Opinion
23Civ.4886 (DEH) (GS)
06-25-2024
ROBERT MATHURA, Plaintiff, v. SOCIAL SECURITY ADMINISTRATION, Defendant.
REPORT AND RECOMMENDATION
GARY STEIN, United States Magistrate Judge
Plaintiff Robert Mathura (“Mathura” or “Plaintiff”), proceeding pro se, brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of multiple decisions by the Social Security Administration (“SSA” or “Defendant”) denying claims for retirement income benefits. Defendant has filed a motion to dismiss, or in the alternative, for summary judgment. (Dkt. No. 13).
For the reasons set forth below, the undersigned respectfully recommends that (1) Defendant's motion for summary judgment be GRANTED; and (2) this case be remanded to SSA for Plaintiff to have an opportunity to request a hearing before an Administrative Law Judge.
The facts in this section are based on the evidence submitted as part of Defendant's motion as well as Plaintiff's opposition thereto and Plaintiff's Complaint. (See Dkt. Nos. 1, 14-16, 20).
A. Plaintiff's Applications for Social Security Benefits
Plaintiff, a resident of the Bronx, New York, has filed this lawsuit using the name Robert Mathura. (Compl. at 1, 3). However, Plaintiff has, on separate occasions, received “two valid Social Security Numbers” (“SSN”) using two different names and dates of birth (“DOB”). (Dkt. No. 15 (Declaration of Andrea Wilder (“Wilder Decl.”) ¶ 2(a)). Specifically, in April 1971, Plaintiff received an SSN assigned to “Luis Robert Locke” with a DOB of April 3, 1940 (“SSN No. 1”). (Id. & Ex. A.). Then, in April 1978, SSA assigned a separate SSN to “Robert Locke Matura” with a DOB of April 3, 1950 (“SSN No. 2”). (Id. & Ex. B).
On July 6, 2011, Plaintiff applied for retirement insurance benefits using SSN No. 2 (the “July 6, 2011 Application”). (Id. ¶ 2(b)). Less than a week later, SSA denied this application “due to insufficient evidence to prove Plaintiff had attained age 62.” (Id. ¶ 2(c) & Ex. D). When SSA issued this denial, the agency informed Plaintiff that he had 60 days to appeal, and that he could file a “new application at any time, but . . . filing a new application is not the same as filing an appeal.” (Id.).
On September 12, 2011, Plaintiff filed an appeal, known in SSA parlance as a “request for reconsideration.” (Id. ¶ 2(d) & Ex. D). A month later, Plaintiff filed a second application for retirement insurance benefits again using SSN No. 2 (the “October 31, 2011 Application”). (Id. ¶ 2(e)). As part of this application, Plaintiff submitted the following documents: a Belize birth certificate with the name “Luis Robert” with a DOB of April 3, 1940; a United States resident alien card in the name of “Mahabharrattamamathura, Robert”; a paystub and ID card from Columbia University in the name of “Robert Mathura”; a Queens College ID card in the name of “Robert Locke-Mathura” associated with SSN No. 1; and a statement from Plaintiff explaining that “he worked for several different companies” between 1971 and 2007 and used three different SSNs, including SSN No. 1 and SSN No. 2, as well as an SSN that had been assigned to a different individual. (Id. & Exs. F & G).
The October 31, 2011 Application was denied on December 3, 2011 because SSA “determined that [Plaintiff's] correct DOB is April 3, 1950.” (Id. ¶ 2(f); see also id. Ex. H). Like the initial denial of Plaintiff's July 6, 2011 Application, SSA's denial of the October 31, 2011 Application informed Plaintiff that he had 60 days to appeal the decision, and that he could file a “new application at any time, but filing a new application is not the same as appealing this decision.” (Id. Ex. H at 2). Plaintiff did not appeal this decision.
Nearly ten years later, Plaintiff submitted a third application for retirement insurance benefits-again using SSN No. 2-on February 18, 2022 (the “2022 Application”). (Id. ¶ 2(h) & Ex I). As with the July 6, 2011 Application, SSA denied the 2022 Application “due to insufficient evidence to prove that Plaintiff had attained age 62.” (Id. ¶ 2(i) & Ex J). And, as with both of his previous initial denials, SSA informed Plaintiff that he had 60 days to appeal, and that he could file a “new application at any time, but filing a new application is not the same as appealing this decision.” (Id. Ex. J). Plaintiff did not appeal the denial of his 2022 Application. (Id. ¶ 2(j)).
Meanwhile, Plaintiff's appeal of SSA's initial decision denying his July 6, 2011 Application fell through an administrative black hole. More than twelve years after the initial denial of the July 6, 2011 Application, and after the filing of the instant action on June 9, 2023, SSA's Northeastern Program Service Center, on October 8, 2023, affirmed its July 2011 denial decision “due to insufficient proof of Plaintiff's identity, age, and lawful presence in the United States.” (Id. ¶ 2(n) & Ex. K). The agency's “Notice of Reconsideration” informed Plaintiff that if he disagreed with this decision, he had 60 days to request a hearing before an Administrative Law Judge (“ALJ”). (Ex. K at 1).
According to SSA, Plaintiff has never requested a hearing before an ALJ with respect to the July 6, 2011 Application, the October 31, 2011 Application, or the 2022 Application. (Id. ¶¶ 2(j), (k); Dkt. No. 16 ¶ 20).
Finally, Plaintiff's Complaint states that SSA “refused to correct Plaintiff's [DOB]” in 2007 and further states that, in 2023, he “applied again for his social security benefits and SSA did not reply.” (Compl. at 5). SSA has “diligent[ly]” searched for records related to these instances and cannot find any documentation to corroborate Plaintiff's claims that he made a request in 2007 or filed an application in 2023. (Wilder Decl. ¶¶ 2(1), (m)).
B. Plaintiff's Allegations and This Action's Procedural History
Plaintiff initiated this action against SSA on June 9, 2023. (See generally Compl.). Liberally construed, the standard form, handwritten Complaint (1) sets forth a claim for benefits under 42 U.S.C. § 405(g) related to the denials of Plaintiff's June 6, 2011 Application, October 31, 2011 Application, and 2022 Application as well as the denial of his purported 2023 application; (2) seeks a writ of mandamus for SSA to correct certain demographic information about Plaintiff; and (3) alleges constitutional claims for discrimination based on alienage and age. In the subsection of the Complaint labeled “[r]elief,” Plaintiff “demands that the SSA correct [his] [DOB] to be April 3, 1940 [as reflected in SSN No. 1], and that SSA pay [Plaintiff] his due Social Security benefits as of March 2011 when SSA wrongfully denied the payments.” (Id. at 6).
