Eichie v. Kuakazi

USDC SDNY

DOCUMENT

UNITED STATES DISTRICT COURT ELECTRONICALLY FILED

SOUTHERN DISTRICT OF NEW YORK DOC #:

Sonnac nnnnns IK DATE FILED:_02/01/2023

PETER EICHIE, :

Plaintiff, :

: 21-cv-10712 (LJL)

-V- :

: OPINION AND ORDER

KILOLO KUAKAZI, ACTING COMMISSIONER OF □ :

SOCIAL SECURITY for the UNITED STATES, :

Defendant. :

we KX

LEWIS J. LIMAN, United States District Judge:

Plaintiff Peter Eichie (‘Plaintiff’), proceeding pro se, commenced this action against

Kilolo Kuakazi, Acting Commissioner of Social Security (“Commissioner” or “Defendant”),

seeking a writ of mandamus to enforce the Commissioner’s decision, dated May 28, 2021,

awarding him Supplemental Security Income benefits under the Social Security Act. Dkt. No. 1

(“Complaint”).

Defendant has filed a motion to dismiss, pursuant to Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6), for lack of subject matter jurisdiction and failure to state a

claim upon which relief can be granted, or in the alternative, a motion for summary judgement

pursuant to Federal Rule of Civil Procedure 56. Dkt. No. 17.

For the following reasons, Defendant’s motion to dismiss is granted.

BACKGROUND

When considering a motion to dismiss under Rule 12(b)(1), a court “may refer to

evidence outside the pleadings.” Markova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

As such, the following facts are taken from the parties’ submissions.

In 2001, Plaintiff’s parent and representative Terri Simmons (“Simmons”) filed for

Supplemental Security Income (“SSI”) benefits under Title XVI of the Social Security Act (the

“Act”). Dkt. No. 1 at ECF p. 2. Plaintiff received disabled child SSI benefits from May 2001

until his eighteenth birthday in February 2018. Dkt. No. 18 ¶ 2(a). Through March 2018,

Plaintiff was considered a disabled adult and continued receiving SSI benefit payments. Id.

Simmons acted as Plaintiff’s representative payee from May 2001 through February 2019. Id.

On May 21, 2018, the Social Security Administration (“SSA”) sent a letter to Simmons, on

behalf of Plaintiff, informing her that the SSA was reviewing Plaintiff’s case, because Plaintiff

had reached the age of eighteen and the SSA was required to ensure that Plaintiff was disabled

under the disability rules for adults. See Dkt. No. 18-1. By letter dated July 12, 2019, Plaintiff

was informed by the SSA that, as of April 1, 2019, he no longer qualified for SSI benefits under

the Act’s definition of disability for adults, and that his SSI benefit payments would cease on

June 30, 2019. Dkt. No. 18-1 at ECF p. 2. The letter also contained information on how to

appeal the decision, noting that the appeal had to be filed within ten days for payments to

continue. Id. Plaintiff appealed and requested reconsideration of his disability decision on

December 12, 2019. See Dkt. No. 18-3.

In a decision dated May 27, 2021,1 an Administrative Law Judge (“ALJ”) deemed

Plaintiff disabled (the “May 2021 Decision”). Dkt. No. 1 ¶ 4; Dkt. No. 18-4 ¶ 18. Plaintiff did

not appeal the favorable decision. Dkt. No. 1 ¶ 4. Plaintiff was awarded back payments of

$18,533, $6,000 of which was paid to Plaintiff’s attorney, while the remaining $12,533 was to be

paid to Plaintiff. Dkt. No. 18-5 at ECF p. 2. By letter dated August 13, 2021, Plaintiff was

1 Plaintiff and Defendant disagree whether the Administrative Law Judge’s decision was

rendered May 27 or May 28, 2021. Compare Dkt. No. 1 ¶ 4 (May 27, 2021), with Dkt. No. 18

¶ 2(e) (May 28, 2021). The difference is immaterial.

informed his monthly payment of $752 would begin on September 1, 2021. Id. Because the

amount owed in back payments was more than three times the maximum monthly SSI benefit

payment, the letter explained that it was SSA policy to pay the $12,533 in arears in up to three

installments with six months between each installment. Id. at ECF pp. 2–3. The letter also

identified two situations where Plaintiff would be eligible for different payment structures: First,

Plaintiff could forego installment payments in favor of a full, upfront payment if he was deemed

no longer eligible for SSI benefits or was terminally ill. Id. at ECF p. 3. Second, Plaintiff could

receive a larger initial payment if he provided proof of current debts or expenses for, inter alia,

food, clothing, shelter, medicine or medically necessary services, or that he expected expenses

for, inter alia, medicine or other medically necessary services. Id. The first installment payment

of $2,382 was sent on August 10, 2021. Id.

