D. (“Dr. Efobi“), and impartial vocational expert (“VE“) Melissa Fass-Karlin (“the VE“). As of the second hearing, Plaintiff lived alone in an apartment in Niagara Falls, New York, but Plaintiff had lived for several years with I. and I.‘s father until relinquishing custody of I. to the father recently before the second hearing. AR at 472, 529-30. On January 31, 2022, ALJ Cordovani issued a decision denying Plaintiff‘s claim (“second ALJ decision“). AR at 461-87. On May 31, 2022, Plaintiff commenced this action.
On November 3, 2022, Plaintiff moved for judgment on the pleadings (Dkt. 10) (“Plaintiff‘s motion“), attaching the Memorandum of Law in Support of Plaintiff‘s Motion for Judgment on the Pleadings (Dkt. 10-1) (“Plaintiff‘s Memorandum“). On January 3,
On April 5, 2024, a Suggestion of Death Upon the Record Pursuant to [
Based on the following, Plaintiff‘s motion for substitution is GRANTED; Plaintiff‘s motion is DENIED; Defendant‘s motion is GRANTED.
DISCUSSION
1. Motion to Substitute
Plaintiff‘s motion for substitution seeks to substitute for Plaintiff her biological son N.H., represented by N.H.‘s adoptive mother, Harrigan, Plaintiff‘s Substitution Memorandum at 1, arguing that as Plaintiff‘s son, N.H. is, under New York law, a distributee of Plaintiff and thus is entitled to Plaintiff‘s DIB benefits that were past-due at the time of Plaintiff‘s death. Id. at 2-3. Defendant does not oppose Plaintiff‘s motion for substitution and concedes that both applicable federal and New York law allow for minor children, as distributees, to receive Plaintiff‘s past-due benefits, as well as that federal law permits the guardian of a minor to sue on behalf of the minor, Defendant‘s Substitution Response at 4-6, but defers to the court to determine whether Harrigan is a proper party for substitution in this action. Id. at 6.
Plaintiff‘s
If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent‘s successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.
Nevertheless, if a DIB claimant dies before any DIB payment under Title II is made, such benefits can be made to the child of the deceased claimant if no spouse survives.
“‘A ‘proper party’ ... is either (1) a successor of the deceased party—a distributee of an estate if the estate of the deceased has been distributed at the time the motion for substitution has been made, or (2) a representative of the deceased party—a person lawfully designated by state authority to represent the deceased‘s estate.‘” Herrera-Castro v. Trabajamos Cmty. Head Start, Inc., 2017 WL 549584, at *1 (S.D.N.Y. Jan. 30, 2017) (quoting Lungu v. New Island Hosp./St. Joseph Hosp., 2012 WL 2050205, at *5 (E.D.N.Y. June 4, 2012)) (emphasis omitted). Whether a person is a proper “successor or representative” of the decedent is typically determined based on the law of the forum state, here, New York. Garcia v. City of New York, 2009 WL 261365, at *1 (E.D.N.Y. Feb. 4, 2009) (citing Graham v. Henderson, 224 F.R.D. 59, 64 (N.D.N.Y. 2004)). Where, as here, a plaintiff dies destitute, there would not be any estate to distribute so the party seeking substitution as successor and who is not also a representative of the plaintiff‘s estate need not show that the estate has been distributed before serving as successor. Herrera-Castro, 2017 WL 549584, at *1.
In the instant case, Plaintiff‘s counsel asserts that Plaintiff died intestate and her estate did not pass through New York State Surrogate‘s Court. Laga-Sciandra
The Act specifically provides for payment of past-due benefits to survivors or heirs when the eligible claimant dies before any past-due benefit payment is made pursuant to a specified order of priority to wit, and as relevant, a surviving spouse, then children of the deceased. See
N.H., as Plaintiff‘s child, may be a distributee of Plaintiff‘s estate pursuant to N.Y. Estates Powers & Trust Law which, as relevant, provides that if a decedent is survived by issue, but no spouse, the whole estate is distributed to such issue by representation.
Here, Harrigan‘s statement is devoid of any definitive statement that Harrigan‘s adoption of N.H. falls within any of the intrafamily adoption exceptions that would preserve N.H.‘s right to inherit as a distributee of his biological mother so as to be a successor to Plaintiff.10 Nor is there any indication why there was no attempt to substitute as the proper party either N.H.‘s older brother, C.H., or N.H.‘s younger sister, I.11 However, given that in the absence of such information, the court cannot definitively
2. Disability Determination
A claimant is “disabled” within the meaning of the Act and entitled to disability benefits when she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months.”
In short, the issue is not whether substantial evidence supports the claimant‘s argument, but “whether substantial evidence supports the ALJ‘s decision.” Bonet ex rel. T.B. v. Colvin, 523 Fed.Appx. 58, 59 (2d Cir. 2013) (italics in original). “Under this ‘very deferential standard of review,’ ‘once an ALJ finds facts, we can reject those facts only if a reasonable factfinder would have to conclude otherwise.‘” Id. at 58-59 (quoting Brault v. Social Sec. Admin., Comm‘r, 683 F.3d 443, 448 (2d Cir. 2012) (italics in original).
