Opinion
1:20-cv-07333-GBD-GRJ
08-22-2022
RICARDO D., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT & RECOMMENDATION
GARY R. JONES, MAGISTRATE JUDGE
Plaintiff Ricardo D. began receiving Disability Insurance Benefits under the Social Security Act in January of 2013. The Commissioner of Social Security terminated those benefits effective July 31, 2016. Plaintiff, represented by the New York County Lawyers Association, Mark Levine, Esq., of counsel, commenced this action seeking judicial review of the Commissioner's termination of benefits.
Plaintiff's name has been partially redacted in compliance with Federal Rule of Civil Procedure 5.2 (c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States.
This case was referred to the undersigned for a report and recommendation on May 2, 2022. For the following reasons, it is recommended that the Court should grant the Commissioner judgment on the pleadings and then dismiss this case.
I. BACKGROUND
A. Administrative Proceedings
Plaintiff began receiving disability insurance benefits on January 29, 2013. (T at 133-34). In October of 2015, the Social Security
Citations to “T” refer to the administrative record transcript at Docket No. 12.
Administration conducted a Continuing Disability Review. (T at 329). In May of 2016, the SSA determined that Plaintiff was no longer disabled within the meaning of the Social Security Act and notified him that his benefit payments would terminate as of July 31, 2016. (T at 151). Plaintiff requested reconsideration and a hearing was held before a Disability Hearing Officer on November 9, 2016. The Disability Hearing Officer issued a decision on November 18, 2016, confirming the termination of benefits. (T at 172-81). Plaintiff requested further review before an Administrative Law Judge (“ALJ”).
A hearing was held on December 12, 2018, before ALJ Lori Romeo. (T at 94). Plaintiff appeared but requested and received an adjournment to obtain counsel. (T at 97-101). A further hearing was held on March 22, 2019, before the same ALJ. Plaintiff appeared pro se. (T at 103). The ALJ declined to grant any further adjournment. (T at 106-108). Plaintiff testified with the assistance of an interpreter. (T at 110-115). The ALJ also received testimony from Dr. Harvey Alpern, a medical expert (T at 117-19), and Pat Green, a vocational expert. (T at 122-30).
B. ALJ's Decision
On May 17, 2019, the ALJ issued a decision affirming the termination of benefits. (T at 32-51). The ALJ noted that the most recent favorable decision finding Plaintiff disabled was rendered November 20, 2013, which was therefore the comparison point decision (“CPD”). (T at 40). The ALJ stated that, as of the CPD, Plaintiff had one medically determinable impairment-leukemia. (T at 40). The ALJ found that, as of May 17, 2019 (the date of her decision), Plaintiff had not engaged in substantial gainful activity at any time relevant to the proceeding. (T at 40).
The ALJ further found that, since July 31, 2016, Plaintiff had additional medically determinable impairments: mild obesity, status post bone spur removal surgery, and herniated lumbar disc disease. (T at 40). However, the ALJ found that Plaintiff had not had an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 403, Subpart P, Appendix 1, since July 31, 2016. (T at 40).
The ALJ determined that medical improvement occurred on July 31, 2016, such that, as of the date, the impairment present on the CPD had decreased in medical severity to the point where Plaintiff retained the residual functional capacity (“RFC”) to perform a reduced range of light work, which was less restrictive than Plaintiff's RFC as of the CPD. (T at 40).
The ALJ found that Plaintiff continued to have a severe impairment or combination of impairments since July 31, 2016, but found that Plaintiff retained the RFC to perform light work, as defined in 20 CFR § 404.1567 (b), with the following limitations: he can sit for 6 hours in an 8-hour workday; stand/walk for 2 hours in an 8-hour workday; occasionally bend, stoop, crouch, and crawl; cannot climb ramps or ladders; and cannot work in extreme heat, cold, or humidity. (T at 41).