By letter dated August 20, 2021, Plaintiff was informed that the initial installment

payment was returned to the Department of Treasury and that the SSA would not send any more

payments to Plaintiff until Plaintiff contacted his local Social Security Office. See Dkt.

No. 18-6. In September 2021, Simmons applied to be reinstated as representative payee for

Plaintiff. Dkt. No. 1 at ECF p. 12. This request was denied by the SSA. Dkt. No. 18 ¶ 2(i). On

September 15, 2021, the SSA updated Plaintiff’s payment method to a Direct Express debit card.

Dkt. No 18 ¶ 2(j).

By letter dated February 15, 2022, Plaintiff was informed that his monthly SSI benefit

payments would resume on March 1, 2022 and every month thereafter, because Plaintiff had

provided the necessary information for the SSA to resume payments. See Dkt. No. 18-8. The

February 15 letter also informed Plaintiff that he would be awarded an additional $1,845.50 in

arrear payments for the months of nonpayment between the May 2021 Decision and when

payments resumed. Id. at ECF p. 2. The first installment payment of $2,523 for back payments

was reissued on or before February 12, 2022. Id. at ECF p. 3. Simmons was successfully

reinstated as representative payee of Plaintiff on June 28, 2022. Dkt. No. 23 ¶ 17. The second

installment payment of Plaintiff’s back pay was scheduled for August 2022. Dkt. No. 18 ¶ 2(n).

The record is silent as to whether Plaintiff received this scheduled payment.

PROCEDURAL HISTORY

Plaintiff filed his Complaint and Petition for a Writ of Mandamus on December 14, 2021.

Dkt. No. 1. On May 18, 2022, Defendant filed a motion to dismiss, or in the alternative, a

motion for summary judgment, along with a supporting memorandum of law, Local Rule 56.1

statement, and supporting declaration. Dkt. Nos. 17–20. On July 15, 2022, Plaintiff filed an

affidavit in opposition to the motion to dismiss. Dkt. No. 23. On July 22, 2022, Defendant filed

a reply memorandum of law in further support of its motion. Dkt. No. 24.

LEGAL STANDARD

I. Pro Se Litigants

Because Plaintiff proceeds pro se, the Court is obliged to construe the complaint and

submissions liberally, see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to

raise the “strongest arguments that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d

471, 474 (2d Cir. 2006) (per curiam) (internal quotation marks and citations omitted). However,

“pro se status does not relieve a plaintiff of the pleading standards otherwise prescribed by the

Federal Rules of Civil Procedure.” Saidin v. N.Y.C. Depot of Educ., 498 F. Supp. 2d 683, 687

(S.D.N.Y. 2007).

II. Motions To Dismiss Under Rule 12(b)(1) & 12(b)(6)

Subject matter jurisdiction defines the bounds of a federal court’s adjudicatory authority.

See Bender v. Williamsport Area Sch. Dist., 475 U.S. 536, 541 (1986) (“Federal courts are not

courts of general jurisdiction; they have only the power that is authorized by Article III of the

Constitution and the statutes enacted by Congress pursuant thereto.”). “Dismissal of a case for

lack of subject matter jurisdiction under Rule 12(b)(1) is proper when the district court lacks the

statutory or constitutional power to adjudicate it.” Ford v. D.C. 37 Union Local 1549, 579 F.3d

187, 188 (2d Cir. 2009). The plaintiff bears the burden of proving the instant case is justiciable

in federal court. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). If the court

determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action.

Fed. R. Civ. P. 12(h)(3). Relatedly, a motion to dismiss for failure to state a claim upon which

relief can be granted under Rule 12(b)(6) requires a decision on the merits of a claim, and

therefore, a court must first establish all jurisdictional requirements to adjudicate the claim. See

Okocha v. Disman, 2012 WL 6860892, at *6 (S.D.N.Y. Oct. 1, 2012), report and

recommendation adopted sub nom. Okocha v. Comm’r of Soc. Sec., 2013 WL 163834 (S.D.N.Y.

Jan. 15, 2013).

