Hatcher v. Saul

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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PHILIP HATCHER,

Plaintiff,

MEMORANDUM & ORDER

-against- 18-CV-2282(JS)(ST)

ANDREW SAUL,1 COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

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APPEARANCES

For Plaintiff: Philip Hatcher, pro se

P.O. Box 803

Copiague, New York 11726

For Defendant: Vincent Lipari, Esq.

United States Attorney’s Office

Eastern District of New York

610 Federal Plaza, 5th Floor

Central Islip, New York 11722

SEYBERT, District Judge:

Plaintiff Philip Hatcher (“Hatcher” or “Plaintiff”),

proceeding pro se, initiated this action against the Commissioner

of the Social Security Administration (“the Commissioner” or

“Defendant”) alleging violations of his constitutional rights,

among other claims, in connection with an application for Social

Security Disability Benefits (“SSDI”). (See generally Second Am.

1 Andrew Saul is now the Commissioner of the Social Security

Administration. Pursuant to Federal Rule of Civil Procedure 25(d),

Saul is hereby substituted for Nancy A. Berryhill as the defendant

in this action. See, e.g., Pelaez v. Berryhill, No. 12-CV-7796,

2017 WL 6389162, at 1 n.1 (S.D.N.Y. Dec. 14, 2017), Report and

Recommendation Adopted, 2018 WL 318478 (S.D.N.Y. Jan. 3, 2018).

Compl., ECF No. 14.) On February 8, 2020, the Commissioner moved

to dismiss the Second Amended Complaint for lack of subject matter

jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).

(Mot., ECF No. 25; Pl. Opp., ECF No. 26.) The Court referred the

motion to Magistrate Judge Steven Tiscione for a report and

recommendation (“R&R”). (See Apr. 7, 2020 Elec. Order.) Before

the Court is Judge Tiscione’s February 3, 2021 R&R (ECF No. 32),

as well as Plaintiff’s objections2 (Pl. Objs., ECF No. 34, at ECF

pp. 5-7 (titled “Response to Report and Recommendation”); see also

Pl. Suppl. Objs., ECF No. 35). For the reasons that follow, the

R&R is ADOPTED as stated herein, Plaintiff’s objections are

OVERRULED, and the Commissioner’s motion is GRANTED.

2 Plaintiff also submitted a letter motion “TO RULE IN FAVOR OF

PLAINTIFF,” dated March 27, 2021 (ECF No. 37), and a “SUPPLEMENTAL

TO REPORT AND RECOMMEND,” dated March 20, 2021 (ECF No. 38). The

Court construes these as untimely objections. “Notwithstanding

the untimeliness of [Plaintiff’s . . .] objections or the fact

that Plaintiff filed multiple sets of objections without court

approval, this Court’s holdings remain the same because

Plaintiff’s untimely objections largely reiterate the content

included in his timely objections. Braxton/Obed-Edom v. City of

New York, No. 17-CV-0199, 2020 WL 1303558, at *1 n.1 (S.D.N.Y.

Mar. 19, 2020).

BACKGROUND AND PROCEDURAL HISTORY3

Except where noted, the Court adopts and incorporates

the facts and procedural history as set out in the R&R by Judge

Tiscione. (See R&R at 2-4.) As recited by Judge Tiscione:

Hatcher filed for SSDI benefits on May 5,

2010. On October 22, 2013, an Administrative

Law Judge (“ALJ”) found that Hatcher was not

disabled as defined by the Social Security Act

(20 CFR 404.1520(f)). The ALJ’s primary

reasoning appears to be based upon the

testimony of a vocational expert. On March

24, 2015, the [Social Security Administration

(“SSA”)] Appeals Council denied review of the

ALJ’s decision. In turn, on May 27, 2015,

Hatcher commenced the previous action in the

District Court. Hatcher [v. Colvin], 15-cv-

3282, 2017 WL 1323747, at *1 (E.D.N.Y. March

22, 2017) [(Feuerstein, J.)]. In that case,

the court granted the defendant’s motion to

remand the action for further proceedings due

to the ALJ’s failure to correctly apply the

applicable legal standard to the testimony of

the vocational expert. . . .

