Opinion
23 Civ. 9397 (NSR) (AEK)
07-08-2024
RON SEABORN, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
ANDREW E.KRAUSE, UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE NELSON S. ROMAN, U.S.D.J.
Pro se plaintiff Ron Seaborn brings this action pursuant to 42 U.S.C. § 405(g), apparently seeking judicial review of the determination by the Social Security Administration (“SSA”) that his Supplemental Security Income (“SSI”) benefits are subject to overpayment withholding. ECF No. 1 (“Complaint” or “Compl.”). By order dated October 27, 2023, the Court granted Plaintiff's request to proceed in forma pauperis, that is, without prepayment of fees. ECF No. 3. Defendant Commissioner of Social Security (“Commissioner”) moves to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or, in the alternative, for summary judgement pursuant to Rule 56 of the Federal Rules of Civil Procedure, because Plaintiff has failed to exhaust his administrative remedies. ECF No. 7. Plaintiff did not file an opposition to the motion. For the reasons that follow, I respectfully recommend that the Commissioner's motion be GRANTED.
On January 19, 2024, the Commissioner served the motion and all supporting papers on Plaintiff via U.S. Mail at his address of record on the docket. See ECF No. 10. This matter was referred to the undersigned on April 30, 2024. See ECF No. 8. On May 7, 2024, the undersigned issued an order extending the deadline for Plaintiff to file an opposition to the Commissioner's motion to June 7, 2024. The docket reflects that nothing has been filed to date, and the undersigned has not received any correspondence from Plaintiff seeking additional time to respond.
BACKGROUND
A. Allegations in the Complaint
Plaintiff filed a form complaint for judicial review of a final decision of the Commissioner on October 23, 2023. See Compl. ¶¶ 1-8. Paragraph 5 of the form complaint alleges that the SSA “issued an unfavorable decision regarding the plaintiff's application for, or eligibility to receive, benefits under Title XVI of the Social Security Act (SSI - Supplemental Security Income) . . . .” Id. ¶ 5. Paragraph 6 of the form complaint offers a plaintiff the opportunity to indicate-by filling in a blank space on the form-the date of the decision of the Administrative Law Judge (“ALJ”) that is the subject of the complaint; Plaintiff's Complaint does not include any alleged date for an ALJ decision. Id. ¶ 6. Similarly, paragraphs 7 and 8 of the form complaint offer a plaintiff the opportunity to indicate the date that the SSA's Appeals Council denied review of the ALJ's decision or otherwise issued an unfavorable decision, and the date a plaintiff received correspondence from the Appeals Council; again, Plaintiff's Complaint does not include any alleged date for an Appeals Council denial or unfavorable decision, or any alleged date for the receipt of a communication from the Appeals Council. Id. ¶¶ 7, 8. No copy of any correspondence from the Appeals Council is attached to the Complaint. See id. ¶ 8.
Plaintiff did attach to the Complaint a copy of the first page of a purported “Request for Reconsideration” relating to an SSI overpayment; the undated form is not dated, states that Plaintiff “took 2 months rent out of [his] account to pay an attorney to get [him] a roommate,” and goes on to say that Plaintiff “changed [his] mind and put the same money back into [his] bank account.” See Id. at pg. 4. Also attached to the Complaint are (i) a letter to Plaintiff from “First Hudson Capital,” dated July 6, 2021, regarding rent payments for his apartment, see Id. at pg. 5; (ii) a “receipt” dated October 14, 2020, apparently regarding a “lease for 2 years,” see Id. at pg. 6; (iii) the first page of a May 25, 2023 letter from the SSA regarding Plaintiff's SSI benefits payment, see Id. at pg. 7; and (iv) a document dated May 30, 2023 that appears to be a record from the New York City Department of Housing Preservation and Development regarding code violations at Plaintiff's apartment, see Id. at pg. 8.
Some of the words in the second sentence quoted above are cut off in the version of the document at ECF No. 1; the quoted language reflects the Court's best effort to interpret the words in the right-hand margin of the “Request for Reconsideration” form. The precise language in this document is not material to the resolution of the Commissioner's motion.