A. Mootness

Mootness is another element of justiciability under subject matter jurisdiction that the

court should consider sua sponte if not raised by the parties. See Alliance of American

Insurers v. Cuomo, 854 F.2d 591, 605 (2d Cir. 1988) (“[S]subject matter jurisdiction cannot be

waived and may be raised sua sponte by the district court.”). “A case becomes moot when

interim relief or events have eradicated the effects of the defendant’s act or omission, and there is

no reasonable expectation that the alleged violation will recur.” Irish Lesbian & Gay

Organization v. Giuliani, 143 F.3d 638, 647 (2d Cir. 1998). “When a case becomes moot, the

federal courts lack subject matter jurisdiction over the action.” Fox v. Bd. Of Trs. of State Univ.

of N.Y., 42 F.3d 135, 140 (2d Cir. 1994). Thus, a district court can dismiss a moot claim for lack

of subject matter jurisdiction upon a motion to dismiss under Rule 12(b)(1). See, e.g., Doyle v.

Midland Credit Mgmt., Inc., 722 F.3d 78, 80 (2d Cir. 2013) (“Dismissal of a case . . . under rule

12(b)(1) is proper . . . [w]hen a case becomes moot [because] the federal courts lack subject

matter jurisdiction over the action.”).

B. Sovereign Immunity and Judicial Review Under the SSA

Since the defendant in this case is the Commissioner of Social Security, sovereign

immunity and this Court’s subject matter jurisdiction are implicated at the motion-to-dismiss

stage. See Allen on behalf of Jimenez v. Comm’r of Soc. Sec., 2017 WL 1102665, at *2

(S.D.N.Y. Mar. 23, 2017). “The United States, as sovereign, ‘is immune from suit save as it

consents to be sued . . . and the terms of its consent to be sued in any court define that court’s

jurisdiction to entertain the suit.’” United States v. Testan, 424 U.S. 392, 399 (1976) (quoting

United States v. Sherwood, 312 U.S. 384, 587 (1941)). “Absent a waiver, sovereign immunity

shields the Federal Government and its agencies from suit.” Federal Deposit Insurance

Corporation v. Meyer, 510 U.S. 471, 475 (1994). The SSA is an agency of the federal

government and is therefore protected by sovereign immunity, except when waived. Congress

waived sovereign immunity in social security cases in limited circumstances, and over limited

types of agency decisions. See 42 U.S.C. § 405(g), (h).

Administrative actions that are categorized as initial determinations are subject to

administrative and judicial review, 20 C.F.R. § 416.1402, while administrative actions that are

not categorized as initial determinations are not reviewable administratively or by a court,

id.§ 416.1403. Administrative actions that are eligible for the administrative review and

subsequent judicial review include determinations regarding eligibility for and the amount of SSI

benefits, whether and to whom a recipient’s benefits will be paid to a representative payee, and

termination of benefit payments, 20 CFR § 416.1402 (a), (b), (d), (e), because a challenge to

these decisions “impact the very status of claimants and beneficiaries,” Dobson v. Comm’r of

Soc. Sec., 2014 WL 1909363, at *8 (S.D.N.Y. May 12, 2014). In contrast, non-reviewable

administrative decisions, such as “[d]enial of a request to be made payee;” 20 CFR

§ 416.1403(a)(3), are “largely factual and procedural, rendered with little guidance from bodies

of regulatory, statutory, and decisional law . . . [such that] a court asked to review such a

determination could [not] properly assess the process by which it was reached except by coming

to a new, independent decision,” Dobson, 2014 WL 1909363, at *9.

C. Motion to Dismiss Under 12(b)(6)

To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for

failure to state a claim upon which relief can be granted, a complaint must include “sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 570 (2007)). A complaint must offer more than “labels and conclusions,” “a formulaic

recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual

enhancement.” Twombly, 550 U.S. at 555, 557. The ultimate question is whether “[a] claim has

facial plausibility, [i.e.,] the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

678. “Determining whether a complaint states a plausible claim for relief will . . . be a context-

specific task that requires the reviewing court to draw on its judicial experience and common

sense.” Id. at 679. Put another way, the plausibility requirement “calls for enough fact to raise a

reasonable expectation that discovery will reveal evidence [supporting the claim].” Twombly,

550 U.S. at 556; see also Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27, 46 (2011).

III. Jurisdiction Under the Mandamus Act

Section 1361 of Title 28 of the United States Code (the “Mandamus Act”) provides an

alternate, albeit limited, source by which a district court can exercise jurisdiction over a claim

under the Act, apart from Section 405(g) or 405(h). See City of New York v. Heckler, 742 F.2d

729, 739 (2d Cir.1984), aff’d sub nom. Bowen v. City of New York, 476 U.S. 467, 483 (1986)

(“[I]t is settled in this and other circuits that, notwithstanding the sweeping language of

section 405(h), mandamus jurisdiction is available under circumstances where the writ properly

would issue.”); Coe v. Saul, 2020 WL 6729169, at *7 (S.D.N.Y. Nov. 16, 2020) (considering

whether mandamus review was appropriate after determining review was unavailable under

Section 405(g)); see also Heckler v. Ringer, 466 U.S. 602, 616 (1984). The Mandamus Act

provides jurisdiction to review otherwise unreviewable procedural issues that are not related to

the merits of a claim for benefits. See Clemmons v. Comm’r of Soc. Sec., 2012 WL 1107661, at

*5 (E.D.N.Y. Mar. 20, 2012) (quoting Dietsch v. Schweiker, 700 F.2d 865, 868 (2d. Cir. 1983)).