On November 13, 2017, the SSA sent a letter to

the Plaintiff notifying him of a hearing

scheduled for February 28, 2018. Among other

things, the letter instructed Hatcher that

should he fail to attend the hearing and not

offer “a good reason” his case may be

dismissed. Hatcher returned an

Acknowledgement of Receipt form, dated

December 14, 2017, stating that he would not

be present at the February 28, 2018 hearing

because, “any and all future scheduling of

hearings are automaticly [sic]

unconstitutional for failure of disclosure.”

Hatcher also submitted letters to the SSA

3 For the purpose of resolving the motion to dismiss under Rule

12(b)(1), the Court accepts all factual allegations in the Second

Amended Complaint as true. See Beni v. State Of New York, No. 18-

CV-0615, 2021 WL 1108556, at *1 (E.D.N.Y. Mar. 23, 2021).

outlining his objections to attending the

hearing.

In a letter dated February 14, 2018, the SSA

reminded Hatcher of his hearing date and again

warned him that if he failed to appear without

a “good reason” his case would be dismissed.

Hatcher responded with another letter to the

SAA, explaining that he considered the

February 14, 2018 reminder letter to be elder

abuse.

The Plaintiff failed to appear at the February

28, 2018 hearing and, as determined by the

ALJ, did not offer a good reason for his

absence. Accordingly, Hatcher’s case was

dismissed. Hatcher did not appeal this

dismissal to the SSA Appeals Council.4

(R&R at 2-3 (citations omitted).)

Plaintiff commenced this action on or around April 17,

2018. (Compl., ECF No. 1.) After filing two amended complaints,

the Commissioner moved to dismiss the Second Amended Complaint,

arguing that the Court lacks subject matter jurisdiction because

(1) the SSA is immune from suit and has not waived sovereign

immunity (see Comm’r Br., ECF No. 20-1, at 6-8), and (2) Hatcher

is not entitled to an award of benefits and there is no final

decision to review because Plaintiff failed to appear in the

4 Plaintiff objects to this finding, arguing that he did appeal

the ALJ’s dismissal. (See Pl. Objs. at ECF pp. 5-6 (arguing that

certain evidence supports a finding that Plaintiff filed an appeal

of the ALJ’s dismissal); see also Pl. Suppl. Objs. at ECF p. 3

(stating the Commissioner’s assertion that he did not file an

appeal is “false and untrue”).) The Court addresses this argument

below.

underlying administrative proceedings on remand (id. at 8-10).

Plaintiff opposes the motion arguing that the Federal Bureau of

Investigation is actively investigating “unlawful behavior by the

Commissioner’s office,” which is “extremely relevant to this civil

proceeding” (Pl. Opp. at 2-5) and “under 1983, the sovereign

immunity [doctrine] is not applicable” (id. at 5).

After referral from this Court, on February 3, 2021,

Judge Tiscione issued the R&R recommending that this Court grant

Defendant’s motion to dismiss in its entirety. First, Judge

Tiscione construed claims against the Commissioner as brought

pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 402

U.S. 388 (1971), and not 42 U.S.C. § 1983. (R&R at 6-7.) Under

a Bivens analysis, the court applied the doctrine of sovereign

immunity and determined that the Commissioner is immune from suit

because the Second Amended Complaint fails to allege that the

Commissioner waived sovereign immunity. (Id. at 7-8.) Second,

Judge Tiscione analyzed Plaintiff’s allegations that he was the

victim of fraud under the Federal Torts Claims Act and recommended

that the Court dismiss the claims because Plaintiff did not name

the United States as a defendant. (Id. at 8-9.) Third, and to

the extent asserted, Judge Tiscione found that judicial review of

the SSA’s dismissal determination is barred by sovereign immunity

because “Plaintiff never received a final decision from the SSA[.]”

(Id. at 9-10.)

DISCUSSION

Plaintiff filed objections and argues that the

Commissioner withheld “3 pieces of evidence” that support his

allegations “of the torts of the Commissioner’s office.” (See

generally Pl. Suppl. Objs.; Pl. Objs. at ECF pp. 5-7.) Plaintiff

also argues that he “now amend[s] this civil claim to include the

violation of the Federal Tort Claims Act [(“FTCA”)]” because the

Commissioner’s office “failed to produce” a document dated April

26, 2018 wherein he appealed the ALJ’s dismissal order (the “April

26 Letter”). (Pl. Objs. at ECF p. 4; April 26 Letter, attached to

Pls. Objs. at ECF pp. 2-4.) The Commissioner did not respond to

the objections.