Plaintiff also attaches to the Complaint a separate draft complaint purportedly ready to be filed in state court. (Id. at 8-10).The attachment repeats many of the same allegations with respect to Plaintiff's 2011, 2022, and (alleged) 2023 applications for retirement insurance benefits. As relevant here, the attachment also alleges that the Department of Motor Vehicles wrongfully refused to renew Plaintiff's driver's license because his DOB of April 3, 1940 did not match SSA data showing a DOB of April 3, 1950 and that SSA's actions have rendered Plaintiff “unable to obtain his and his family's very means of subsistence . . . to move out of poverty.” (Id. at 8-9). The draft complaint requests, inter alia, that the court “correct [Plaintiff's] date of birth to” April 3, 1940 and “[Plaintiff's] name [to] Mathura, not Matura.” (Id. at 9).
The Court is unaware of whether Plaintiff ever filed this complaint in the Supreme Court of the State of New York, County of New York.
Following multiple extensions of time to respond to Plaintiff's Complaint (see Dkt. Nos. 7-10), Defendant moved to dismiss the Complaint, or, in the alternative, for summary judgment, on October 25, 2023. (Dkt. No. 13). Defendant primarily argues that judicial review of Plaintiff's claims is barred because Plaintiff has not exhausted his administrative remedies with respect to his applications. (Dkt. No. 14 (“Def. Br.”) at 2, 9-13). In addition to a memorandum of law in support of its motion, Defendant submitted a declaration from Assistant Regional Commissioner Andrea Wilder, with supporting exhibits, and a Local Rule 56.1 Statement of Undisputed Facts with an attached Local Rule 12.1 Notice to Pro Se Litigant Who Opposes a Rule 12 Motion Supported by Matters Outside the Pleadings. (Dkt. Nos. 15, 16).
In a letter dated November 7, 2023, Defendant asked for Plaintiff to be afforded an additional two weeks to respond to its motion because the agency had failed to serve Plaintiff with its moving brief due to a clerical oversight. (Dkt. No. 18). Given the government's error, the Court gave Plaintiff over a month to respond to Defendant's motion from the date of service thereof on Plaintiff. (See Dkt. Nos. 17, 19).
Plaintiff submitted a timely opposition on December 11, 2023 in the form of a handwritten affirmation and various documents in support of his position that his birth date is April 3, 1940, his legal name is Robert Mathura, and SSA's past denials of his claims were wrongful. (Dkt. No. 20 (Affirmation of Robert Mathura in Opposition (“Opposition” or “Opp.”))). Plaintiff's Opposition does not dispute SSA's contention that he has not sought a hearing before an ALJ in connection with any of his applications. (Id.).
Plaintiff's Opposition requests that certain pages of five exhibits attached to the Wilder Declaration be stricken from the record as irrelevant. (Opp. at 9). Plaintiff does not, however, claim that the information on these pages causes him any undue prejudice, and it appears Defendant was simply (and appropriately) providing the Court with complete versions of the documents in question. Accordingly, Plaintiff's request is denied.
Defendant submitted a timely reply brief on January 17, 2024. (Dkt. No. 23 (“Reply”)). Defendant's Reply asserts that, as of the filing of that document, Plaintiff had not sought a hearing before an ALJ with respect to SSA's October 8, 2023 Notice of Reconsideration, despite a December 12, 2023 deadline to seek such relief. (Id. at 7 & n.5).
LEGAL STANDARDS
A. Motion to Dismiss for Failure to State a Claim
Under Fed.R.Civ.P. 12(b)(6), a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim . . . that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted).
In considering a motion to dismiss under Rule 12(b)(6), the Court must “accept[] all factual allegations in the complaint as true” and “draw[] all reasonable inferences in the plaintiff's favor.” Palin v. New York Times Co., 940 F.3d 804, 809 (2d Cir. 2019) (citation omitted). Courts need not, however, consider “conclusory allegations or legal conclusions couched as factual allegations.” Dixon v. von Blanckensee, 994 F.3d 95, 101 (2d Cir. 2021) (citation omitted); see also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”).
“A pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (cleaned up). Accordingly, the Court must “read the pleadings of a pro se plaintiff liberally” and construe them “to raise the strongest possible arguments that they suggest.” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (cleaned up). Nonetheless, pro se pleadings still “must contain factual allegations sufficient to raise a ‘right to relief above the speculative level.'” Dawkins v. Gonyea, 646 F.Supp.2d 594, 603 (S.D.N.Y. 2009) (quoting Twombly, 550 U.S. at 555).
B. Summary Judgment
“Granting summary judgment is appropriate when ‘the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'” Pantoja v. Enciso, No. 18 Civ. 11842 (PAE) (GWG), 2019 WL 6704684, at *4 (S.D.N.Y. Dec. 10, 2019) (quoting Fed.R.Civ.P. 56(a)), R&R adopted, 2020 WL 70919 (S.D.N.Y. Jan. 6, 2020). “A genuine issue of material fact exists ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “[O]nly admissible evidence need be considered by the trial court in ruling on a motion for summary judgment.” Id. (quoting Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997)).
The party moving for summary judgment “bears the initial burden of establishing that no genuine factual dispute exists, and, if satisfied, the burden shifts to the nonmoving party to ‘set forth specific facts showing that there is a genuine issue for trial,' . . . and to present such evidence that would allow a jury to find in his favor.” Minus v. City of N.Y., 488 F.Supp.3d 58, 63 (S.D.N.Y. 2020) (quoting Anderson, 477 U.S. at 256). A court must view the facts “in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (cleaned up). “‘[I]f there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party,' summary judgment must be denied.” Minus, 488 F.Supp.3d at 63 (quoting Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002)).