Under the Mandamus Act, district courts have “original jurisdiction of any action in the

nature of mandamus to compel an officer or employee of the United States or any agency thereof

to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. “[M]andamus jurisdiction may be

appropriate where a claimant has no other means to compel the SSA to perform a perfunctory

statutory duty or to apply its own nondiscretionary regulations and procedures.” Proco v. Saul,

2021 WL 1131259 at *5 (N.D.N.Y. Feb. 22, 2021). The basic conditions required for mandamus

jurisdiction are: “(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.” Lovallo v. Froehlke, 468 F.2d 340, 343 (2d Cir. 1972). “Mandamus is an

extraordinary remedy, available only in extraordinary circumstances.” Aref v. United States,

452 F.3d 202, 206 (2d Cir. 2006).

DISCUSSION

Plaintiff filed a complaint and petition for a writ of mandamus in this Court on December

14, 2021, seeking an order to (1) expedite “the full amount of arrears and social security services

authorized by the” May 2021 Decision, Dkt. No. 1 at ECF p. 5; (2) provide that “all records of

[Plaintiff] reflect his re-instatement of Social Security benefits and supplemental income

retroactively,” id.; (3) provide that “any outstanding payment for medical treatment, housing and

other expenses are reviewed by the [SSA] and to be included in the awards as are necessary,” id.;

and (4) reinstate Simmons as representative payee of Plaintiff, id. at ECF pp. 8–9.

Defendant argues that this Court does not have jurisdiction to review internal agency

administrative decisions regarding how the SSA decides to comply with the May 2021 Decision

because the decision was fully favorable to Plaintiff and Plaintiff has not exhausted his

administrative remedies “with respect to a request to increase the amount of his installment

payments.” Dkt. No. 20 at 1. Defendant further argues that the Court lacks jurisdiction over the

SSA’s decision not to increase the amount of the installment payments, to appoint a

representative payee, and to order the SSA to update Plaintiff’s paperwork, because they are

administrative actions not subject to judicial review. Id. at 1, 8. Finally, Defendant argues that a

grant of mandamus jurisdiction is an extraordinary remedy and Plaintiff has failed to meet the

necessary conditions for such an expression of judicial power. Id. at 7–9.

I. Enforcement of the May 2021 Decision

Plaintiff requests that the Court enforce the May 2021 Decision by requiring the SSA to

pay Plaintiff the full amount of money owed in arrears. Dkt. No. 1 ¶ 9, ECF p. 5. Defendant

argues that this Court does not have jurisdiction to review the May 2021 Decision because it was

fully favorable to Plaintiff and Plaintiff did not fully exhaust his administrative remedies. Dkt.

No. 20 at 6–7. Plaintiff counters that the Court has jurisdiction to review the May 2021 Decision

because it was a “final determination,” Dkt. No. 23 ¶ 19, and even though it was favorable,

Defendant has failed to provide the relief accorded by the May 2021 Decision, id. ¶ 23.

SSA regulations dictate that payments of large sums “will be paid in not more than 3

installments and made at 6-month intervals.” 20 C.F.R. § 416.545(b). The Act also provides the

SSA with the option to increase the first and second installment payments by the amount of

outstanding debt for food, clothing, shelter or other medical services and equipment. See

42 U.S.C. § 1383(a)(10)(B); 20 C.F.R. § 416.545(d)(1). These debts must be “documented.”

See POMS SI 02101.020 (S.S.A.). By letter dated September 17, 2021, Simmons, on behalf of

Plaintiff, requested a “big amount” of the past-due payments, because Plaintiff “is suffering

financial hardship d[ue] to pas[t] due debts: bills, rent, light and gas & etc.” Dkt. No. 1 at ECF

pp. 8–9. Plaintiff claims that he has “encountered serious debts for living conditions, food,

shelter, dental and medical expenses.” Dkt. No. 1 ¶ 14. Defendant argues that Plaintiff has not

claimed that he provided documentation for his outstanding debts to the SSA. See Dkt. No. 1 at

8–9; Dkt. No. 20 at 11. The Court finds that it lacks jurisdiction to review the May 2021

Decision, including the decision to award Plaintiff back payments in three installments, because

it was fully favorable to Plaintiff and Plaintiff failed to exhaust his administrative remedies.