A “district judge must determine de novo any part of the

magistrate judge’s disposition that has been properly objected to.

The district judge may accept, reject, or modify the recommended

disposition; receive further evidence; or return the matter to the

magistrate judge with instructions.” FED. R. CIV. P. 72(b)(3).

“The objections of parties appearing pro se are ‘generally accorded

leniency’ and should be construed ‘to raise the strongest arguments

that they suggest.’” Brown v. Smith, No. 09-CV-4522, 2012 WL

511581, at *2 (E.D.N.Y. Feb. 15, 2012) (quoting Milano v. Astrue,

No. 05–CV–6527, 2008 WL 4410131, at *2 (S.D.N.Y. Sept. 26, 2008)).

For the avoidance of doubt, and given Plaintiff’s pro se

status, the Court considers Plaintiff’s objections and will review

the R&R de novo. As a preliminary matter, Plaintiff submits two

exhibits in support of his objections that were not referenced in

the Second Amended Complaint or in opposition to Defendant’s motion

to dismiss.5 (See April 26 Letter; Workers’ Compensation Board

Notice of Decision, attached to Pls. Objs. at ECF p. 8.)

Generally, courts “do not consider new evidence raised in

objections to a magistrate judge’s report and recommendation.”

Tavares v. City of New York, No. 08-CV-3782, 2011 WL 5877548, at

*2 (S.D.N.Y. Nov. 23, 2011) (collecting cases). Indeed, “[t]he

submission of new evidence following [a magistrate judge’s R&R] is

merited only in rare cases, where the party objecting . . . has

offered a most compelling reason for the late production of such

evidence, or a compelling justification for [its] failure to

present such evidence to the magistrate judge.” Fischer v.

Forrest, 286 F. Supp. 3d 590, 603 (S.D.N.Y. 2018), aff’d, 968 F.3d

216 (2d Cir. 2020) (alterations in original) (internal citations

omitted). Although not required, the Court considers these

exhibits. Brown, 2012 WL 511581, at *1 (“[E]ven in a de novo

review of a party’s specific objections, the court will not

consider ‘arguments, case law and/or evidentiary material which

could have been, but [were] not, presented to the magistrate judge

5 Plaintiff also submitted an August 26, 2017 letter from a SSA

hearing officer (see Pls. Objs. at ECF pp. 9-10) that is attached

to the Second Amended Complaint (see Second Am. Compl. at ECF pp.

61-62).

in the first instance.’” (quoting Kennedy v. Adamo, No. 02–CV–

1776, 2006 WL 3704784, at *1 (E.D.N.Y. Sept. 1, 2006))). As

discussed below, however, the Court’s consideration of these

exhibits does not change the ultimate determination that dismissal

of the Second Amended Complaint is appropriate.

Turning to the merits, the Court agrees with Judge

Tiscione that “[t]here is no private right of action under the

Social Security Act,” and “Plaintiff is barred from bringing a

civil action against the SSA for monetary relief based on

violations of the Social Security Act.” Katsoulakis v. Astrue,

No. 10-CV-0081, 2011 WL 3877080, at *5 (E.D.N.Y. Aug. 31, 2011).

Second, “to the extent [P]laintiff is attempting to allege

violations of [his] constitutional rights by the SSA,” Judge

Tiscione correctly found that “the SSA is immune from suit.” Id.

Indeed, a Bivens claim against the SSA, which is “a federal

agency[,] is precluded” because “an action against a federal agency

is essentially a suit against the United States, and Bivens actions

against the United States are barred under the doctrine of

sovereign immunity.” Id. (quoting Sereika v. Patel, 411 F. Supp.

2d 397, 402 (S.D.N.Y. 2006); further citation omitted). Therefore,

Plaintiff’s Bivens claims against the SSA, to the extent asserted,

are DISMISSED.