B. Additional Factual Background
In support of the motion, the Commissioner submitted the declaration of Andrea Wilder, the SSA's Assistant Regional Commissioner for Management and Operations Support for Region II, which includes New York, New Jersey, Puerto Rico, and the U.S. Virgin Islands. See ECF No. 7-4 (“Wilder Decl.”) ¶ 1.
On January 7, 2015, Plaintiff filed an application for SSI benefits. Wilder Decl. Ex. A at 1. On January 16, 2015, Plaintiff was notified that he was eligible for monthly SSI benefits in the amount of $733.00 beginning in February 2015. Id.
The SSA sent Plaintiff a Notice of Overpayment on July 13, 2021, informing him that he had been overpaid by $794.00 for the month of June 2021. Wilder Decl. Ex. B at 1. The notice informed Plaintiff that he had 60 days to ask for an appeal by completing Form SSA 561, a “Request for Reconsideration” (“Form SSA 561”). Id. at 2-3. The notice also explained how to request a waiver of the overpayment by completing Form SSA 632, a “Request for Waiver of Recovery or Change in Payment Rate” (“Form SSA 632”). Id. at 2. On February 11, 2022, the SSA sent Plaintiff a second Notice of Overpayment, informing him that he had been overpaid by $5,412.00 for the period of February 2020 through January 2022, in addition to the $794.00 overpayment for June 2021. Wilder Decl. Ex. C at 1. This second notice contained the same information for how to request an appeal or file a waiver as the July 13, 2021 notice. Id. at 2, 3. The February 11, 2022 notice also informed Plaintiff that the SSA would withhold $84.10 per month from his SSI benefits check beginning in May 2022 until the overpayment was recouped. Id. at 1. In addition, the February 11, 2022 notice explained that if Plaintiff made a request for reconsideration or a waiver within 30 days, the withholding would not begin until his case had been decided by the SSA. Id. On February 24, 2022, the SSA sent Plaintiff a third Notice of Overpayment, informing him that he had been overpaid by $1,588.00 for July 2021 and August 2021, in addition to $6,121.90 that was still outstanding from the earlier-identified overpayments Wilder Decl. Ex. D at 1. This third notice again informed Plaintiff how to request an appeal and a waiver, and notified Plaintiff that the SSA would withhold $84.10 per month from his SSI checks unless he requested an appeal or waiver within the next 30 days. Id. at 1-3.
On April 12, 2022, Plaintiff provided the SSA with information to support his continued eligibility for SSI benefits. Wilder Decl. Ex. E at 1. The SSA subsequently sent Plaintiff a “Redetermination Summary for Determining Continuing Eligibility for Supplemental Security Income Payments.” Id. This document instructed Plaintiff to review the information to ensure that it was recorded accurately, and to inform the SSA of any future changes within ten days of the end of the month in which the change occurred. Id. at 1, 6. On May 12, 2022, the SSA sent Plaintiff Form SSA 561 and Form SSA 795, a “Person Statement” (“Form SSA 795”). Wilder Decl. Ex. F at 1. The cover letter instructed Plaintiff to complete the Form SSA 561 and to explain on the Form SSA 795 “the reason that the appeal form was submitted past 60 days from the notice of overpayment.” Id. On November 26, 2023, the SSA provided Plaintiff with a Notice of Change in Payment, informing him that his monthly SSI benefits had increased from $914.00 to $943.00 due to the “rise in cost of living.” Wilder Decl. Ex. G at 1. This notice also indicated that beginning in January 2024, the SSA would increase the amount withheld from Plaintiff's monthly benefits from $91.40 to $94.30. Id. As of January 11, 2024, Plaintiff was receiving a monthly net SSI benefit payment of $848.70 after recovery for the overpayments (a gross benefit payment of $943.00, minus $94.30 for recovery for the overpayment); a total of $5,667.60 remained on his overpayment. Wilder Decl. ¶ 2(h).
According to Assistant Regional Commissioner Wilder, a “diligent review of Plaintiff's Social Security record does not show that Plaintiff filed a request for reconsideration of his overpayment with [the] SSA or requested a waiver of the overpayment from [the] SSA.” Id. ¶ 2(i).
