New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration
« Back to Complex Lit Blog

Internet Evidence — Municipal Government Program Accessed via Wayback Machine — Implicit Judicial Notice of Program’s Self-Description on Its Website as of 2011

Download PDF

Ferone v. Colvin, 2015 U.S. Dist. LEXIS 181826 (S.D.N.Y. June 17, 2016) (R&R):

I. Introduction

 

Plaintiff, Nanette L. Ferone, brings this action pursuant to Section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications for supplemental security income benefits ("SSI") and disability insurance benefits ("DIB"). Plaintiff has moved for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure (Notice of Motion, dated December [*2]  19, 2014 (Docket Item 15)). The Commissioner has filed a cross-motion also seeking judgment on the pleadings (Notice of Motion, dated January 20, 2015 (Docket Item 17)).

 

For the reasons set forth below, I respectfully recommend that plaintiff's motion for judgment on the pleadings be denied and that the Commissioner's motion for judgment on the pleadings be granted.

II. Facts

A. Procedural Background

Plaintiff filed applications for SSI and DIB on June 30, 2011, alleging that she had been disabled since June 3, 2010 (Tr.1 151-68). The Social Security Administration denied plaintiff's applications, finding that she was not disabled (Tr. 59-60). Plaintiff timely requested and was granted a hearing before an Administrative Law Judge ("ALJ"). ALJ Patrick Kilgannon conducted a hearing on February 27, 2013 (Tr. 38-58). In a decision dated April 26, 2013, ALJ Kilgannon determined that plaintiff was not disabled within the meaning of the Act (Tr. 7-28). The ALJ's decision became the final decision of the Commissioner on May 27, 2014 when the Appeals Council denied plaintiff's request for review (Tr. 1-6). Plaintiff commenced this action seeking review of the Commissioner's decision on July 10, [*3]  2014 (Complaint (Docket Item 1)).

1   "Tr." refers to the administrative record that the Commissioner filed with her answer, pursuant to 42 U.S.C. § 405(g) (see Notice of Filing of Administrative Record, dated July 31, 2014 (Docket Item 9)).

B. Plaintiff's Social Background

Plaintiff was born in September 1960 (Tr. 184). She holds a high school diploma and speaks English (Tr. 188, 190). Plaintiff worked as a food vendor in 2002, a school assistant from 2003 to 2004, and a safety monitor at a family shelter from 2008 to 2010 (Tr. 190). She also briefly worked in a factory assembling products (Tr. 48). Plaintiff lived with her teenage daughter in a shelter in the Bronx, eventually obtaining her own housing by at least late 2012 (see Tr. 198, 272, 294, 559). Plaintiff claims disability based on psychiatric conditions that she contends stem from sexual harassment she experienced in the workplace in 2010 (Tr. 42).

In a March 2011 FEGS2 Biopsychosocial Summary, plaintiff reported that she was not interested in working and that she could not work because of her mental health conditions (Tr. 297). She stated that she had suffered abuse in the workplace in 2008 (Tr. 298). Plaintiff denied ever being hospitalized for [*4]  mental conditions and denied experiencing auditory hallucinations (Tr. 300). She also denied current suicidal ideation, but reported that she had experienced suicidal ideation in 2008 (Tr. 300). This report stated that plaintiff took the bus to her appointment and had no travel restrictions (Tr. 301). Plaintiff also reported that she participated in library services (Tr. 295)

2   Federal Employment and Guidance Service ("FEGS") WeCare is a New York City program that "help[s] [public] assistance applicants and recipients with complex clinical barriers to employment, including medical, mental health, and substance abuse conditions, to obtain employment or federal disability benefits." FEGS: WeCare, FEGS Health & Human Servs., http://www.fegs.org/ what-we-do/employment-workforce/jobseekers/wecare#.VYG22UbYhdB (accessed via the Internet Archive index).

Share this article:

Facebook
Twitter
LinkedIn
Email

Recent Posts

RICO: (1) Victim vs. Perpetrator Enterprises — (2) § 1962(b): Elements of a Violation — (3) Meaning of “Interest” and “Control” in § 1962(b) — (4) The Defendant in a § 1962(b) Action Need Not Be an Enterprise; The Victim Must Be An Enterprise — (5) Acquisition/Maintenance Injury Required (6) Aiding and Abetting Liability under RICO