When considering a motion for summary judgment, the court affords a pro se litigant “special solicitude.” Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988). As with a motion to dismiss, this “special solicitude” includes liberally construing the pro se party's submissions and interpreting them to raise the strongest arguments they suggest. See Alli v. City of N.Y., No. 21 Civ. 4866 (ALC) (SN), 2023 WL 6393403, at *3 (S.D.N.Y. Sept. 29, 2023). “This special solicitude is not unlimited, however, and does not relieve a party of his or her duty to meet the requirements necessary to defeat a motion for summary judgment.” Id. (cleaned up). Like any other litigant, “a pro se plaintiff cannot defeat a motion for summary judgment by simply relying on the allegations of his complaint; he must present admissible evidence from which a reasonable jury could find in his favor.” Minus, 488 F.Supp.2d at 60 n.2 (cleaned up); see also Veras v. Jacobson, No. 18 Civ. 6724 (KMK), 2022 WL 2133842, at *4 (S.D.N.Y. June 14, 2022) (“a pro se party's bald assertions unsupported by evidence are insufficient to overcome a motion for summary judgment”) (cleaned up).
“SSA and its Commissioner are arms of the federal government and are protected from suit by the doctrine of sovereign immunity, except where they have consented to being sued.” Williams v. Com'r of Soc. Sec., No. 23 Civ. 1455 (LJL), 2024 WL 757264, at *3 (S.D.N.Y. Feb. 23, 2024). “Congress waived SSA's immunity from suit in § 205(g) of the [Social Security Act, codified at] 42 U.S.C. § 405(g).” Id.
Section 405(g) provides: “[a]ny individual, after any final decision of the [Commissioner] . . . made after a hearing to which he was a party, . . . may obtain a review of such decision by a civil action” in federal court. 42 U.S.C. § 405(g) (emphasis added). “This provision clearly limits judicial review to a particular type of agency action, a final decision of the [Commissioner] made after a hearing.” Califano v. Sanders, 430 U.S. 99, 108 (1977) (cleaned up).
A “final decision” of the Commissioner has two components: “(1) a jurisdictional, non-waivable requirement that a claim for benefits has been presented to the agency, and (2) a waivable requirement that the administrative remedies prescribed by the Commissioner have been exhausted.” Escalera v. Comm'r of Soc. Sec., 457 Fed.Appx. 4, 5 (2d Cir. 2011) (citing Bowen v. City of N.Y., 476 U.S. 467, 483 (1986)); Williams, 2024 WL 757264, at *3.
DISCUSSION
The Court first addresses whether to convert Defendant's motion from a motion to dismiss to one for summary judgment. After concluding that conversion is appropriate, the Court next addresses Defendant's arguments for dismissal and finds, after a review of the evidence submitted therewith and in opposition thereto, as well as Plaintiff's Complaint, that Defendant is entitled to summary judgment as a matter of law. Despite this finding, the Court further recommends granting Plaintiff additional time to request a hearing before an ALJ.
A. Because Defendant's Motion Relies on Materials Outside the Pleadings, Conversion to Summary Judgment Is Warranted
On a motion to dismiss, “the Court's review is circumscribed-it is generally prohibited from looking beyond the pleadings.” Henderson v. Alvarez, No. 17 Civ. 3977 (AJN), 2020 WL 2571013, at *3 (S.D.N.Y. May 21, 2020). A court may consider “the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). It may also consider materials deemed “integral” to the complaint or that are “an appropriate subject for judicial notice.” Glob. Network Communs. Inc. v. City of N.Y., 458 F.3d 150, 156 (2d Cir. 2006). Moreover, where, as here, a pro se plaintiff submits “factual allegations” in his opposition papers, those allegations “may [also] be considered as supplementing the Complaint, at least to the extent they are consistent” with the Complaint's allegations. Harris v. TD Ameritrade, Inc., 338 F.Supp.3d 170, 187 (S.D.N.Y. 2018) (cleaned up).
Here, however, Defendant has submitted in support of its motion the Wilder Declaration and its accompanying exhibits, which fall into none of these categories. These materials, which are central to Defendant's arguments for dismissal, assert extrinsic facts regarding Plaintiff's prior applications for benefits, SSA's treatment of those applications, and Plaintiff's failure to avail himself of administrative remedies to challenge SSA's determinations. Defendant does not specifically argue that the Wilder Declaration may be considered on its Rule 12(b)(6) motion, which is understandable: the declaration is clearly “evidentiary material [] outside the pleadings [that] may not properly be considered on a motion to dismiss under Rule 12(b)(6).” Murray v. Dabo, No. 22 Civ. 4026 (VEC) (GS), 2024 WL 1421119, at *6 (S.D.N.Y. Feb. 2, 2024), R&R adopted, 2024 WL 964599 (S.D.N.Y. Mar. 5, 2024).
SSA's Rule 56.1 Statement principally relies on the Wilder Declaration (Dkt. No. 16), and SSA cites to the Wilder Declaration seven times in the argument section of its moving brief (Def. Br. at 9, 1114).
Thus, the Court can only consider the Wilder Declaration if it chooses to convert the motion to one for summary judgment under Rule 56, as Defendant requests in the alternative. (Def. Br. at 2-3, 6-7, 11 & 15); see Friedl v. City of N.Y., 210 F.3d 79, 83 (2d Cir. 2000) (when arguments reliant on materials outside the pleadings are made on a motion to dismiss, “a district court must either exclude the additional material and decide the motion . . . or convert the motion to one for summary judgment under Fed.R.Civ.P. 56 and afford all parties the opportunity to present supporting material”) (cleaned up); accord, e.g., Henderson, 2020 WL 2571013, at *4; Alkholi v. Macklowe, No. 17 Civ. 16 (DAB), 2017 WL 6804076, at *5 (S.D.N.Y. Dec. 22, 2017); see also Glob. Network Communs., 458 F.3d at 156 (holding that district court erroneously considered external material “outside plaintiff's complaint” in its ruling granting defendants' 12(b)(6) motion and should instead have converted motion to one for summary judgment).
Under the Federal Rules of Civil Procedure, “[i]f . . . matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56,” and “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d). When a “party is proceeding pro se, such notice ‘is particularly important because the pro se litigant may be unaware of the consequences of his failure to offer evidence bearing on triable issues. Accordingly, pro se parties must have unequivocal notice of the meaning and consequences of conversion to summary judgment.'” Henderson, 2020 WL 2571013, at *5 (quoting Hernandez v. Coffey, 582 F.3d 303, 307-08 (2d Cir. 2009) (cleaned up)).
