Opinion
15 Civ. 8326 (NSR)(JCM)
11-07-2016
JANESSA J. JORDAN-ROWELL, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
To the Honorable Nelson S. Román, United States District Judge:
Plaintiff Janessa J. Jordan-Rowell ("Plaintiff") commenced this action pursuant to 42 U.S.C. § 405(g), following the Social Security Administration's ("SSA") denial of her application for disability benefits after a hearing before an administrative law judge ("ALJ"), and pending a review of the ALJ's decision from the Appeals Council. In lieu of an answer, the Defendant Commissioner of Social Security ("Defendant Commissioner" or "Commissioner") moved to dismiss Plaintiff's Complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure ("Rule 12(b)(1)"). The Defendant Commissioner contends that the Court lacks subject matter jurisdiction over this matter because Plaintiff failed to exhaust her administrative remedies. For the reasons below, I respectfully recommend that Plaintiff's Complaint be dismissed.
I. BACKGROUND
Plaintiff applied for disability benefits, claiming she became disabled after acquiring HSV2, a sexually transmitted disease. On or about March 5, 2014, the SSA denied Plaintiff's claim, asserting that her health problems did not qualify her for benefits. (Prelle Decl. at ¶ 3(a)). By letter dated March 17, 2014, Plaintiff requested a hearing by an ALJ to challenge the SSA's denial of benefits. (Complaint at 7). (Prelle Decl. at ¶ 3(b)). Prior to the hearing being held, Plaintiff filed a civil action in this Court on April 28, 2014 (Civil Action No. 14 Civ. 3181 (NSR)). (Prelle Decl. at 3(c)). Subsequently, on May 13, 2015, Plaintiff appeared and testified at a hearing before ALJ Marissa Ann Pizzuto ("ALJ Pizzuto"). (Prelle Decl. at Exh. 3, p. 4). On October 9, 2015, ALJ Pizzuto issued a decision finding Plaintiff "not disabled" under sections 216(i) and 223(d) of the Social Security Act ("ALJ Decision"). (Prelle Decl. at ¶ 3(d); Exh. 3). Thereafter, Plaintiff requested a review of the ALJ's decision by the Appeals Council by letter dated October 17, 2015. (Prelle Decl. at Exh. 4, p. 3). Plaintiff also filed the instant civil action on October 21, 2015. As of the time of the filing of this action, the Appeals Council had not taken administrative action on Plaintiff's request for review. (Prelle Decl. at ¶ 3(h)). On December 17, 2015, the Honorable Nelson S. Román dismissed Plaintiff's prior civil action (Civil Action No. 14 Civ. 3181 (NSR)). As of June 29, 2016, the Appeals Council has not taken any administrative action on Plaintiff's request for Appeals Council review. (Prelle Decl. at ¶ 3(h)).
Herpes simplex virus type-2. See Christine Johnston, David M. Koelle, Anna Wald, HSV-2: in pursuit of a vaccine, J. CLINICAL INVESTIG., Dec. 1, 2011, at Abstract, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3223069/.
Refers to the Declaration of Cristina Prelle, Court Case Preparation and Review Branch 4, Office of Disability Adjudication and Review, Social Security Administration, filed on July 1, 2016 as Docket No. 17.
The SSA Field Office date stamp indicates the request was received in the New York, NY office on October 21, 2015. However, an employee of the field office indicated on a form that the request was received on October 28, 2015. (Prelle Decl. at ¶ 3(e) and Exh. 4, p.1).
On July 1, 2016, the Defendant Commissioner filed a pre-answer motion to dismiss the Complaint. (Docket No. 15). The Defendant Commissioner contends that because Plaintiff's administrative remedies have not been exhausted, i.e. since the Appeals Council has not taken action on the request for review, the Court lacks subject matter jurisdiction over this action. (Docket No. 16 at 6). Plaintiff did not timely file a response to the Commissioner's motion. As a result, the Court issued an order directing Plaintiff to respond to the motion, or otherwise explain why no response had been filed. (Docket No. 18). Plaintiff once again failed to respond. Therefore, in accordance with the September 1, 2016 Order, (Docket No. 18), the Court deems this matter fully submitted.
Defendant's Memorandum of Law in Support of Her Motion to Dismiss, filed on July 1, 2016.
II. DISCUSSION
A. Rule 12(b)(1) Standard
The Court may dismiss an action for lack of subject matter jurisdiction when it does not have the statutory or constitutional power to adjudicate it. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing Rule 12(b)(1)). "A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Id. (citing Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996)). In resolving a Rule 12(b)(1) motion, the Court construes all ambiguities and draws all inferences in Plaintiff's favor. Id. It must also "accept as true all material factual allegations in the complaint." Figueroa v. Comm'r of Soc. Sec., No. 12 Civ. 7129, 2013 WL 3481317, at *2 (S.D.N.Y. Jul. 11, 2013) (quotation marks and citation omitted) (adopting Report and Recommendation to dismiss action). The Court may also refer to evidence outside the pleadings in making its determination. Makarova, 201 F.3d at 113 (citation omitted).
In accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) and Local Rule 7.2 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York, a copy of this case and any others cited herein, only available by electronic database, accompany this Order and shall be simultaneously delivered to pro se Plaintiff.