The ALJ concluded that since July 31, 2016, Plaintiff had not been able to perform his past relevant work as a mailing machine operator. (T at 44). However, considering Plaintiff's age (44 years old on July 31, 2016) education (high school equivalent, able to communicate in English), work experience, and RFC, the ALJ determined that since July 31, 2016, there had been jobs that exist in significant numbers in the national economy that Plaintiff can perform. (T at 44). As such, the ALJ found that Plaintiff's disability ended on July 31, 2016, and that he had not become disabled since that date. (T at 45).
On July 9, 2020, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision. (T at 1-7).
C. Procedural History
Plaintiff commenced this action by filing a Complaint on September 8, 2020. (Docket No. 2). The parties, by and through their counsel, submitted a Stipulation and Order in lieu of motions for judgment on the pleadings on April 25, 2022. (Docket No. 34). The matter was assigned to the undersigned for a report and recommendation on May 2, 2022.
II. APPLICABLE LAW
A. Standard of Review
“It is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). The court's review is limited to “determin[ing] whether there is substantial evidence supporting the Commissioner's decision and whether the Commissioner applied the correct legal standard.” Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam).
The reviewing court defers to the Commissioner's factual findings, which are considered conclusive if supported by substantial evidence. See 42 U.S.C. § 405(g). “Substantial evidence” is “more than a mere scintilla” and “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lamay v. Commissioner of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (internal quotations omitted) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“In determining whether the agency's findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotations omitted).
“When there are gaps in the administrative record or the ALJ has applied an improper legal standard,” or when the ALJ's rationale is unclear, remand “for further development of the evidence” or for an explanation of the ALJ's reasoning is warranted. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).
B. Five-Step Sequential Evaluation Process
Under the Social Security Act, a claimant is disabled if he or she lacks the ability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months ....” 42 U.S.C. § 423(d)(1)(A).
A claimant's eligibility for disability benefits is evaluated pursuant to a five-step sequential analysis:
1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has a “severe impairment” which limits his or her mental or physical ability to do basic work activities.
3. If the claimant has a “severe impairment,” the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience.
4. If the impairment is not “listed” in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work.
5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform.
See Rolon v. Commissioner of Soc. Sec., 994 F.Supp.2d 496, 503
(S.D.N.Y. 2014); see also 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
The claimant bears the burden of proof as to the first four steps; the burden shifts to the Commissioner at step five. See Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). At step five, the Commissioner determines whether the claimant can perform work that exists in significant numbers in the national economy. See Butts v. Barnhart, 416 F.3d 101, 103 (2d Cir. 2005); 20 C.F.R. § 404.1560(c)(2).
C. Medical Improvement
A claimant who has been awarded disability benefits may thereafter be determined to be no longer disabled if substantial evidence of “medical improvement” supports the conclusion that the claimant can work. See 42 U.S.C. § 423(f)(1); See Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Hathaway v. Berryhill, 687 Fed.Appx. 81, 83 (2d Cir. 2017) (summary order) (“[Where] the individual's condition has ‘improve[d] to the point where he or she is able to engage in substantial activity' ... benefits are no longer justified, and may be terminated,...”)(citing De Leon v. Sec'y of Health & Human Servs., 734 F.2d 930, 937 (2d Cir. 1984)).
“Medical improvement” is defined as “any decrease in the medical severity of [the claimant's] impairment(s) which was present at the time of the most recent favorable medical decision that [he or she was] disabled or continued to be disabled.” 20 C.F.R. §§ 404.1594(b)(1), 416.994(b)(1)(i).
To determine whether medical improvement has occurred, “the Commissioner compares ‘the current medical severity of the impairment ... to the medical severity of that impairment at the time' of the most recent favorable medical decision.” Veino, 312 F.3d at 586-87 (quoting 20 C.F.R. § 404.1594(b)(7) (alteration in original)). The time of the most recent decision finding the claimant is disabled is considered the “comparison point decision” (“CPD”).