Third, while a claim under Bivens “may be brought against

a federal officer in his individual capacity,” id. (quoting

Sereika, 411 F. Supp. 2d at 402), Plaintiff’s individual claims

against the Commissioner are similarly “barred because the Supreme

Court has held that social security claimants may not bring Bivens

actions alleging violations of their constitutional rights.” Id.

at *6 (citing Schweiker v. Chilicky, 487 U.S. 412, 424–25 (1988)

(“The [Social Security] Act . . . makes no provision for remedies

in money damages against officials responsible for

unconstitutional conduct that leads to the wrongful denial of

benefits.”)). In Schweiker, the Supreme Court declined to carve

out a “money damages remedy against Social Security employees

finding that Congress’ ‘inaction has not been inadvertent’ and

that ‘the design of [the Social Security] program suggests that

Congress has provided what it considers adequate remedial

mechanisms’ through the administrative process.” Id. (quoting

Schweiker, 487 U.S. at 423) (alterations in original).

Accordingly, Plaintiff’s Bivens claims against the Commissioner,

to the extent asserted, are DISMISSED.

Fourth, the Court agrees with Judge Tiscione that any

claim under the FTCA necessarily fails, including the “proposed”

amended claim recited supra, because Plaintiff does not name the

United States as a defendant and “[t]he SSA cannot be sued for

negligence based on the doctrine of sovereign immunity, which bars

FTCA suits against federal agencies.” Katsoulakis, 2011 WL

3877080, at *5 n.1 (citing 28 U.S.C. § 2679(a)) (further citations

omitted); Langella v. Bush, 306 F. Supp. 2d 459, 463 (S.D.N.Y.

2004) (“Under the FTCA, suit must be brought directly against the

United States, and federal agencies are immune from suit.”). Thus,

Plaintiff’s claims under the FTCA are DISMISSED.

Fifth, like Judge Tiscione, the Court considers

Plaintiff’s claim, to the extent alleged, seeking judicial review

of the ALJ’s dismissal of his application for SSDI benefits after

he failed to appear at a hearing on remand from this Court. The

Court understands that Plaintiff may argue that Judge Tiscione

erred in concluding there was not a final decision because

Plaintiff submitted numerous letters to the SSA purporting to

“appeal” the ALJ’s dismissal, and that the Appeals Council never

responded to Plaintiff’s request. (See March 14, 2018 Letter,

attached to Second Am. Compl. at ECF p. 99; March 31, 2018 Letter,

id. at ECF p. 96; April 26 Letter; May 11, 2018 Letter, attached

to Second Am. Compl. at ECF p. 110.) Assuming that the letters

attached to the Second Amended Complaint constitute evidence of an

appeal to the Appeals Council of the ALJ’s dismissal, the claim

fails because Plaintiff commenced this action while his appeal was

pending thereby depriving the Court of subject matter

jurisdiction.

Pursuant to 42 U.S.C. § 405(g), “judicial review is

authorized only after a ‘final decision of the Commissioner of

Social Security made after a hearing.’” Ramos v. Astrue, No. 11-

CV-6204, 2012 WL 2358158, at *1 (E.D.N.Y. June 20, 2012). (quoting

Califano v. Sanders, 430 U.S. 99, 108 (1977)). Where, as here, “a

case is remanded by a district court and, in turn, to an ALJ for

further proceedings, the decision of the ALJ constitutes the final

decision of the Commissioner unless the Appeals Council thereafter

assumes jurisdiction (1) at the claimant’s request, or, (2) absent

such request, in its discretion within 60 days after the ALJ’s

decision.” Jackson v. Astrue, No. 09-CV-1290, 2010 WL 3777732, at

*1 n.1 (E.D.N.Y. Sept. 21, 2010) (citing 20 C.F.R. § 404.984(a)-

(d)); see also 20 C.F.R. § 404.984(b) (noting that the Appeals

Council may assume jurisdiction if a claimant files exceptions

disagreeing with ALJ’s decision).

The record before the Court demonstrates Plaintiff

initiated this action while his alleged appeal was pending with

the Appeals Council. (See, e.g., March 14, 2018 Letter, attached

to Second Am. Compl. at ECF p. 99 (explaining “why the ‘Order of

Dismissal’, dated March 7, 2018, will be declared

unconstitutional, illegal, null and void, . . . .”); Pl. Suppl.

