Opinion
19-CV-5430 (GBD) (OTW)
04-06-2021
KEVIN MARTIN, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
ONA T. WANG, UNITED STATES MAGISTRATE JUDGE
To the Honorable GEORGE B. DANIELS, United States District Judge:
I. Introduction
Plaintiff Kevin Martin brings this action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. §405(g), seeking judicial review of a decision of the Commissioner of Social Security (“Commissioner”) lowering his monthly Supplement Security Income (“SSI”) payment beginning July 2019. Before the Court is the Commissioner's motion to dismiss the action pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. (ECF 18, the “Motion”). For the reasons set forth below, I recommend that the Motion be GRANTED.
II. Statement of Facts
A. Procedural Background
Plaintiff filed a claim for SSI on September 16, 2009. (ECF 20 ¶ 2(a)). The Commissioner found Plaintiff disabled. (ECF 20 2(a)). In April 2019, the Commissioner notified Plaintiff that his SSI would decrease because of an increase in other income. (ECF 2 ¶ 8, 20 ¶ 2(b)). On May 21, 2019 and June 1, 2019, the Commissioner informed Plaintiff again that his SSI would decrease. (ECF 2 ¶ 9).
On May 4, 2019, Plaintiff filed a request for reconsideration of the SSI reductions. On May 10, 2019, the Commissioner notified Plaintiff of an appointment at the agency's offices on May 29, 2019. At this May 29, 2019 appointment, Plaintiff provided proof that he had resigned from his employment on February 15, 2019.
By letter dated June 6, 2019, the Commissioner informed Plaintiff that it revised its determination and that Plaintiff's SSI payments would revert to the full amount, $771.00 monthly, beginning July 2019 as a result of the agency's determination that Plaintiff had no income from March 2019 onwards after resigning his employment. (ECF 20 ¶ 2(c), 20-8). The Commissioner also issued back payments for June 2019 in the amount of $462.85. (ECF 20 ¶ 2(c)-(d), 20-8).
Plaintiff filed his complaint against the Commissioner on June 7, 2019. (ECF 2, the “Complaint”). The Complaint does not reference the June 6, 2019 letter. At the time of the Complaint, the Commissioner had not received a request for a hearing by an ALJ. On October 15, 2019, the Commissioner moved to dismiss the action for lack of subject matter jurisdiction. (ECF 18).
“In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) a district court may consider evidence outside the pleadings.” Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff'd, 561 U.S. 247 (2010) (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). In reviewing a Rule 12(b)(1) motion, the court “must accept as true all material factual allegations in the complaint, but [is] not to draw inferences from the complaint favorable to plaintiffs.” J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004). The court “may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but . . . may not rely on conclusory or hearsay statements contained in the affidavits.” Id. In resolving a Rule 12(b)(1) motion, a court may also “consider ‘matters of which judicial notice may be taken.” Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir. 1993). However, the Court need not reach the question of whether or not to consider these letters, because it is apparent from the pleadings that there is no subject matter jurisdiction.
III. Analysis
A. Applicable Legal Principles
“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova, 201 F.3d at 113 (citing Fed. R. Civ. Proc. 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)).
Where, as here, a plaintiff proceeds pro se, the court should read his supporting papers “liberally, and ... interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (citing Mikinberg v. Baltic S.S. Co., 988 F.2d 327, 330 (2d Cir. 1993)). “Even a pro se plaintiff, however, will bear the burden of proving that subject-matter jurisdiction exists.” Faucette v. Colvin, No. 15-CV-8495 (AJP), 2016 WL 866350, at *3 (S.D.N.Y. Mar. 3, 2016) (quoting Omoniyi v. Dep't of Homeland Sec., No. 10-CV-1344 (DF), 2012 WL 892197, at *5 (S.D.N.Y. Mar. 13, 2012)).