Defendant met this “unequivocal notice” requirement by providing Plaintiff with a Local Civil Rule 12.1 Notice to Pro Se Litigant Who Opposes a Rule 12 Motion Supported by Matters Outside the Pleadings. (See Dkt. No. 16 Ex. 1). Defendant's Notice informed Plaintiff of all the information required under Local Civil Rule 12.1. (Id.). Courts subject to Local Civil Rule 12.1 “uniformly hold” that such a notice “support[s] conversion, even when the non-moving party is [proceeding] pro se.” Henderson, 2020 WL 2571013, at *5. The same holds true in Social Security cases. See, e.g., Nunez v. Saul, No. 19 Civ. 170 (PED), 2020 WL 3962046, at *2-3 (S.D.N.Y. July 13, 2020) (finding conversion appropriate to consider information outside of pleadings that was “integral to [the] resolution of [SSA's] motion” where notice to pro se plaintiff was sufficient); Saldana v. Astrue, No. 07 Civ. 5893 (DLC), 2008 WL 534762, at *2 & n.1 (S.D.N.Y. Feb. 25, 2008) (converting motion to summary judgment where notice was provided to pro se litigant so that court could consider affidavit from SSA supervisor demonstrating that court lacked jurisdiction).
Consistent with “the uniform practice of courts in this Circuit,” Henderson, 2020 WL 2571013, at *5, and in light of the fact that Plaintiff responded to Defendant's motion with a detailed, handwritten affirmation accompanied by some of the same evidence referenced in the Wilder Declaration, as well as additional evidence (see generally Opp.), the Court thus recommends converting Defendant's motion to one for summary judgment and continues its analysis accordingly.
B. This Court Lacks Jurisdiction Because There Has Been No Final Decision by SSA That Is Subject to Judicial Review
1. Plaintiff Has Not Exhausted His Administrative Remedies
Social Security claimants “must generally proceed through a four-step process before they can obtain review from a federal court.” Smith v. Berryhill, 139 S.Ct. 1765, 1772 (2019). As described by the Supreme Court:
First, the claimant must seek an initial determination as to his eligibility. Second, the claimant must seek reconsideration of the initial determination. Third, the
claimant must request a hearing, which is conducted by an ALJ. Fourth, the claimant must seek review of the ALJ's decision by the Appeals Council.Id.; see also Escalara, 457 Fed.Appx. at 6; Williams, 2024 WL 757264, at *4. “Only after a plaintiff has completed these steps and obtained a decision from the Appeals Council will the decision become final and potentially eligible for district court review.” Humber v. Comm'r of Soc. Sec., No. 14 Civ. 5520 (JCF), 2015 WL 3972270, at *3 (S.D.N.Y. June 29, 2015) (cleaned up).
Plaintiff's Complaint outlines four separate attempts to present a claim for benefits to SSA: two in 2011, one in 2022, and one in 2023. (Compl. at 5, 8-9). As for the last of these, SSA attests that it has “diligent[ly]” searched for an application for benefits filed by Plaintiff in 2023 and cannot find one. (Wilder Decl. ¶ 2(m)). Plaintiff has not provided a copy of any 2023 application or any other evidence to suggest he filed one with SSA.
Plaintiff also claims SSA wrongfully refused in 2007 to correct his date of birth to April 3, 1940 and has submitted a copy of an application signed by him and dated July 5, 2007 seeking such relief. (Compl. at 5, 8; Opp. Ex. J at 1). SSA claims it has no record of Plaintiff making such a request in 2007. (Wilder Decl. ¶ 2(1)). Even assuming that Plaintiff did submit his application in 2007, he does not allege that he took any further action to exhaust his administrative remedies or that SSA issued any decision, let alone a final decision, with respect to this application. And even if a final decision was issued in 2007, the 60-day statute of limitations for challenging that determination in federal court, see 42 U.S.C. § 405(g), has long since expired. Accordingly, the dispute over whether Plaintiff filed an application for a change of his date of birth in 2007 is immaterial to resolution of the present motion.
Instead, it appears from both the draft state court complaint attached to Plaintiff's Complaint and from Plaintiff's Opposition that he is referring to a March 2023 letter he wrote to Senator Schumer complaining about SSA's refusal to award him retirement benefits. (Compl. at 9; Opp. at 6-7 & Ex. N). Although the letter states that Plaintiff, “[f]or the sixth time,” is “applying for my money-retirement benefits,” and although “SSA” (along with other elected officials and newspapers) are shown as being copied on the letter (Ex. N at 3 (emphasis omitted)), this is insufficient to raise a genuine issue of fact as to whether Plaintiff filed a proper application for benefits with SSA in 2023. See Carolyn A. Kubitschek & Jon C. Dubin, Social Security Disability Law and Procedure in Federal Court § 7:22, at 1252-53 (2023) (claimant seeking benefits “must file a written application at the local Social Security District Office or use the SSA's website to submit an electronic application to the SSA”) (citation omitted). As for the purported 2023 application, therefore, Plaintiff has not satisfied even the first element of the “final decision” requirement: that “a claim for benefits” was “presented to the agency.” Escalara, 457 Fed.Appx. at 5 (cleaned up).
Even if that were not the case, Plaintiff has also failed to submit any evidence indicating that SSA issued a decision on the purported 2023 application or that he exhausted his administrative remedies with respect to this application. Hence, the second part of the “final decision” requirement is also not satisfied.
On the other hand, there is no dispute that the July 6, 2011 Application, the October 31, 2011 Application, and the 2022 Application were all filed with SSA and that, through them, Plaintiff presented a claim for benefits to the agency, satisfying the first element. (Wilder Decl. Exs. C, F, I; Opp. Exs. B-H). Defendant, however, contends that there is no genuine dispute that Plaintiff failed to exhaust his administrative remedies with respect to any of these three applications and that, as a result, the second element of the “final decision” requirement has not been satisfied. (See Def. Br. at 9-11). After reviewing the record, the Court agrees.