The definition of “disabled” is the same for purposes of receiving SSDI and SSI benefits. Compare
In the instant case, Plaintiff argues the second ALJ decision is erroneous because the ALJ failed to consider Plaintiff‘s migraines a severe impairment at step 2 of the five-step sequential analysis and, thus, failed to incorporate any associated limitations into the RFC formulation. Plaintiff‘s Memorandum at 13-16. Plaintiff also argues the ALJ failed to consider the impact of the frequency of her treatment on Plaintiff‘s ability to maintain an expected work schedule. Id. at 16-19. In opposition, Defendant argues substantial evidence in the record supports the ALJ determination that Plaintiff‘s migraines were not a severe impairment, Defendant‘s Memorandum at 6-12, and that Plaintiff has not pointed to any evidence establishing that her treatments and appointments precluded her from performing full-time work. Id. at 12-15. In further support of her motion, Plaintiff characterizes Defendant‘s arguments as “create[ing] justification on post hoc facts and reasoning not made by the ALJ,” and argues the ALJ failed to evaluate recommendations by Plaintiff‘s treatment providers that she treat her migraines by resting. Plaintiff‘s Reply at 1-2.
1. Migraines
Plaintiff argues that at step 2 of the five-step sequential evaluation the ALJ‘s determination that Plaintiff‘s migraine condition was not a severe impairment was in error that was not harmless because the ALJ thereafter failed to incorporate limitations posed by Plaintiff‘s impairments into the RFC assessment.13 Plaintiff‘s Memorandum at 13-16. In opposition, Defendant argues the ALJ‘s decision that Plaintiff‘s migraine condition was not a severe impairment is supported by substantial evidence in the record. Defendant‘s Memorandum at 6-12. In further support of her motion, Plaintiff
As discussed above, only Plaintiff‘s DIB claim under Title II of the Act survived Plaintiff‘s death. Significantly, to be eligible for disability benefits under Title II of the Act, Plaintiff was required to establish she was disabled as of her date last insured, here, March 31, 2014. See Kohler, 546 F.3d at 265 (applicant for disability insurance must be disables on or before date last insured). Here, however, the administrative record is devoid of any medical records or other evidence establishing Plaintiff suffered with migraines prior to March 31, 2014; rather, the first time Plaintiff‘s migraines are mentioned in the record is on December 13, 2019. AR at 1909-12. This is consistent with ALJ Cordovani‘s statement at the second hearing that Plaintiff‘s earliest medical records are from April 22, 2014, AR at 508 (referencing AR at 257), and a plain reading of such record shows no mention of migraines. Accordingly, Plaintiff cannot establish that migraines were a severe impairment or even a non-severe impairment that must be considered in combination with severe impairments so as to establish disability as of her date last insured, March 31, 2014, based on migraines.
2. Treatment and Absenteeism at Work
Plaintiff argues the ALJ failed to consider the impact of the frequency of Plaintiff‘s treatments on Plaintiff‘s ability to maintain an expected work schedule, particularly with regard to her attendance at individual and group therapy for her mental health impairments and substance abuse treatment, Plaintiff‘s Memorandum at 19, as well as her migraines which often required Plaintiff to rest. Plaintiff‘s Reply at 1-2. In support of
The time required by Plaintiff for her treatment regime is critical to the disability determination because at the second hearing, the VE testified that there are no jobs available for anyone who would be off-task more than 10% of a workday, or absent more than one day per month. AR at 539. It is, however, Plaintiff‘s burden to establish disability, including that her RFC is more restrictive than that determined by the ALJ because, inter alia, attending her treatment appointments actually would require her to miss more than one day of work per month, see Amy C. v. Comm‘r of Soc. Sec., 2021 WL 1758764, at * 8-9 (N.D.N.Y. May 4, 2021) (observing it is the plaintiff‘s burden to point to evidence that her impairment would result in excessive absenteeism), or that dealing with migraines would require her to be off-task more than 10% of the work day). See Elizabeth K. v. Comm‘r of Soc. Sec., 2024 WL 1051822, at * 4 (W.D.N.Y. Mar. 11, 2024) (holding the plaintiff did not meet her burden of establishing her migraines would cause her to be off-task more than 10% of the work day).
Here, Plaintiff does not reference any evidence establishing that attending her treatment sessions would interfere with her ability to work; rather, such argument
As for Plaintiff‘s therapy treatment, not only are the earliest medical record in the administrative record dated April 22, 2014, AR at 257, such record is devoid of any mention of Plaintiff‘s treatment protocol. Of further significance is impartial psychiatric expert Dr. Efobi‘s testimony at the second hearing no inference or assessment as to Plaintiff‘s mental health impairment could be made without medical records pertaining to the period prior to April 22, 2014. AR at 508. Accordingly, there is no merit to this argument.
CONCLUSION
Based on the foregoing, Plaintiff‘s motion for substitution (Dkt. 19) is GRANTED; Plaintiff‘s motion (Dkt. 10) is DENIED; Defendant‘s motion (Dkt. 12) is GRANTED. The Clerk of Court is DIRECTED TO CLOSE THE FILE.
SO ORDERED.
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: March 11, 2025 Buffalo, New York