The Second Circuit “ha[s] long held that our judicial review over Social Security

determinations pursuant to 42 U.S.C § 405(g) ‘makes no provision for judicial review of a

determination favorable to the complainant.’” Heller v. Commissioner of Soc. Sec., 328 F.

App’x 74 (2d Cir. 2009) (quoting Jones v. Califano, 576 F.2d 12, 18 (2d Cir. 1978)); see also

Louis v. Comm’r of Soc. Sec., 349 F. App’x 576, 578 (2d Cir. 2009) (upholding district court

decision that court lacked jurisdiction to review a fully favorable SSA decision). By Plaintiff’s

own acknowledgement, the May 2021 Decision was fully favorable. See Dkt. No. 1 at ECF p. 2

(“In this instant matter the decision was favorable.”). The ALJ deemed Plaintiff disabled. See

Dkt. No. 18-4 ¶ 18. As a result, the SSA initiated monthly payments and agreed to issue back

payment in three installments to compensate Plaintiff for the period during which he was not

deemed disabled. See Dkt. No. 18-5 at ECF pp. 2–3. Because the decision was fully favorable,

the Court lacks jurisdiction to review it.

The Court also lacks jurisdiction to review the decision because, contrary to Plaintiff’s

assertion, it was not a “final decision.” The Act provides for judicial review over decisions

“after any final decision of the Commissioner of Social Security made after a hearing to which

he was a party.” 42 U.S.C § 405(g). Whether or not a decision is “final” depends on two

components: “(1) a non-waivable requirement that a claim for benefits has been presented to the

[SSA], and (2) a waivable requirement that the administrative remedies prescribed by the [SSA]

have been exhausted.” Iwachiw v. Massanari, 125 F. App’x. 330, 331 (2d Cir. 2005). To obtain

a judicially reviewable “final decision” as construed by SSA regulations, see Weinberger v. Salfi,

422 U.S. 749, 766 (1975) (concluding that the definition of “final decision” has been “left to the

[Commissioner] to flesh out by regulation”), a claimant must exhaust a four-step administrative

process, see Louis v. Comm’r of Soc. Sec., 2010 WL 743939, at *2 (S.D.N.Y. Mar. 2, 2010)

(“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.”). This four-step process involves (1) an agency initial determination;

(2) reconsideration; (3) hearing before an ALJ; and (4) Appeals Council review. See 20 C.F.R.

§§ 404.900, 416.1400.

The May 2021 Decision is not reviewable under Section 405(g) because it is not a “final

decision.” Plaintiff presented a case to the SSA to receive benefits, see Dkt. No. 1 ¶¶ 1–2, and

thus satisfied the non-waivable requirement for this Court’s jurisdiction, see e.g., Jones, 576 F.2d

at 18 (“It is undisputed that appellants, by filing claims with the SSA, have satisfied the non-

waivable requirement.”). However, Plaintiff failed to exhaust his administrative remedies, and

Plaintiff has not presented facts to suggest that this requirement should be waived.

Any determination of an individual’s “eligibility for” or “termination of” SSI benefits is

considered an “initial determination.” See 20 C.F.R § 416.1402(a), (b). The initial

determination of Plaintiff’s claim was made by the SSA through the July 12, 2019 letter

informing Plaintiff that he did not meet the definition of disability for adults under the Act and

that his benefits would be terminated on June 30, 2019. See Dkt. No. 18-2; see also Okocha,

2012 WL 6860892, at *14 (finding termination of SSI benefits constitutes an initial

determination). Plaintiff also satisfied the second step in the administrative process, by filing a

Request for Reconsideration of the decision denying him benefits. See Dkt. No. 18-3; see also

Okocha, 2012 WL 6860892, at *14 (finding plaintiff had fulfilled the reconsideration step when

he filed a “Request for Reconsideration”). Finally, Plaintiff satisfied the third step of the

exhaustion requirement as a result of the hearing held before the ALJ, who rendered the May

2021 Decision overturning the initial determination that Plaintiff was not disabled. See Dkt.

No. 18-5. However, Plaintiff has not satisfied the final step necessary for a decision to be

deemed “final”: Plaintiff, by his own admission, failed to appeal the May 2021 Decision to the

Appeals Council. See Dkt. No. 1 ¶ 4. The May 2021 Decision thus is not “final” and not subject

to judicial review. See Sims v. Apfel, 530 U.S. 103, 107 (2000) (“If a claimant fails to request

review from the Appeals Council, there is no final decision and, as a result, no judicial review.”).