LEGAL STANDARD
Evaluation of the Commissioner's motion requires consideration of matters outside of the pleadings; accordingly, the Court construes the motion as one for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Escalera v. Comm'r of Soc. Sec., 457 Fed.Appx. 4, 6 n.1 (2d Cir. 2011) (summary order); Fed.R.Civ.P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), 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.”). There is no prejudice to the pro se Plaintiff in treating the motion as a motion for summary judgment-the Commissioner appropriately provided Plaintiff with unequivocal notice that the motion to dismiss could be treated as a motion for summary judgment, as well as information regarding the meaning and consequences of converting the motion to one for to summary judgment. See Hernandez v. Coffey, 582 F.3d 303, 307-08 (2d Cir. 2009) (explaining that where a pro se plaintiff is involved, “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.” (cleaned up)); see also ECF No. 7-1 (providing the “Notice to Pro Se Litigant Who Opposes a Rule 12 Motion Supported by Matters Outside the Pleadings,” as required by Local Civil Rule 12.1 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York); ECF No. 7-2 (providing the “Notice to Pro Se Litigant Who Opposes a Motion for Summary Judgment,” as required by Local Civil Rule 56.2 of the Local Rules for the United States District Courts for the Southern and Eastern Districts of New York).
In accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009), and Local Civil Rule 7.2 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, copies of this case and other cases that are unpublished or only available by electronic database are being simultaneously mailed to the pro se Petitioner along with this Report and Reccomendation.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted “if 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.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett , 477 U.S. 317, 320-23 (1986). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, a court is required to “constru[e] the evidence in the light most favorable to the nonmoving party and draw[] all reasonable inferences in its favor.” Mount Vernon Fire Ins. Co. v. Belize NY, Inc ., 277 F.3d 232, 236 (2d Cir. 2002); Farias v. Instructional Sys., Inc., 259 F.3d 91, 97 (2d Cir. 2001); see also Anderson, 477 U.S. at 261 n.2. A party cannot overcome summary judgment by relying on “mere speculation or conjecture as to the true nature of the facts” because “conclusory allegations or denials” cannot “create” genuine disputes of material fact “where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quotation marks omitted). Moreover, “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge[.]” Anderson, 477 U.S. at 255; accord Williams v. N.Y.C. Housing Auth., 61 F.4th 55, 76 (2d Cir. 2023). “Only when no reasonable trier of fact could find in favor of the nonmoving party should summary judgment be granted.” Cruden v. Bank of N.Y ., 957 F.2d 961, 975 (2d Cir. 1992) (citing H.L. Hayden Co. v. Siemens Med. Sys. Inc ., 879 F.2d 1005, 1011 (2d Cir. 1989)).
Because Plaintiff is proceeding pro se, the Court is obligated to review Plaintiff's submissions with “special solicitude” and to interpret them to raise the “strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (cleaned up); accord Barnes v. City of New York, 68 F.4th 123, 127 (2d Cir. 2023).
DISCUSSION
A. The Requirement of a Final Decision
The SSA and its Commissioner are components of the federal government and are therefore protected from suit by the doctrine of sovereign immunity, except where they have consented to being sued. See Williams v. Comm'r of Soc. Sec., No. 23-cv-1455 (LJL), 2024 WL 757264, at *3 (S.D.N.Y. Feb. 23, 2024). Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), provides a limited waiver of sovereign immunity, authorizing judicial review in cases arising under Title II of the Act, as follows:
Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of
such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow.42 U.S.C. § 405(g). “Under Section 205(g), an individual must obtain a final decision of the [Commissioner] before a district court can review a Social Security benefits determination.” Williams, 2024 WL 757264, at *3 (cleaned up).
There is no other statutory mechanism by which an individual may seek review of a decision of the Commissioner. The Social Security Act specifies that “[n]o findings of fact or decision of the [Commissioner] shall be reviewed by any person, tribunal, or governmental agency” except as provided for in the Act; in particular, “[n]o action against the United States, the [Commissioner] or any other officer or employee thereof shall be brought under section 1331 or 1346 of Title 28, United States Code, to recover on any claim arising under this subchapter.” See 42 U.S.C. § 405(h).