With respect to the October 31, 2011 Application and the 2022 Application, both Plaintiff and Defendant have presented evidence of SSA's denial of these two applications on December 3, 2011 and July 16, 2022, respectively. (Wilder Decl. Exs. H, J; Opp Exs. F, H). Each of these standard denial letters stated that Plaintiff had a right to appeal SSA's denial within 60 days by filing a request for reconsideration. (Wilder Decl. Ex. H at 1; Ex. J at 1). SSA has submitted evidence that Plaintiff did not seek reconsideration of either denial (Id. ¶¶ 2(g), 2(j)) or request an administrative hearing before an ALJ (Id. ¶ 2(k) (“[a] diligent review of Plaintiff's Social Security records does not show that Plaintiff requested a hearing before an [ALJ] with respect to any of his applications”)). Plaintiff has submitted no evidence to the contrary. Indeed, Plaintiff does not contend he sought further administrative review of the denials of his October 31, 2011 Application and 2022 Application. Thus, Plaintiff did not reach the second step of the mandatory four-step process with respect to these applications.
Plaintiff's July 6, 2011 Application has a different procedural history. Here, Plaintiff did complete the second step: after the SSA denied his application on July 12, 2011, Plaintiff appealed the denial by letter dated September 12, 2011. (Wilder Decl. Ex. E). Defendant does not dispute that this appeal was procedurally proper and timely filed within the 60-day deadline. (See Def. Br. at 3; Wilder Decl. ¶ 2(d)). So far as the record reflects, SSA took no action on that appeal for more than twelve years and it remained pending when Plaintiff filed this action in June 2023.
Nonetheless, the fact remains that SSA has not issued a “final decision” on Plaintiff's July 6, 2011 Application. Plaintiff has neither requested nor received an administrative hearing on the denial of this application. (Reply at 7). When the agency, on October 8, 2023, belatedly affirmed its denial of benefits in response to the request for reconsideration Plaintiff submitted in September 2011, it informed him that he had 60 days to request a hearing before an ALJ. (Wilder Decl. Ex. K at 1). Although Plaintiff had the opportunity to request a hearing until around the same time that his opposition to the instant motion was due, SSA represents in its Reply, filed January 17, 2024, that Plaintiff never made such a request. (Reply at 7-8). And in the five months since the instant motion has been fully briefed, Plaintiff has not contested Defendant's contention or updated the Court with additional facts regarding the July 6, 2011 Application. Thus, Plaintiff has not completed the third or fourth steps of the four-step process with regard to this application.
Based on the foregoing uncontroverted evidence before the Court, Plaintiff has not “pursued his claim at all requisite levels of the administrative process, and he has not satisfied the exhaustion requirement.” Humber, 2015 WL 3972270, at *4 (finding failure to exhaust remedies where a claimant “sent additional letters in which he inquired about his retroactive benefits but did not request a hearing”) (citation omitted); see also Williams, 2024 WL 757264, at *2, *4 (finding failure to exhaust remedies where, even though SSA failed to schedule an ALJ hearing for nearly four years, it held a hearing after plaintiff filed suit and plaintiff did not take an appeal to the Appeals Council); Davis v. Comm'r of Soc. Sec., No. 15 Civ. 6301 (AT) (FM), 2016 WL 3390586, at *5 (S.D.N.Y. Apr. 18, 2016) (finding failure to exhaust remedies, despite SSA's “apparent[] fail[ure] to act on” plaintiff's reconsideration requests, where SSA denied requests after filing of lawsuit and plaintiff “consequently is now at the stage where she may request a hearing before an ALJ”); Oji v. Soc. Sec. Admin., No. 12 Civ. 7338 (KMK) (PED), 2015 WL 6741863, at *14-15 (S.D.N.Y. Nov. 4, 2015) (although SSA acknowledged “it may have failed to act on” plaintiff's timely request for an ALJ hearing, it was undisputed that plaintiff “has not yet obtained a final decision on this issue and, therefore, [the] claim . . . [was] unexhausted”). Accordingly, Plaintiff's claim for benefits “is not a challenge to a ‘final decision' under § 405(g) that is subject to review by this Court.” Humber, 2015 WL 3972270, at *4.
2. The Exhaustion Requirement Has Not Been Waived
“In limited circumstances, the exhaustion requirement can be waived.” Eichie v. Kijakazi, No. 21 Civ. 10712 (LJL), 2023 WL 1438327, at *6 (S.D.N.Y. Feb. 1, 2023). In deciding whether to waive the exhaustion requirement in Social Security benefits cases, courts consider the following factors: “(1) whether the claim is collateral to a demand for benefits; (2) whether exhaustion would be futile; and (3) whether the plaintiff[] would suffer irreparable harm if required to exhaust their administrative remedies before obtaining relief.” Williams, 2024 WL 757264, at *4 (quoting Abbey v. Sullivan, 978 F.2d 37, 44 (2d Cir. 1992)). These factors are not to be applied mechanically; rather, the court must “balance[] the competing considerations to arrive at a just result,” Id. (citation omitted), bearing in mind that “[e]xhaustion is the rule, wavier the exception.” Abbey, 978 F.2d at 44.
These factors militate against a finding of waiver here. First, “[a] claim is collateral to claims for benefits if the plaintiff ‘neither sought nor [is] awarded benefits in the District Court.'” Williams, 2024 WL 757264, at *4 (quoting Bowen v. City of N.Y., 476 U.S. 467, 483 (1986)). Here, Plaintiff's claim is not “collateral” to his claim for benefits because the primary relief sought by Plaintiff is for “SSA [to] pay petitioner his due social security benefits as of March 2011 when SSA wrongfully denied the payments.” (Compl. at 6). See Escalera, 457 Fed. App'x at 6 (“Escalera's claim is not collateral to his demand for benefits, as it involves a demand for benefits and investigation into his wage earnings”); Pavano v. Shalala, 95 F.3d 147, 150 (2d Cir. 1996) (plaintiffs' claims not collateral where “[t]he gravamen of their complaint was that the Government wrongly denied them benefits”); Williams, 2024 WL 757264, at *4.