In limited circumstances, the exhaustion requirement can be waived. See Abbey v.

Sullivan, 978 F.2d 37, 44 (2d Cir.1992) (“Exhaustion is the rule, waiver the exception.”).

Exhaustion “may be waived either by the [Commissioner] or, in appropriate circumstances, by

the courts.” City of New York, 742 F.2d at 736. The Commissioner has not waived the

exhaustion requirement in this case. A court may waive the exhaustion requirement when “a

claimant’s interest in having a particular issue resolved promptly is so great that deference to the

agency’s judgement is inappropriate.” Mathews v. Eldrige, 424 U.S 319, 329 (1976). In the

context of social security benefits, the court should consider: “(1) whether the claim is collateral

to a demand for benefits; (2) whether exhaustion would be futile; and (3) whether the plaintiffs

would suffer irreparable harm if required to exhaust their administrative remedies before

obtaining relief.” Abbey, 978 F.2d at 44. When determining whether exhaustion should be

waived, “[n]o one element is critical to the resolution of the [exhaustion] issue; rather, a more

general approach, balancing the competing considerations to arrive at a just result, is in order.”

New York v. Sullivan, 906 F.2d 910, 918 (2d Cir. 1990).

The Court cannot waive Plaintiff’s failure to exhaust administrative remedies. A claim is

collateral to claims for benefits if the plaintiff “neither sought nor [is] awarded benefits in the

District Court.” Bowen, 476 U.S. at 483; see Jones, 576 F.2d at 18 (2d Cir. 1996) (deeming

constitutional challenge to the SSA’s policy of reviewing claims collateral to claim for benefits).

Plaintiff’s claim is not collateral to a demand for benefits—it is an express demand for his back

payments to be expedited. Nor would exhaustion of remedies be futile. Courts have found

exhaustion futile where the plaintiff seeks to challenge a regulation, as opposed to correcting an

error in the administrative application of a regulation. See, e.g., St. Francis Hospital v. Sebelius,

2012 WL 2000841, at *6 (E.D.N.Y. June 5, 2012) (deeming exhaustion futile because plaintiffs

challenged validity of regulations and while “mere deviation from the applicable regulations . . .

[is] fully correctable upon subsequent administrative review, . . . the validity of the regulations

and procedures themselves is a different matter” (internal quotation marks and citation omitted)).

“By contrast, the ‘policies favoring exhaustion are most strongly implicated by actions . . .

challenging the application of concededly valid regulations’ because SSA’s ‘expertise in

administering its own regulations, [demands that it] ordinarily should be given the opportunity to

review application of those regulations to a particular factual context.’” Okocha, 2012 WL

6860892, at *10 (emphasis in original) (quoting Abbey, 978 F.2d at 44–45). Plaintiff here

challenges the application of the SSA’s regulations governing the installment payment, which

militates against excusing the exhaustion requirement. See Dkt. No. 1 at ECF p. 5.

Finally, Plaintiff would not suffer irreparable harm if required to exhaust his

administrative remedies. Irreparable 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.” Smith v. Schweiker,

709 F.2d 777, 780 (2d Cir. 1983). Generally, irreparable harm can be established when the

termination or denial of benefits would subject a plaintiff to deteriorating physical health. See

Eldridge, 424 U.S. at 331 (claimant 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”); Abbey, 978 F.2d at 46

(concluding that “waiver may be appropriate” where “the delay attending exhaustion would

subject claimants to deteriorating health”). Here, Plaintiff contends that he “will suffer

irreparable harm and damage” because the three-year gap in disability payments “caus[e]d

anxiety and stress that affects [Plaintiff’s] disability.” Dkt. No. 1 ¶ 18. However, Plaintiff is

currently receiving SSI benefits and expects to receive the payments for the gap in coverage.

This is not a case where Plaintiff faces a complete lack of coverage that would result in

deteriorating health. Thus, the Court cannot waive the exhaustion requirement for the May 2021

Decision.