“The requirement of a final decision 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, 457 Fed.Appx. at 5 (quotation marks omitted). As the Commissioner points out in his memorandum of law in support of his motion, this case involves the second element. See ECF No. 7 at 8. “To exhaust the administrative review process, a plaintiff must: (1) receive an initial determination concerning the computation of benefits; (2) seek reconsideration [of the initial determination]; (3) request a hearing before an [ALJ]; and (4) request that the Appeals Council review the ALJ's decision. Once the Appeals Council issues a final decision, the plaintiff may seek review of it in a federal district court.” Orr v. Comm'r of Soc. Sec ., No. 19-cv-4926 (LLS), 2019 WL 2343143, at *1 (S.D.N.Y. May 31, 2019); see Smith v. Berryhill, 139 S.Ct. 1765, 1772 (2019) (explaining the four-step process a claimant must proceed through before obtaining review from a federal court). Only after completing these steps can a claimant seek federal court review of an adverse decision. See Roberts v. Comm'r of Soc. Sec, No. 14-cv-8288 (MHD), 2015 WL 9450794, at *4 (S.D.N.Y. Aug. 12, 2015) (citing 20 C.F.R. § 416.1400(a)(5)); Smith, 139 S.Ct. at 1772 (“If a claimant has proceeded through all four steps on the merits . . . § 405(g) entitles him to judicial review in federal district court.”).
B. Plaintiff Has Not Exhausted His Administrative Remedies
As a threshold matter, Plaintiff has used a form complaint to allege that the SSA “issued an unfavorable decision regarding the [P]laintiff's application for, or eligibility to receive, benefits under Title XVI of the Social Security Act,” Compl. ¶ 5, but it is not clear exactly what decision of the Commissioner the Plaintiff is purportedly challenging. Construing the pleadings in the light most favorable to the Plaintiff, however, the Court concludes that Plaintiff is disputing the SSA's notices of overpayment, which informed him that he had been overpaid in June 2021, from February 2020 through January 2022, and in July and August 2021. Id. ¶¶ 2(b), 2(c), 2(d).
The question of whether an overpayment of benefits must be repaid to the SSA is the type of SSA determination that is subject to administrative and judicial review. See 20 C.F.R. § 416.1402(c) (listing an overpayment of benefits as one type of “initial determination”); 20 C.F.R. § 416.1400 (setting forth the administrative review process that begins with an “initial determination”); Roberts, 2015 WL 9450794, at *4 (listing initial determinations “that are subject to the hierarchical hearing-and-appeal process,” including “overpayments of benefits and other similar issues”). Thus, before Plaintiff could seek review in federal court of the SSA's initial determination regarding the overpayment of benefits to him, he was required to have exhausted his administrative remedies-by seeking reconsideration of the initial determination, requesting a hearing before an ALJ, requesting Appeals Council review of the ALJ's decision, and turning to federal court only after receiving the final decision from the Appeals Council. See Orr, 2019 WL 2343143, at *1; 20 C.F.R. § 416.1400(a)(1)-(5); 20 C.F.R. 416.1402(c). Plaintiff has not done so.
The Complaint, on its face, does not allege facts sufficient to demonstrate that Plaintiff took any steps to exhaust his administrative remedies, let alone that he obtained a final decision. To initiate this lawsuit, Plaintiff used the form “Complaint for Judicial Review of Final Decision of the Commissioner of Social Security,” but he left blank those portions of the form complaint that ask for: (i) the date on which the ALJ issued his or her decision, (ii) the date on which the Appeals Council denied Plaintiff's request or otherwise issued an unfavorable decision, and (iii) the date on which Plaintiff received correspondence from the Appeals Council notifying him of its decision. See Compl. ¶¶ 6-8. Plaintiff also did not attach a copy of the Appeals Council's letter to the Complaint, as the form instructs. See Id. ¶ 8. While Plaintiff did attach one page of a Form SSA 561, this incomplete, undated document does not indicate that Plaintiff actually requested reconsideration of the SSA's determination that he had been overpaid by submitting such documentation to the SSA. And indeed, the SSA's records regarding Plaintiff make clear that he did not-as set forth in the Wilder Declaration, “[a] diligent review of Plaintiff's Social Security record does not show that Plaintiff filed a request for reconsideration of his overpayment with [the] SSA or requested a waiver of the overpayment from [the] SSA.” See Wilder Decl. ¶ 2(i). Even if Plaintiff did submit a request for reconsideration, however, Plaintiff has not come forward with any evidence to demonstrate that he took any of the other steps required to exhaust his administrative remedies, including requesting a hearing before an ALJ, or seeking Appeals Council review of the ALJ's decision, prior to commencing this action.