Rule 11 Sanctions: Request for Bill of Particulars re Sanctions Proceeding Reviewed for Abuse of Discretion — Court’s Discretion Narrows As Severity of Sanction Increases OR When It Initiates the Sanction Proceeding Itself — Particularly Strict Abuse of Discretion Standard Applied — “Rule 11 Does Not License a District Court to Sanction Any Action by an Attorney or Party That It Disapproves of” (Good Quote) — Failure to Provide Identify Specific Pleading and Detail Specific, Objectionable Conduct within that Pleading Violates Due Process — Failure to Provide Notice That Most Severe Sanction May Be Imposed Violates Due Process — Failure to Provide Notice That “Scarlett Letter Sanction” (Mandatory Circulation of Sanctions Order) Or Other Sanction That Could Leave Indelible Imprint on Career Might Be Imposed Violates Due Process — Notice That Law Firm Might Be Sanctioned Insufficient to Afford Notice to Firm Lawyer and Managing Partner That He Might Be Sanctioned — Refusal to Impose Additional Sanction Until Impact of Other Imposed Penalties (Not Sanctions) Ascertained to See Whether Sanction Needed

Rule 37(c)(1) Sanctions: (1) Exclusion of Expert Testimony Reviewed for Abuse of Discretion Even When It Results in Summary Judgment — (2) Whether Physicians Must File 26(a)(2)(B) Report Depends on Whether They Formed Their Opinions for Litigation Or in the Course of Medical Treatment — (3) Party Seeking to Avoid Exclusion of Its Expert for Noncompliance with Rule 26 Bears Burden of Showing Harmlessness or Substantial Justification — (4) Expert Report Subject to Exclusion If It Is Conclusory and Does Not Meet the Level of Rigor Required by Rule 26(a)(2)(B)

RICO: The Statute Defines Enterprise Broadly, “But That Breadth Is Not Without Limit” (Good Quote) — Enterprise Inadequately Pled Where Plaintiffs Fail to Name the Common Purpose, Explain How the Relationships Among the Defendants Allowed Them to Advance That Purpose, Or Specify the Period of Time Sufficient to Achieve That Purpose — In a Particular Case, the Pattern of Racketeering May Be Sufficient to Infer the Existence of an Association-in-Fact Enterprise, But Pattern Does Not Necessarily Establish Enterprise — A RICO Conspiracy May Exist Regardless of Whether the Substantive RICO Violation Is Consummated, But the Substantive Violation Must Be Adequately Pled

RICO: (1) Claim Accrued When Plaintiff Suffered, and Was Aware of, Her Injury — Overt Retaliation in Her Employment As A Result of Reporting Another Employee’s Sexual Misconduct — Not When a Report Confirming that Misconduct Later Became Public; (2) Inhouse Lawyer’s Conclusion No Sexual Misconduct Occurred Is a Mere Expression of a Legal Conclusion, Not Deception Warranting SOL Reprieve Due to Equitable Tolling or Fraudulent Concealment — Plaintiff Exhibited Lack of Diligence in Failing to Consult Own Counsel or Challenge Inhouse Counsel’s Conclusion; (3) Causation: Plaintiff Must Prove Her Injuries Were Directly Caused by the Predicate Acts — (4) Concealment of Report Commissioned by Employer Directly Harmed Employer (by Exposing It to Liability) and Victims of Sexual Misconduct, and Only Indirectly Harmed Plaintiff Who Suffered Retaliation in Her Employment for Reporting the Misconduct

RICO: Without Injury to Business or Property, Injury Resulting from RICO Violation Is Not Actionable under RICO — Meaning of “Property” in § 1964(c) — Meaning of “Business” in § 1964(c) — Mere “Expectancy Interests” ≠ Business or Property — Loss of NCAA Eligibility = Loss of a Status, Not Loss of Property — Pecuniary Losses (Here, Attorney’s Fees) Flowing from a Non-Cognizable Injury Are Not Recoverably via RICO

RICO: Enterprise Not Sufficiently Distinct from Defendant Where Enterprise Allegedly Consisted of the Defendant Corporation, Corporate Employees, Their Counsel and “Friends”

FRAP 38 Sanctions Should Not Lightly Be Awarded on the Ground That an Incorrect Argument Was Frivolous — “An Appeal Can Be Weak, Indeed Almost Hopeless, Without Being Frivolous” (Good Quote) — There Must Be “No Legitimate Basis for Pursuing the Appeal” (Good Quote)

Severe Emotional Distress and Trauma ≠ RICO Injury — Parents’ Voluntary Financial Support of Adult Daughter Who Was Forced to Sign Over Her Annuity in Violation of RICO Not Proximately Caused by RICO Violation — Injury Is Derivative, Not Direct (Intimation of Different Result if Financial Support Required by Law) — RICO Injury Is Requirement for Statutory Standing (12(b)(6) Issue), Not Constitutional Standing (12(b)(1) Issue)

RICO — Neither Filing a Complaint Nor Issuing a Press Release Constitutes Wire Fraud — Litigation Privilege Is Absolute and Bars All Tort Claims Other Than Malicious Prosecution — Abuse of Process Claim Barred (California Law)

Archives
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

New York Office

© 2024 Joseph Hage Aaronson LLC  
Disclaimer | Attorney Advertising Notice | Legal Notice