B. Exhaustion
"Pursuant to 42 U.S.C. § 405(g), an individual must obtain a 'final decision of the Commissioner' before a federal court can review Social Security benefit determinations." Iwachiw v. Massanari, 125 F. App'x 330, 331 (2d Cir. 2005) (Summary Order) (citations omitted). "A determination is final, and the claim exhausted, after the Appeals Council has denied review or decided the case after review," following a hearing before an ALJ. Figueroa, 2013 WL 3481317, at *3 (citations omitted). Absent final review, a district court lacks subject matter jurisdiction to hear the lawsuit. Iwachiw, 125 F. App'x at 331-32 (citing Weinberger v. Salfi, 422 U.S. 749, 764 (1975)). The lack of subject matter jurisdiction also precludes the court from hearing claims for injunctive relief, including claims for interim benefits. Id. at 332 (citations omitted); Perez v. Apfel, 22 F. App'x 67, 68 (2d Cir. 2001) (Summary Order) (citations omitted). Here, the Commissioner asserts that the Appeals Council has not taken administrative action on Plaintiff's request for review. (Prelle Decl. at ¶ 3(h)). Additionally, the Commissioner notes that Plaintiff's request for review was received by the SSA Field Office on October 21, 2015, however, an employee of the field office indicated on a form that it was received on October 28, 2015. (Prelle Decl. at ¶ 3(e); Exh. 4). Plaintiff filed the instant action on October 21, 2015, on or about the date her request for review was received by the SSA Field Office in New York City. Plaintiff failed to wait until after the final step in the administrative process was complete before seeking judicial review. At this time, there clearly has been no final decision subject to judicial review. As such, it is respectfully recommended that this Court lacks subject matter jurisdiction to hear Plaintiff's claim for benefits.
C. Exceptions to Exhaustion
Notwithstanding that the exhaustion requirement applies to Plaintiff's claim for benefits, the Court may review Plaintiff's lawsuit under exceptions to exhaustion—"where the claim is collateral to a demand for benefits, exhaustion of administrative remedies would be futile, or the plaintiff would suffer irreparable harm if required to exhaust administrative remedies." Baptiste v. Comm'r of Soc. Sec., No. 09 Civ. 10178, 2010 WL 2985197, at *2 (S.D.N.Y. Jul. 27, 2010) (quoting Pavano v. Shalala, 95 F.3d 147, 150 (2d Cir. 1996)). In addition, the Court may "consider constitutional questions since they are unsuited to resolution in administrative hearing procedures." Id. (quotation marks and citations omitted). The Court may also award interim benefits pursuant to its remedial powers when the SSA has unreasonably delayed administrative proceedings. See Saltares v. Bowen, 711 F. Supp. 162, 164-66 (S.D.N.Y. 1989) (denying interim benefits, finding the SSA did not cause unreasonable delay); Jefferson v. Bowen, No. 84 Civ. 5664, 1986 WL 14928, at *2-3 (S.D.N.Y. Dec. 22, 1986) (awarding interim benefits, finding unreasonable delay). Contra Luna de Medina v. Apfel, No. 99 Civ. 4149, 2000 WL 964937, at *8-9 (S.D.N.Y. Jul. 12, 2000) (conceding "other courts in this district have granted interim benefits to new applicants," but denying the same pursuant to case law of circuit courts other than the Second Circuit).
Plaintiff has not asserted any of the circumstances which might excuse the lack of exhaustion of her social security benefits claim. See Baptiste, 2010 WL 2985197, at *2. Plaintiff has not argued that she is entitled to interim benefits, or that exhausting her administrative remedies would be futile. Plaintiff also has not argued that she will suffer irreparable harm if she must wait for a final decision from the Commissioner.
Moreover, Plaintiff has not demonstrated a delay that rises to the level of a constitutional violation. See Baptiste, 2010 WL 2985197, at *2 (six-month delay does not warrant an award of interim benefits); Jefferson, 1986 WL 14928, at *3 (four-year delay, coupled with multiple remands, warranted an award of interim benefits). Plaintiff also has not "shown a need for interim relief to prevent an injury of constitutional proportions." See Baptiste, 2010 WL 2985197, at *2. Plaintiff did not assert that she is without income pending a final determination of the Defendant Commissioner. In fact, Plaintiff has not alleged any injury should she be denied interim benefits. (See Complaint). Accordingly, it is respectfully recommended that no exception to exhaustion applies.
III. CONCLUSION
For the foregoing reasons, I conclude and respectfully recommend that the Defendant Commissioner's motion for judgment on the pleadings should be granted and the case should be dismissed.
IV. NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report and Recommendation to serve and file written objections. See Fed. R. Civ. P. 6(a) and (d) (rules for computing time). If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have seventeen (17) days from receipt of the same to file and serve written objections. See Fed. R. Civ. P. 6(d). A party may respond to another party's objections within fourteen (14) days after being served with a copy. See Fed. R. Civ. P. 72(b)(2). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Nelson S. Román at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the undersigned at said Courthouse.
Requests for extensions of time to file objections must be made to the Honorable Nelson S. Román and not to the undersigned. Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b), 6(d), 72(b); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008). Dated: November 7, 2016
White Plains, New York
RESPECTFULLY SUBMITTED,
/s/_________
JUDITH C. McCARTHY
United States Magistrate Judge