With respect to claimants receiving disability insurance benefits, the medical improvement determination involves an eight-step procedure. See Abrams v. Astrue, No. 06 Civ. 0689 (JTC), 2008 WL 4239996, at *2 (W.D.N.Y. Sept. 11, 2008) (“The Commissioner has the burden of persuasion to demonstrate medical improvement, in accordance with the eight-step sequential evaluation process set forth in the regulations” (citations omitted)).
First, the ALJ asks whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1594(f)(1). If not, the ALJ considers whether the claimant has an impairment that meets or equals the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. If the claimant has such an impairment, then disability will be found to continue. See id. §§ 404.1594(f)(2), 416.994(b)(5)(i).
If the claimant does not suffer from a Listing-level impairment, then Step Three requires the ALJ to determine whether there has been medical improvement as defined by the Regulations. See id. §§ 404.1594(f)(3), 416.994(b)(5)(ii).
If there has been medical improvement, then Step Four requires the ALJ to determine whether the improvement is related to the claimant's ability to do work, i.e., whether there has been an increase in the claimant's RFC, based on the impairment that was present at the CPD. See id. §§ 404.1594(f)(4), 416.994(b)(5)(iii). If the ALJ finds that the improvement was unrelated to the claimant's ability to work, then Step Five asks the ALJ to consider whether any exceptions apply. See id. §§ 404.1594(f)(5), 416.994(b)(5)(iv).
If medical improvement related to the ability to work is shown, then Step Six considers whether all the claimant's current impairments in combination should be considered severe, i.e., whether all impairments in combination significantly limit the claimant's ability to do basic work activities. See id. §§ 404.1594(f)(6), 416.994(b)(5)(v).
If the impairments are found to be severe, then Step Seven requires the ALJ to determine the claimant's residual functional capacity (“RFC”) and decide whether the claimant retains the RFC to perform his or her past relevant work. See id. §§ 404.1594(f)(7), 416.994(b)(5)(vi).
Finally, if the claimant is unable to perform his or her past relevant work, the ALJ determines whether the claimant is capable of performing “any other work” that exists in significant numbers in the national economy, considering claimant's age, education, past work experience, and RFC. See id. §§ 404.1594(f)(8), 416.994(b)(5)(vii). If a claimant can perform such work, then disability will be deemed to have ended. Id.
III. DISCUSSION
Plaintiff raises four arguments in support of his challenge to the ALJ's decision. First, he challenges the ALJ's medical improvement analysis. Second, Plaintiff asserts that the ALJ's RFC determination is not supported by substantial evidence. Third, Plaintiff argues that the ALJ did not satisfy her duty to develop the record. Fourth, Plaintiff contends he was denied a fair hearing because the ALJ refused to grant a second adjournment of the administrative hearing. This Court will address each argument in turn.
A. Medical Improvement
The ALJ found that as of November 20, 2013 (the “CPD”), Plaintiff had one medically determinable impairment-leukemia. (T at 40). The ALJ compared Plaintiff's leukemia as of the CPD with his condition on July 31, 2016 (the date his benefits were terminated). The ALJ found the impairment present at the time of the CPD had decreased in medical severity to the point where Plaintiff could perform light work, which was a less restrictive capacity than he had at the time of the CPD. (T at 41).
The ALJ's conclusion that Plaintiff experienced medical improvement relative to leukemia is well-supported by the evidence. Plaintiff was diagnosed with acute promyelocytic leukemia in January 2013. (T at 37683, 398, 551). His treatment included promyelocytic leukemia induction therapy, followed by chemotherapy and cycles of arsenic trioxide consolidation therapy. (T at 398-403, 551-662). Following treatment, Plaintiff's leukemia was considered in remission, bone marrow biopsies were negative for residual leukemia, and treatment notes indicated that Plaintiff was feeling well and able to perform normal activities. (T at 421, 424, 427, 431, 437, 438, 441, 449-53, 516-24, 529-35, 808, 809). Dr. Harvey Alpern, the medical expert who testified at the administrative hearing, testified that there was “no evidence of severe hematologic problems” after May of 2016. (T at 117). Plaintiff testified that his leukemia was in remission and explained that he was now alleging disability based on back pain. (T at 112).