Second, to show futility, “‘a plaintiff must demonstrate that adequate remedies are not reasonably available or that the wrongs alleged could not or would not have been corrected by resort to the administrative hearing process.'” Gonzalez v. Kijakazi, No. 21-1449, 2022 WL 2297138, at *2 (2d Cir. June 27, 2022) (summary order) (quoting Coleman v. Newburgh Enlarged Cty. Sch. Dist., 503 F.3d 198, 205 (2d Cir. 2007)). Plaintiff has made no such showing. Instead, Plaintiff recounts his difficulties in dealing with SSA stretching back many years (see Compl. at 5, 8-9; Opp. at 1-4) and maintains that he did not fail to exhaust his administrative remedies “because since 2007 SSA failed to treat the Plaintiff fairly” and “continued to heap up obstacles so that Plaintiff got nowhere.” (Opp. at 10). He further argues that in 2011, he was “made to believe he had exhausted all administrative remedies based on . . . age,” an apparent reference to SSA's denial of his October 31, 2011 Application, which reaffirmed its prior denial on the ground that Plaintiff's correct DOB is April 3, 1950 and that Plaintiff hence had not reached age 62. (Id. at 6; see Wilder Decl. Exs. D, H).
These arguments are unavailing. Plaintiff had multiple occasions to correct SSA's alleged error through the administrative hearing process but did not avail himself of those opportunities. The denial of Plaintiff's October 31, 2011 Application expressly advised him of his right to request reconsideration within 60 days, and Plaintiff chose not to exercise that right. (Wilder Decl. ¶ 2(f) & Ex. H at 1). Moreover, as recently as July 2022, Plaintiff received a denial letter explicitly stating he had 60 days to request reconsideration of the denial of his 2022 Application, which he again did not do. (Wilder Decl. ¶ 2(i), (j) & Ex. J). As SSA correctly notes, “a claimant's pursuit of administrative remedies can result in a reversal or amendment of an initial agency decision.” (Def. Br. at 12). Those remedies include a hearing before an ALJ who would be “charged with developing the factual record, conducting a non-adversarial administrative hearing, and serving as an impartial decisionmaker.” Schillo v. Kijakazi, 31 F.4th 64, 69 (2d Cir. 2022). Plaintiff, who never attempted to obtain such a hearing, “has not shown that a hearing before an ALJ and, if necessary, subsequent review by the Appeals Council would be futile.” Humber, 2015 WL 3972270, at *4.
Third, Plaintiff has failed to demonstrate irreparable harm. He asserts, both in his Complaint and in his Opposition, that he is experiencing poverty due to his inability to collect benefits, and that he is of advanced age. (Compl. at 9; Opp at 5). The Court is sympathetic to Plaintiff's circumstances. Unfortunately, however, “[i]rreparable harm is a high bar ‘where the harm suffered in the interim would be irreparable in the sense that no post hoc relief would be adequate.'” Williams, 2024 WL 757264, at *4 (quoting Smith v. Schweiker, 709 F.2d 777, 780 (2d Cir. 1983)). For example, irreparable harm may be found where the denial of benefits “would subject a plaintiff to deteriorating physical health.” Id.; see Abbey, 978 F.2d at 46.
Despite Plaintiff's advanced age of either 84 or 74, he makes no argument that a further delay in receiving benefits would be detrimental to his physical health or cause some other form of irreparable harm. He has not met the “exacting standard for waiver,” which requires irreparable harm and not mere “hardship,” Okocha v. Disman, No. 11 Civ. 1854 (LTS) (JLC), 2012 WL 6860892, at *11 (S.D.N.Y. Oct. 1, 2012) (“[t]he fact that [plaintiff was] disabled and indigent, without further detail regarding specific and urgent financial or medical needs, does not permit the Court to conclude that requiring him to exhaust administrative remedies would pose irreparable harm justifying waiver”), R&R adopted, 2013 WL 163834 (S.D.N.Y. Jan. 15, 2013); see also Travis v. Comm'r of Soc. Sec., No 22 Civ. 8640 (JMF) (BCM), 2024 WL 496776, at *9 (S.D.N.Y. Jan. 22, 2024) (to show irreparable harm, plaintiff must raise “at least a colorable claim that because of his physical condition and dependency upon the disability benefits, an erroneous termination would damage him in a way not recompensable through retroactive payments”) (citation omitted).
In sum, the relevant waiver factors do not support treating this case as an exception to the normal rule requiring exhaustion of administrative remedies.
3. SSA's Delay in Responding to Plaintiff's Appeal of the July 6, 2011 Application Does Not Excuse Plaintiff's Failure to Exhaust Administrative Remedies
Invoking the “doctrine of laches,” Plaintiff notes SSA's twelve-year delay in responding to his request for reconsideration of the denial of his July 6, 2011 Application and argues that it would be unjust and prejudicial to him to require exhaustion of remedies under these circumstances. (Opp. at 6). Some courts outside the Second Circuit have recognized inordinate delay by SSA as a basis for excusing exhaustion. See, e.g., Cost v. Soc. Sec. Admin., 770 F.Supp.2d 45, 50-51 (D.D.C. 2011) (“Courts in this district have excused the exhaustion requirement for delays in the administrative process of three or more years.”). These courts look at delay as evidence of futility under the traditional waiver analysis, see id. at 51 (“[a]rguably,” SSA's failure to act on plaintiff's request for a hearing “could be evidence that requiring exhaustion would be futile”), or perhaps as a standalone basis for excusing exhaustion, see Hall v. Sebelius, 689 F.Supp.2d 10, 23 n.7 (D.D.C. 2009) (“even if the Court were to find exhaustion not excusable on other grounds, the requirement would be excused for [plaintiff] on the basis of the SSA's delay”).
“Laches is an equitable defense available to a defendant who can show that the plaintiff has inexcusably slept on its rights so as to make a decree against the defendant unfair, and that the defendant has been prejudiced by the plaintiff's unreasonable delay in bringing the action.” Zuckerman v. Metropolitan Museum of Art, 928 F.3d 186, 190 (2d Cir. 2019). It does not apply here, strictly speaking, as it is Plaintiff who has brought this action against SSA, not the other way around. However, the Court understands and construes Plaintiff s reference to the doctrine as an argument that SSN's unreasonable delay makes it inequitable for SSN to seek dismissal of Plaintiffs Complaint on the basis of his failure to exhaust administrative remedies.