To the extent Plaintiff thought that the appropriate procedure to challenge the SSA's overpayment determination was to file the Form 561 as part of his lawsuit, this was not correct- Plaintiff was required to submit the documentation to the SSA in the first instance.
Accordingly, dismissal is warranted. See, e.g., Dunn v. Comm'r of Soc. Sec ., 832 Fed.Appx. 62, 64 (2d Cir. 2020) (summary order) (affirming dismissal of form complaint based on plaintiff's failure to exhaust administrative remedies); Escalera, 457 Fed.Appx. at 5-7 (affirming dismissal where plaintiff “failed to exhaust his administrative remedies, given that he did not request reconsideration of the agency's initial [ ] determination”).
Because Congress has authorized judicial review only of a final decision as defined by the Commissioner, and because Plaintiff failed to obtain such a final decision regarding the SSA's initial determination regarding overpayment of benefits before filing this action, the Commissioner's motion should be granted unless there is reason to excuse Plaintiff's failure to exhaust his administrative remedies.
C. Plaintiff's Failure to Exhaust His Administrative Remedies Cannot Be Excused
The Second Circuit has held that “[a] plaintiff's failure to exhaust administrative remedies may be excused if (1) the claim is collateral to a demand for benefits; (2) exhaustion would be futile; or (3) requiring exhaustion would result in irreparable harm.” Escalera, 457 Fed.Appx. at 6 (quotation marks omitted). But “exhaustion is the rule, waiver the exception.” Garcia on behalf of S.S. v. Comm'r of So c. Sec., No. 22-cv-7170 (LTS), 2022 WL 4110172, at *2 (S.D.N.Y. Sept. 6, 2022) (quoting Abbey v. Sullivan, 978 F.2d 37, 44 (2d Cir. 1992)).
None of these circumstances are present here. First, the claim that appears to be the basis for Plaintiff's Complaint-a challenge to the SSA's initial determination regarding overpayment of benefits-is not collateral to a demand for benefits, because it is squarely related to the amount of monthly SSI benefits that Plaintiff should receive. See Escalera, 457 Fed.Appx. at 6 (plaintiff's claim was “not collateral to his demand for benefits, as it involves a demand for benefits and investigation into his wage earnings”). Second, there is nothing in the record that would allow the Court to conclude that exhaustion of administrative remedies would be futile in these circumstances. It is always possible that proper pursuit of administrative remedies could result in changes to the SSA's evaluation of Plaintiff's circumstances and lead to a favorable (or more favorable) decision as to the overpayments at issue; at a minimum, “[a] final agency decision and developed written record would ensure a more complete review in federal court.” Id. at 6-7. Third, Plaintiff, who, at the time the motion was filed, was still receiving monthly SSI benefits, see Wilder Decl. ¶ 2(h), does not offer any suggestion that the additional time that would be necessary to exhaust administrative remedies would result in any harm, let alone irreparable harm. Accordingly, there is no basis to excuse Plaintiff's failure to exhaust his administrative remedies, and the Commissioner's motion should be granted.
Notably, the overpayment notices sent to Plaintiff by the SSA were issued on July 13, 2021, February 11, 2022, and February 24, 2022, and Plaintiff did not file this action until October 23, 2023i.e., between 20 and 27 months after receiving the notices. See Wilder Decl. ¶¶ 2(b), 2(c), 2(d). This further undercuts any notion that some additional delay while Plaintiff follows the appropriate procedural steps would cause irreparable injury.
CONCLUSION
For the foregoing reasons, I respectfully recommend that the Commissioner's motion be construed as a motion for summary judgment, and that the motion be GRANTED.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have 14 days from service of this Report and Recommendation to file written objections. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service is made by mail). A party may respond to another party's objections within 14 days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Nelson S. Roman, United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Roman, and not to the undersigned.