Plaintiff suggests that the record before the ALJ may have been incomplete and may not have included all the pertinent documents from the earlier disability determination. Plaintiff, however, offers no evidence to show that the initial disability determination was based on anything other than his leukemia diagnosis, which is what the record discloses. (T at 13740, 144-45). The ALJ recognized the initial determination and then carefully reviewed the evidence (outlined above) establishing that Plaintiff had experienced medical improvement (and, indeed, remission) with respect to leukemia-the condition that gave rise to the disability determination. (T at 41-44). Plaintiff does not challenge this aspect of the ALJ's analysis and/or argue that his leukemia continued to be a disabling condition as of the date benefits were terminated.
The case law establishes that remand is required where “the ALJ did not cite or discuss any medical evidence that supported the initial finding of plaintiff's disability.” Hathaway v. Berryhill, 687 Fed.Appx. 81, 84 (2d Cir. 2017); see also Larena M. v. Comm'r of Soc. Sec., No. 1:20-CV-1018 (WBC), 2022 WL 768659, at *4 (W.D.N.Y. Mar. 14, 2022). For the reasons stated above, the Court concludes this is not such a case and, therefore, remand is not warranted.
B. RFC Determination
A claimant's “residual functional capacity” (“RFC”) is his or her “maximum remaining ability to do sustained work activities in an ordinary work setting on a continuing basis.” Melville, 198 F.3d at 52 (quoting SSR 96-8p). When assessing a claimant's RFC, an ALJ must consider medical opinions regarding the claimant's functioning and make a determination based on an assessment of the record as a whole. See 20 C.F.R. §§ 404.1527(d)(2), 416.9527(d)(2) (“Although we consider opinions from medical sources on issues such as ...your residual functional capacity...the final responsibility for deciding these issues is reserved to the Commissioner.”).
Here, the ALJ found that Plaintiff has continued to have a severe impairment or combination of impairments since July 31, 2016, but concluded that Plaintiff retained the RFC to perform light work, as defined in 20 CFR § 404.1567 (b), with the following limitations: he can sit for 6 hours in an 8-hour workday; stand/walk for 2 hours in an 8-hour workday; occasionally bend, stoop, crouch, and crawl; cannot climb ramps or ladders; and cannot work in extreme heat, cold, or humidity. (T at 41).
This Court concludes that the ALJ's RFC determination is supported by substantial evidence. The determination is supported by multiple medical opinions. Dr. Alpern reviewed the record and testified at the administrative hearing that Plaintiff could stand or walk for 2 hours in an 8-hour workday, sit for 6 hours in an 8-hour workday, lift 20 pounds occasionally and 10 pounds frequently, perform postural activities occasionally, and must avoid climbing ropes or ladders. (T at 42, 119).
Dr. Aurelio Salon performed a consultative examination in July of 2016. On clinical examination, Dr. Salon found full flexion of the cervical spine and lumbar spine; full range of motion in shoulders, elbows, forearms, wrists, hips, knees, and ankles bilaterally; stable joints; negative straight leg raising bilaterally; full strength in upper and lower extremities; no sensory deficits; and no muscle atrophy. (T at 474). Dr. Salon assessed no limitation with respect to Plaintiff's ability to sit but opined that Plaintiff would be restricted in his ability to stand for prolonged periods and limited in his capacity to push, pull, or carry heavy objects. (T at 474).
In June of 2018, Dr. Silvia Aguiar, another consultative examiner, assessed moderate to marked limitations as to bending, heavy lifting, carrying, crouching, and prolonged standing, sitting, or walking. (T at 660). This assessment is generally consistent with, and supportive of, the RFC determination. The ALJ reasonably concluded that Dr. Aguiar's assessment of limitation with respect to prolonged sitting was inconsistent with the overall record, including the opinions of Dr. Alpern and Dr. Salon, and unsupported by Dr. Aguiar's own clinical findings, which were generally unremarkable. (T at 657-59).