Support for such an approach within this Circuit appears lacking. For instance, courts in this District have faced similar situations where SSA failed to act for years on a plaintiff's request for administrative relief and only responded after the plaintiff filed a lawsuit. So long as the plaintiff was then able to pursue his or her claim within SSA, these courts have found the suit to be barred by the plaintiff's failure to exhaust his or her administrative remedies, notwithstanding SSA's delay. See Williams, 2024 WL 757264, at *4 (SSA failed to schedule ALJ hearing for nearly four years before lawsuit was filed; “[a]lthough the SSA's delay in granting Plaintiff a hearing is regrettable,” exhaustion requirement not excused); Oji, 2015 WL 6741863, at *19 (although SSA allegedly failed to act on request for ALJ hearing for more than three years before lawsuit was filed, “the SSA has represented that it currently is considering whether further administrative review of [the benefits] determination is warranted” and hence “there is no indication . . . that administrative exhaustion of this claim would be futile”); see also Bush v. Shalala, 94 F.3d 40 (2d Cir. 1996) (SSA's failure to make a detailed factual inquiry into plaintiff's claim for benefits over ten-year period did not justify overturning administrative decision and awarding benefits).
But even assuming inordinate administrative delay could justify an exception to the exhaustion requirement, the Court finds that such an exception is not warranted under the circumstances of this case. To be sure, SSA's failure to respond to Plaintiff's September 12, 2011 request for reconsideration until after Plaintiff filed this lawsuit, some twelve years later, is troubling. SSA does not explain its years of inaction and the agency's delay appears to be inexcusable. At the same time, however, nothing in the record indicates that Plaintiff took any steps after submitting his request on September 12, 2011 to prod the agency into action.Plaintiff seemed content to let his July 6, 2011 Application languish while he pursued his newly filed October 31, 2011 Application.
If prodding the SSA did not work, Plaintiff could have sought mandamus relief in federal court requiring the agency to issue a determination on his request for reconsideration. See Porco v. Saul, No. 20 Civ. 837 (TJM/TWD), 2021 WL 1131259, at *4 (N.D.N.Y. Feb. 22, 2021) (noting that “several district courts in New York have exercised mandamus jurisdiction to require the SSA to consider the plaintiff's request for reconsideration where the agency failed to act on those requests within a reasonable time”), R&R adopted, 2021 WL 1124720 (N.D.N.Y. Mar. 24, 2021).
More importantly, Plaintiff sought the same relief in his October 31, 2011 Application and, when that application was denied, failed to request reconsideration, an ALJ hearing, or any other administrative relief. He also sought the same relief in his 2022 Application and again failed to pursue any administrative avenues of relief after the initial denial of that application. Thus, the July 6, 2011 Application was not Plaintiff's only means of obtaining the benefits he seeks. He could have procured a hearing before an ALJ on either his October 31, 2011 Application or his 2022 Application. Under these circumstances, SSA's failure to timely respond to one of Plaintiff's three applications, regrettable as it may be, cannot be said to excuse Plaintiff's own failures to exhaust his administrative remedies.
Finally, the Court is in no position to make a benefits determination on the present record. Significant factual disputes exist and will need to be resolved as to Plaintiff's identity, actual DOB, lawful presence in the United States, and use of three different SSNs and different names, as well as the legal significance of these facts under SSA regulations. These disputes are best resolved-and must be resolved-in the first instance by an ALJ upon a fully developed record, followed by judicial review if Plaintiff still has not obtained the relief he seeks through the agency. Such sequencing is precisely what the doctrine of exhaustion of administrative remedies aims to accomplish. See Donnelly v. Controlled Application Rev. & Resol. Program Unit, 37 F.4th 44, 52 (2d Cir. 2022) (noting that doctrine's purposes are to (1) give the agency the “opportunity to correct its own mistakes . . . before it is haled into federal court” and (2) promote efficiency “by resolving claims out of court and by producing a useful record for subsequent judicial consideration”) (cleaned up); see also Escalera, 457 Fed.Appx. at 6-7 (“[a] final agency decision and developed written record would ensure a more complete review in federal court”).
Plaintiff “categorically maintains he gave SSA enough, adequate, sufficient and incontrovertible evidence as to his identity, age, and permanent immigrant status as the record shows” (Opp. at 10) and emphasizes a “Deed Poll” he executed and registered in Belize in 2004 that he claims definitively proves his true age and name (Id. at 2-4 & Ex. O). The Court does not doubt the sincerity of Plaintiff's firmly held views. But under the law, he must first attempt to convince SSA of the rightness of his position by completing all four steps of the administrative process before this Court may act.
C. Plaintiff's Claim Seeking Correction of His Name and DOB Should Be Dismissed
Plaintiff also complains of SSA's failure to recognize his correct name and birth date throughout his interactions with the agency. (See, e.g., Compl. at 5-6; Opp at 1-2 & Ex. N). He requests that the agency declare his name to be “Robert Mathura” and recognize that his DOB is April 3, 1940. (Compl. at 9). Construing this request as a claim for mandamus relief pursuant to 28 U.S.C. § 1361, the Court finds that Plaintiff is not entitled to such relief.
“For a Court to exercise mandamus jurisdiction, there must be ‘(1) a clear right in the plaintiff to the relief sought; (2) a plainly denied and preemptory duty on the part of the defendant to do the act in question; and (3) no other adequate remedy available.'” Eichie, 2023 WL 1438327, at *8 (quoting Lovallo v. Froehkle, 468 F.2d 340, 343 (2d Cir. 1972)). “[M]andamus is an extraordinary remedy” and “a party who seeks a writ of mandamus must show a ‘clear and indisputable right' to its issuance.” Escaler v. U.S. Citizenship & Immigration Servs., 582 F.3d 288, 292 (2d Cir. 2009) (quoting Miller v. French, 530 U.S. 327, 339 (2000)); see also Heckler v. Ringer, 466 U.S. 602, 616 (1984) (“The common-law writ of mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty.”).
Plaintiff has not satisfied those requirements here. Plaintiff has not shown a clear and indisputable right to the relief sought; as noted above, there are disputes over Plaintiff's correct legal name and his birth date that can only be resolved after a hearing. See Eichie, 2023 WL 1438327, at *8 (denying mandamus relief against SSA where “Plaintiff has not established a clear right either to a change in the distribution of back payments or to an alteration of Plaintiff's paperwork”). Moreover, as noted above, Plaintiff has not exhausted his remedies within SSA with respect to his claims about his name and date of birth. Plaintiff has thus “failed to show that ‘no other adequate remedy' is available to him.” Williams, 2024 WL 757264, at *5 (citation omitted); see also Escalera, 457 Fed.Appx. at 7 (mandamus unavailable where plaintiff “did not prove that no adequate remedy (i.e., completing the administrative process) was available”) (cleaned up). Thus, mandamus jurisdiction is unwarranted.