Because Plaintiff has not exhausted his administrative remedies, the Court is unable to

review the SSA’s decision to award Plaintiff back payments in three installments, each scheduled

six months apart. See Allen, 2017 WL 1102665, at *2 (Plaintiff “does not allege in [his]

complaint that [he] has exhausted [his] administrative remedies such that the Court has subject

matter jurisdiction over [his installment payment] claim[].”). Plaintiff has likely received two of

the three installment payments: The first payment was issued on February 12, 2022 and the

second payment was scheduled to be issued in August 2022, though the record is silent as to

whether this payment was made. Id.; Dkt. No. 18 ¶ 2(n). Though Plaintiff is entitled to one

additional payment, the Court does not have jurisdiction to review the SSA’s installment

payment schedule.2

II. Plaintiff’s Other Requested Relief

Plaintiff also requests the reinstatement of Simmons as Plaintiff’s representative payee

and that the Court order the SSA to update his benefits records. Dkt. No. 1 at ECF pp. 5, 8–9.

Defendant argues that the requested relief does not fall into the narrow category of agency

actions that are reviewable by federal courts. Dkt. No. 20 at 8, 12. The Court finds that the

relief requested by Plaintiff is not judicially reviewable.

A. Reinstating Simmons as Plaintiff’s Representative Payee

Plaintiff requests reinstatement of Simmons as representative payee of Plaintiff. Dkt.

No. 1 at ECF pp. 8–9. Defendant argues that the Court lacks jurisdiction to do so because it is an

administrative decision that is not subject to judicial review. Dkt. No. 20 at 12. The Court finds

that Plaintiff’s claim is non-judiciable.

2 Plaintiff’s conclusory argument that the SSA’s decision was “final” does not alter this

conclusion. See Dkt. No. 23 ¶ 19.

This Court does not have subject matter jurisdiction to review the selection of a

representative payee for Plaintiff. The SSA’s decision to deny Simmons application to be

representative payee for Plaintiff at the time Plaintiff filed his complaint and petition for a writ of

mandamus falls squarely into the category of non-reviewable agency decisions. See 20 CFR

§ 416.1403(a)(3) (stating that “[d]enial of a request to be made a representative payee” is not an

“initial determination . . . subject to judicial review”); see also Simons v. Comm’r of Soc. Sec.,

2021 WL 4711324, at *10 (S.D.N.Y. Sept. 15, 2021), report and recommendation adopted, 2021

WL 4710815 (S.D.N.Y. Oct. 8, 2021) (“The denial of a request to be made a representative

payee is not subject to the administrative review process or judicial review.”). Additionally,

Simmons, by Plaintiff’s own acknowledgment, was successfully reinstated as representative

payee of Plaintiff on June 28, 2022. See Dkt. No. 23 ¶ 17. Thus, Plaintiff’s claim is moot and is

dismissed under Rule 12(b)(1) motion.

B. Updating Plaintiff’s Records to Reflect Benefits Reinstatement and Arrear

Payments

In her September 17, 2021 letter, Simmons, on behalf of Plaintiff, requested an award

letter from the SSA, Dkt No. 1 at ECF ¶. 8–9, and in this action Plaintiff requests that “all

records of [Plaintiff’s] reflect his re-instatement of Social Security benefits and supplemental

income retroactively,” id. at ECF p. 5. Defendant argues that these actions are administrative

actions not subject to judicial review. Dkt. No. 20 at 10.

Plaintiff first requests that this Court direct the SSA issue an award letter. This request is

moot. The SSA sent to Plaintiff on August 13, 2021, detailing Plaintiff’s reinstated monthly

benefits, payment of his past-due benefits, and the payment schedule for both. Dkt. No. 18-5 at

ECF pp. 2–3. Additionally, the SSA sent another award letter detailing Plaintiff’s payment

schedule for prospective and past-due payments on February 15, 2022, after it received the

necessary information to restart payments. See Dkt. No. 18-8.

Next, Plaintiff requests that this Court direct the SSA to revise Plaintiff’s records. The

Court, however, does not have the ability to require the SSA to revise administrative records.

The content of and process of updating agency paperwork falls squarely within the category of

agency actions that are not reviewable; they are inherently related to the administration of agency

affairs. See 20 C.F.R §416.1403; Dobson, 2014 WL 1909363, at *8–9 (describing non-

reviewable agency actions as those “related to the administration of SSA’s affairs, not

substantive determinations of a claimant’s status and the nature of his benefits”). Therefore, this

Court lacks jurisdiction to review the SSA’s determination with respect to Plaintiff’s records.