In addition to the medical opinions outlined above, the ALJ's RFC determination is supported by a reasonable reading of the record, which included generally unremarkable clinical findings and evidenced the ability to perform activities consistent with the limitations assessed by the ALJ. (T at 42-44, 112, 166, 470, 473-74, 486, 492, 658-59, 751, 753, 758).
Plaintiff challenges the ALJ's RFC determination, questions the credibility of Dr. Alpern's testimony, and offers an alternative, more restrictive reading of the record. When the record, however, contains competing medical evidence, it is the role of the Commissioner, and not this Court, to resolve such conflicts. See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002)(“Genuine conflicts in the medical evidence are for the Commissioner to resolve.”).
“Substantial evidence is “a very deferential standard of review - even more so than the ‘clearly erroneous' standard." Brault v. SSA, 683 F.3d 443, 447-48 (2d Cir. 2012) (per curiam) (citation omitted). “The substantial evidence standard means once an ALJ finds facts, [a court] can reject those facts only if a reasonable factfinder would have to conclude otherwise.” Id. at 448 (emphasis in original) (citation and internal quotation marks omitted). “The role of the reviewing court is therefore quite limited and substantial deference is to be afforded the Commissioner's decision.” Johnson v. Astrue, 563 F.Supp.2d 444, 454 (S.D.N.Y. 2008)(citation and internal quotation marks omitted).
Indeed, “[i]f the reviewing court finds substantial evidence to support the Commissioner's final decision, that decision must be upheld, even if substantial evidence supporting the claimant's position also exists.” Id. (citing Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)); see also McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (“If evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld.”)(citation omitted).
Here, a reasonable factfinder could sustain the ALJ's reading of the overall record and find support, including the assessments of Dr. Alpern and Dr. Salon, sufficient to sustain the ALJ's RFC determination. As such, this Commissioner's decision on this issue is to be affirmed.
C. Duty to Develop the Record
ALJs have an affirmative duty to develop the administrative record. See, e.g., Rosa v. Callahan, 168 F.3d 72, 79-83 (2d Cir. 1999); Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118-19 (2d Cir. 1998).
Moreover, Plaintiff appeared at the administrative hearing pro se, which “heightened” the ALJ's duty. Cruz v. Sullivan, 912 F.3d 8, 11 (2d Cir.1990). The ALJ was required “to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.” Id. at 11 (internal quotation marks omitted). This Court, in turn, must undertake a “searching investigation of the record” to ensure that the claimant received “a full hearing under the [Commissioner's] regulations and in accordance with the beneficent purposes of the [Social Security] Act.” Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir.1980) (internal quotation marks omitted).
Plaintiff takes issue with the ALJ's consideration of two statements from Dr. Casilda Balmaceda, his treating neurologist. In a July 2016 treatment note, Dr. Balmaceda stated as follows: “I have discussed with [Plaintiff] that permanent disability is unlikely as he [is] young[] and has only ONE herniated disc, thus disease that is quiet amenable to []improvement via surgery.” (T at 470). The ALJ noted that this was “not a specific statement of [Plaintiff's] limitations ....” (T at 43). In a letter dated April 14, 2017, Dr. Balmaceda described Plaintiff as “completed disabled ....” (T at 494).
The ALJ afforded no weight to either of Dr. Balmaceda's statements, as they were inconsistent with each other and constituted opinions on an issue reserved to the Commissioner. (T at 43). See Guzman v. Astrue, No. 09-CV-3928 (PKC), 2011 WL 666194, at *10 (S.D.N.Y. Feb. 4, 2011)(treating provider's statement “that the claimant is ‘disabled' or ‘unable to work' is not controlling,” because such determinations are reserved for the Commissioner)(citing 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1)); see also Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (“A treating physician's statement that the claimant is disabled cannot itself be determinative.”).