D. Plaintiff's Constitutional Claim Should Be Dismissed
Plaintiff's claim that SSA has discriminated against him on the basis of his age and alienage, in violation of the Equal Protection Clause, also fails as a matter of law. (See Compl. at 2).
As an initial matter, Plaintiff has neither pled nor adduced evidence of any facts to support this threadbare claim. But even if he had, such allegations “do not relieve plaintiff from the requirements of § 405(g) or provide any alternative basis on which this Court could exercise subject matter jurisdiction.” Travis, 2024 WL 496776, at *8. That is because “even a constitutional question that is connected to the action arises under the [Social Security] Act and must be channeled through the agency.” Id. (citation omitted). “Accordingly, judicial review of plaintiff's discrimination allegations can occur only after the Commissioner has made a final decision after a hearing.” Id. (declining to entertain claim that plaintiff's disability benefits were suspended because she came out as a transgender woman, in violation of her Fourteenth Amendment rights); see also Joan T. v. Comm'r of Soc. Sec., No. 3:22-CV-01251 (MPS), 2023 WL 2600199, at *7 (D. Conn. Mar. 22, 2023) (dismissing, in part for lack of jurisdiction, claim that SSA discriminated against plaintiff because of her age and disability). Because there has been no final SSA decision on Plaintiff's claim for benefits, the Court lacks jurisdiction over Plaintiff's contention that SSA has violated his constitutional rights by denying him benefits.
If and to the extent Plaintiff intends to assert a claim for damages based on the alleged violation of his constitutional rights, that claim also fails as a matter of law. “Plaintiff cannot maintain a claim for damages for a constitutional violation against the SSA or its officers” because “the Supreme Court has interpreted [the Social Security] Act to preclude a damages claim against the Commissioner for alleged constitutional violations caused by the denial of benefits.” Williams, 2024 WL 757264, at *5 (citing Schweiker v. Chilicky, 487 U.S. 412, 424-29 (1988)); see also Oji, 2015 WL 6741863, at *21.
E. Further Proceedings
For the reasons described above, the law requires Plaintiff to exhaust his administrative remedies, and SSA to render a final decision denying his claim for benefits, before he may seek judicial review in this Court. The Court, however, is cognizant of Plaintiff's contention that his correct date of birth is April 3, 1940, which, if true, means he is 84 years old as of today. The Court also notes (while expressing no opinion on the merits, which must be resolved in the first instance by an ALJ) that Plaintiff has presented colorable evidence to support his contention that his correct DOB is April 3, 1940. (See Opp. Ex. K at 2; Ex. P at 2; Ex. O at 4).
As Defendant emphasizes in its motion, SSA's procedures give Plaintiff the right to a hearing before an ALJ, who is empowered to overturn the initial denial of an application for benefits. (Def. Br. at 13). As required by law, Defendant extended such an opportunity to Plaintiff after this lawsuit was filed when it- twelve years after the fact-finally responded to and denied Plaintiff's September 12, 2021 request for reconsideration of the denial of his July 6, 2011 Application. (Wilder Decl. Ex. K). Plaintiff (according to Defendant's reply brief) did not avail himself of that opportunity. But Plaintiff, who has proceeded pro se in this case and in his dealings with SSA, may have been concerned that if he requested an administrative hearing, he would undermine his attempt to obtain judicial review. SSN's October 8, 2023 Notice of Reconsideration informed Plaintiff that “[y]ou must have a good reason if you wait more than 60 days to ask for a hearing” (Id. at 1), and Plaintiff may have viewed this lawsuit as a good reason for him to wait.
Under these circumstances, the Court believes it would be unjust to require Plaintiff to start anew by filing yet another application for retirement insurance benefits, await SSA's decision on that application, request reconsideration of that decision if it is a denial, and only then proceed to a hearing before an ALJ. Plaintiff should have an opportunity to request a hearing before an ALJ now with respect to his July 6, 2011 Application, even though more than 60 days have passed since SSA sent him the Notice of Reconsideration in October 2023. If it took SSA twelve years to rule on Plaintiff's request for reconsideration, it is only fair that Plaintiff be given a few more months to decide whether to request a hearing.
The Court thus recommends remanding this matter to SSA with directions that the agency afford Plaintiff another opportunity to request a hearing before an ALJ in connection with its October 8, 2023 denial of Plaintiff's request for reconsideration. See Humber, 2015 WL 3972270, at *5 (declining to exercise jurisdiction over plaintiff's claim for benefits due to his unexcused failure to exhaust administrative remedies, but also finding that “an unqualified dismissal of his action would not be appropriate” and remanding for a hearing before an ALJ). If the Honorable Dale E. Ho adopts this report and recommendation, Plaintiff may request such a hearing within 60 days of Judge Ho's order.
Unlike in Humber, the Court is not directing SSA to hold a hearing. It is only directing SSA to give Plaintiff the opportunity to request one. Plaintiff may choose not to do so or may prefer to file a new application for benefits. However, if Plaintiff wishes to proceed with his claim for retirement insurance benefits, in whatever fashion, he must do so in compliance with SSA's four-step administrative process. Only if and when he completes all four steps of that process and obtains a “final decision” from SSA would Plaintiff be allowed to seek judicial review of that decision in this Court.
CONCLUSION
For the foregoing reasons, the undersigned respectfully recommends that Defendant's motion for summary judgment be GRANTED and that the case be remanded to SSA to give Plaintiff an opportunity to request an administrative hearing before an ALJ. The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to the pro se Plaintiff at 3516 DeKalb Avenue, Bronx, NY 10467.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen days, inclusive of weekends and holidays, from the date of this Report and Recommendation to file written objections thereto. See also Fed. R. Civ. 6(a), (b), and (d). Any such objections shall be filed with the Clerk of Court. Any request for an extension of time to file objections must be directed to the Honorable Dale E. Ho. A failure to file timely objections will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner v. Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).