III. Mandamus Jurisdiction

Plaintiff argues that the Court can exercise jurisdiction in this case because the Court has

mandamus jurisdiction. Plaintiff claims that mandamus jurisdiction is appropriate because he

has a clear right to the awards granted in the May 2021 Decision, Dkt. No. 1 ¶¶ 4–5, Defendant

has failed to expeditiously comply with that decision, id. ¶¶ 6–9, and immediate compliance with

the May 2021 Decision is necessary to alleviate the harms suffered by Plaintiff while his SSI

benefits were terminated, id. ¶¶ 14, 18. Defendant counters that Plaintiff has failed to identify a

non-discretionary duty owed by the SSA that has been “plainly denied” to him and has failed to

demonstrate that he has “no other adequate remedy.” Dkt. No. 20 at 8–9 (citation omitted).

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.” Lovallo, 468

F.2d at 343; see also Heckler v. Ringer, 466 U.S. 602, 616 (“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 established a clear right either to a change in the

distribution of back payments or to an alteration of Plaintiff’s paperwork. As described above,

any decision to update Plaintiff’s paperwork would not represent an initial determination not

reviewable administratively or by a court. Dobson, 2014 WL 1909363, at *13 (concluding that

mandamus jurisdiction is inappropriate where the plaintiff is not entitled to administrative or

judicial review). And the SSA’s decision whether to increase the first and second installments to

compensate Plaintiff for allowable debts and expenses appears to be discretionary. See

42 U.S.C. § 1383(a)(10)(B) (stating that these payments “may be increased by the total amount

of” documented relevant debts and expenses (emphasis added)); 20 C.F.R. § 416.545(d)(1)

(same). Even if the decision to increase the installment payments were not discretionary,

Plaintiff has not demonstrated that he is entitled to the requested relief, which requires proof of

permissible debts and expenses, and Plaintiff has not exhausted all remedies with respect to the

May 2021 Decision. See Escalera v. Comm’r of Soc. Sec., 457 F. App’x 4, 7 (2d Cir. 2011)

(denying mandamus relief because plaintiff “did not prove that ‘no other adequate remedy’ (i.e.,

completing the administrative process) was available” (quoting Benzman v. Whitman, 523 F.3d

119, 132–33 (2d Cir.2008))). Thus, mandamus jurisdiction is inappropriate in this case.

IV. Motion to Dismiss Under Rule 12(b)(6)

Finally, Plaintiff requests that “any outstanding payment for medical treatment, housing

and other expenses [be] reviewed by the [SSA] and . . . included in the awards as are necessary.”

Dkt. No. 1 at ECF p. 5. This final claim sounds in damages. Defendant argues that damages are

not contemplated by the Act and the Act does not create a private right of action and moves to

dismiss for failure to state a claim. Dkt. No. 20 at 12–13. The Court finds that Plaintiff cannot

state a claim for damages.

Congress never intended to include a cause of action for monetary damages in the Act.

See Schweiker v. Chilicky, 487 U.S. 412, 414 (1988) (holding that a “cause of action for money

damages [under the SSA] . . . not having been included in the elaborate remedial scheme devised

by Congress, is unavailable”); see also Davis v. Comm’r of Soc. Sec., 2016 WL 3390586, at *5

(S.D.N.Y. Apr. 16, 2016) (“It is well-settled that the [SSA] itself does not bestow a private right

of action for monetary relief.”). Plaintiff’s claim appears to be one for compensation for

damages incurred during the administrative process, above and beyond the past-due payments to

which Plaintiff is entitled. Although the Court sympathizes with Plaintiff’s financial hardship,

the Act does not create a separate cause of action for plaintiffs to claim monetary relief. See

Raitport v. Apfel, 8 F. App’x 118, 122 (2d Cir. 2001) (finding claims requesting the SSA

Commissioner pay electric bills until SSA paperwork is corrected frivolous). As such, this claim

is not cognizable in this Court and is dismissed.

CONCLUSION

Defendant’s motion to dismiss the Complaint for lack of subject matter jurisdiction and

failure to state a claim is GRANTED. Because the Court has dismissed this action, it does not

address Defendant’s motion for summary judgment, which was submitted in the alternative.

The Clerk of Court is respectfully directed to close Dkt. No. 14 and to close the case.

The Court finds that any amendment would be futile. See McCarthy v. Dun & Bradstreet Corp.,

482 F.3d 184, 200 (2d Cir. 2007) (“[I]t is within the sound discretion of the district court to grant

or deny leave to amend. A district court has discretion to deny leave for good reason, including

futility, bad faith, undue delay, or undue prejudice to the opposing party.”) (internal citations

omitted); Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (repleading would be futile when

the “problem with [the pleader’s] causes of action is substantive’).

SO ORDERED.

en ee

Dated: February 1, 2023 el ME nn

New York, New York LEWIS J. LIMAN

United States District Judge

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