Plaintiff contends that the ALJ was obliged to re-contact Dr. Balmaceda to obtain further information regarding the basis of the physician's statements and/or to obtain the physician's opinion regarding Plaintiff's functional limitations. However, “an ALJ is not required to attempt to obtain additional evidence to fill any gap in the medical evidence; rather an ALJ is required to do so only where the facts of the particular case suggest that further development is necessary to evaluate the claimant's condition fairly.” Francisco v. Comm'r of Soc. Sec., No. 13CV1486 TPG DF, 2015 WL 5316353, at *11 (S.D.N.Y. Sept. 11, 2015)(emphasis in original); see also Sampson v. Saul, No. 19CIV6270PAESN, 2020 WL 6130568, at *6 (S.D.N.Y. Oct. 16, 2020).
Here, the ALJ sought the assistance of Dr. Alpern, a medical expert, and the record already contains extensive documentation (including imaging studies, treatment notes, and clinical examinations), along with detailed opinions from two consultative examiners. For this reason, the Court concludes that the record was sufficiently well-developed to allow the ALJ to evaluate Plaintiff's condition fairly.
Plaintiff also suggests that the ALJ's questioning at the administrative hearing was insufficient. This is not supported by the record. The ALJ inquired about Plaintiff's education, ability to speak and read English, and work history. (T at 110-12). She asked about the course of his leukemia treatment and explored the nature and extent of his alleged physical limitations and their impact on his ability to perform basic work activities. (T at 112-14). The ALJ also inquired about Plaintiff's activities of daily living and provided an open invitation for Plaintiff to share any other information he felt relevant to the disability determination. (T at 114-15). Plaintiff fails to identify any further questions the ALJ should have asked and does not articulate any additional material information he would have entered into the record if he had been invited to do so during the hearing.
The Court, therefore, finds that the ALJ fulfilled her (heightened) duty to develop the record.
D. Fair Hearing
An initial administrative hearing was held on December 12, 2018. Plaintiff appeared pro se. (T at 94). The ALJ advised him of his right to have an attorney or qualified representative assist him. (T at 97). Plaintiff requested and received an adjournment to obtain counsel. (T at 97). The second hearing was held on March 22, 2019. (T at 103). Plaintiff again appeared pro se. Plaintiff said he was ready to proceed with the hearing. (T at 106). He explained that his prior attorney would not agree to represent him and that he had not been able to find another attorney. (T at 106). Plaintiff advised that he would continue to look for a lawyer if he was granted an adjournment. (T at 107). The ALJ noted that Plaintiff had already been given more than three months to secure counsel and stated it seemed unlikely that granting additional time would change the situation. (T at 107-108). The ALJ denied any further adjournment and proceeded with the hearing. (T at 108).
Plaintiff argues that the ALJ's refusal to grant a further adjournment was improper and justifies remand.
“Although a claimant does not have a constitutional right to counsel at a social security disability hearing, she does have a statutory and regulatory right to be represented should she choose to obtain counsel.” See Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009)(citing 42 U.S.C. § 406 and 20 C.F.R. § 404.1705). Here, Plaintiff received multiple written notices of his right to counsel (T at 52, 151-53, 184-95, 253-56), was given an extensive verbal explanation by the ALJ (T at 9799), was provided with a list of organizations that could assist him in obtaining representation (T at 87) and was granted an adjournment of more than three months to seek counsel. (T at 107-108).
Plaintiff received all the notice and opportunity required by the law (and more) and, therefore, this Court cannot recommend a remand based on the ALJ's decision to proceed with the second administrative hearing. See Pappas v. Saul, 414 F.Supp.3d 657, 684 (S.D.N.Y. 2019)(“Nothing in the governing statute or regulations required the ALJ to grant a second adjournment.”)(collecting cases); Gonzalez v. Barnhart, No. 02 CIV. 5813(HB), 2003 WL 22383376, at *4 (S.D.N.Y. Oct. 16, 2003)(because claimant “failed to retain counsel in the two-month period before his rescheduled hearing, this Court finds that his waiver was knowing and voluntary and was not the fault of any deficiency on the part of the ALJ”).
IV. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Court should grant judgment on the pleadings in favor of the Commissioner and then dismiss this case.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the District Judge. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).