Objs. at ECF pp. 2-4 (April 26, 2018 letter to Appeals Council,

among others, describing prior letters and stating “I now present

a formal appeal to the alleged fraudulent decision of March 7,

2018 that it should be reversed and the decision of 3/7/2018, be

dismissed as unconstitutional and therefore unqualified to dismiss

my application . . . .”).) Thus, “there is no final decision” for

this Court to review as required by Section 405(g) because “the

Court remanded [the case] to the ALJ, Plaintiff then filed

exceptions to the ALJ’s decision, and the Appeals Council

apparently assumed jurisdiction but did not render its own decision

or remand to the ALJ.” Judge v. Colvin, No. 12-CV-02633, 2014 WL

4385420, at *2 (E.D.N.Y. Sept. 3, 2014) (Seybert, J.); Perez v.

Apfel, 22 F. App’x 67, 67 (2d Cir. 2001) (“Perez filed her

complaint while her request for review of the ALJ’s decision was

still pending before the Appeals Council. Appellant has therefore

failed to exhaust her administrative remedies and, as a

consequence, the district court lacks subject matter jurisdiction

over her claim.”); Martin v. Astrue, No. 07–CV–0928, 2008 WL

314524, at *3 (N.D.N.Y. Feb. 4, 2008) (holding that the court

lacked subject matter jurisdiction because the plaintiff filed her

complaint only seven days after the ALJ’s decision and she

therefore did not give the Appeals Council the opportunity to

potentially assume jurisdiction); accord Widman v. Comm’r of Soc.

Sec. Admin., 230 F. App’x 708 (9th Cir. 2007) (stating the ALJ’s

decision “did not become the final agency decision when the Appeals

Council did not respond to his request for review within sixty

days.” (citing 20 C.F.R. §§ 404.984(a), (b))). Accordingly,

Plaintiff’s claim for judicial review of the ALJ’s dismissal of

his application for SSDI benefits is DISMISSED for lack of

jurisdiction.

Finally, even assuming for arguments sake that this

Court had subject matter jurisdiction over Plaintiff’s civil

action against the SSA, it would reject Plaintiff’s argument that

he would be entitled to a disability determination because the New

York State Workers’ Compensation Board issued a finding that he

has a “permanent disability of 50.00%.” (Pl. Objs. at ECF p. 6

(Plaintiff objecting that “there would have been a profoundly

significant different result in favor of the plaintiff/claimant”

if the ALJ and district court received a copy of the Workers’

Compensation decision); see Workers’ Compensation Board Notice of

Decision, attached to Pls. Objs. at ECF p. 8.) A “determination

of disability in the context of a workers’ compensation claim uses

a different standard than the Social Security Act.” Ackley v.

Colvin, No. 13-CV-6656, 2015 WL 1915133, at *5 (W.D.N.Y. Apr. 27,

2015). Thus, neither this Court nor an ALJ is “bound by . . .

conclusions that Plaintiff had varying degrees of disability for

workers’ compensation purposes.” Guerra v. Comm’r of Soc. Sec.,

No. 16-CV-0991, 2018 WL 3751292, at *6 (W.D.N.Y. Aug. 7, 2018),

aff’d sub nom. Guerra v. Saul, 778 F. App’x 75 (2d Cir. 2019).

***

The Court has considered Plaintiff’s remaining

objections and finds them to be without merit. Accordingly, and

for substantially the reasons set forth in the R&R, Plaintiff’s

objections are OVERRULED and the R&R is ADOPTED as stated herein.

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that

Plaintiff’s objections are OVERRULED, Judge Tiscione’s R&R (ECF

No. 32) is ADOPTED as stated herein, the Commissioner’s motion to

dismiss (ECF No. 25) is GRANTED, and this action is DISMISSED.

Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies

that any appeal from this Order would not be taken in good faith

and therefore in forma pauperis status is denied for the purpose

of any appeal. See Coppedge v. United States, 369 U.S. 438, 444–

45 (1962).

The Clerk of the Court is respectfully directed to amend

the case caption to reflect Andrew Saul, as the Commissioner of

the Social Security Administration, as defendant (see supra Note

1), mail a copy of this Memorandum and Order to pro se Plaintiff,

terminate all pending motions, and mark this case CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERT________

Joanna Seybert, U.S.D.J.

Dated: March 31 , 2021

Central Islip, New York