In this case, Plaintiff seeks relief against the Commissioner, which implicates sovereign immunity and the Court's subject matter jurisdiction at the motion to dismiss stage. See Allen v. Comm'r of Soc. Sec., No. 16-CV-1298 (JPO), 2017 WL 1102665, at *2 (S.D.N.Y. Mar. 23, 2017) (citing Guthrie v. U.S. Fed. Bureau of Prisons, No. 09-CV- 990 (LAP), 2010 WL 339759, at *3 (S.D.N.Y. Jan. 26, 2010)). “Absent a waiver, sovereign immunity shields the Federal Government and its agencies,” including the Commissioner, “from suit.” Meyer, 510 U.S. at 475. Therefore, waiver of sovereign immunity is a “prerequisite” for subject matter jurisdiction in federal district courts. United States v. Mitchell, 463 U.S. 206, 212 (1983).
Sections 405(g) and (h) of the Social Security Act waive sovereign immunity in social security cases, providing for judicial review only “after any final decision of the Commissioner of Social Security made after a hearing to which [the individual] was a party.” 42 U.S.C. §§ 405(g), (h). “Thus, before any person may bring an action in federal court regarding a decision about Social Security benefits, he must exhaust administrative remedies by securing a final decision from the Commissioner of Social Security.” Louis, 2010 WL 743939, at *2.
Social Security regulations provide that a claimant must complete a four-step administrative review process in order to obtain a final decision subject to judicial review. 20 C.F.R. § 416.1400(a). This process includes: (1) an initial determination; (2) a request for reconsideration; (3) a decision by an administrative law judge after a hearing; and (4) a request for review by the agency Appeals Council. Id. §§ 416.1400(a)(1)-(4). The regulations further define an “initial determination,” the first step of the review process, as a determination that is “subject to administrative or judicial review.” Id. § 416.1402. Only after the completion of the full four-step administrative process does a claimant receive a “final decision of the Commissioner,” which triggers the right to judicial review under the statute. 42 U.S.C. § 405(g). Not all decisions or actions of the Commissioner are initial decisions subject to the four-step administrative review process and judicial review. See 20 C.F.R. § 416.1403(a).
B. Application
Here, it is clear that Plaintiff did not obtain a final decision by the Commissioner before filing this action in June 2019. Plaintiff has not pleaded a decision by an ALJ nor review by the Appeals Council, both of which are required before a decision is considered “final.” See § 405(g). Thus, Plaintiff has failed to meet his burden that there is subject matter jurisdiction because Plaintiff had not exhausted his administrative remedies when he commenced this action. See Faucette, 2016 WL 866350 at *3.
Indeed, Plaintiff's complaint appears to request a hearing before an ALJ. (ECF 2 ¶ 6).
Under certain limited circumstances, the exhaustion requirement may be excused. For example, courts have excused a failure to exhaust “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-CV-10178 (DLC), 2010 WL 2985197, at *2 (S.D.N.Y. Jul. 27, 2010) (quoting Pavano v. Shalala, 95 F.3d 147, 150 (2d Cir. 1996)). “[E]xhaustion is the rule, waiver the exception.” Abbey v. Sullivan, 978 F.2d 37, 44 (2d Cir. 1992). Here, Plaintiff has not demonstrated that he falls under any of these exceptions and has made no argument that an exception would exist. Neither has the Commissioner waived the exhaustion requirement. Accordingly, I recommend that this action be dismissed for lack of subject matter jurisdiction.
The Commissioner argues that the Plaintiff's complaint is moot given the agency's reconsideration of his benefits. However, because the Court lacks subject matter jurisdiction to weigh in on the merits of the claim, I do not reach this argument.
IV. Conclusion
For the reasons stated above, I recommend that the Commissioner's Motion to Dismiss (ECF 18) be GRANTED and the action be terminated.
V. Objections
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also Fed. R. Civ. P. 6. A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Honorable George B. Daniels, United States District Judge. Any requests for an extension of time for filing objections must be directed to Judge Daniels.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to the pro se Plaintiff.