The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
BRENDA R.,
Plaintiff,
6:26-CV-539
v. (DJS)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
APPEARANCES: OF COUNSEL:
BRENDA R.
«| Plaintiff Pro Se
Indian Lake, New York 12842
U.S. SOCIAL SECURITY ADMIN. VERNON NORWOOD, ESQ.
OFFICE OF THE GENERAL COUNSEL
Attorney for Defendant
6401 Security Boulevard
Baltimore, Maryland 21235
DANIEL J. STEWART
United States Magistrate Judge
]
MEMORANDUM-DECISION AND ORDER!
On April 6, 2026, Plaintiff commenced this action, using a form complaint, in
which she “complains of a decision which adversely affects the plaintiff in whole or in
| part.” Dkt. No. 1, Compl., ] 2. The Complaint alleges that it challenges a final decision
of Defendant. /d. And while the Complaint alleges that a copy of the Appeals Council
decision is included, id. at § 3, no such decision is attached. Defendant moves to dismiss
the Complaint alleging that no final, adverse determination has been issued against
Plaintiff and, therefore, this matter is not ripe for the Court’s review. Dkt. No. 9.
Plaintiff has responded to the Motion. Dkt. No. 13.
For the reasons set forth below, the Motion is granted and the Complaint is
dismissed.
This Court has the authority to review an adverse decision from the
Commissioner of Social Security under 42 U.S.C. § 405(g). That statute “allows federal
courts to review ‘any final decision of the Commissioner . . . after a hearing.’” Nunez
v. Comm’r of Soc. Sec., 848 F. App’x 35 (2d Cir. 2021) (quoting 42 U.S.C. § 405(g)).
There is a four-step procedure for a claimant to obtain a final decision
subject to judicial review: (1) the claimant files an application and receives
an initial determination, (2) the claimant may request reconsideration by
filing a written request, (3) the claimant may challenge the decision on
reconsideration by requesting a hearing before an ALJ, and (4) if
' Upon Plaintiff’s consent, the United States’ general consent, and in accordance with this District’s General
Order 18, this matter has been referred to the undersigned to exercise full jurisdiction pursuant to 28 U.S.C. §
636(c) and Federal Rule of Civil Procedure 73. See Dkt. No. 4 & General Order 18.
dissatisfied with the hearing decision, the claimant may request review by
the Appeals Council within 60 days of receiving notice of the hearing
decision.
Id. (citing 20 C.F.R. §§ 404.900(a), 404.968(a)). “It is well settled that . . . judicial
review of Social Security benefit determinations is limited to ‘final’ decisions of the
Commissioner made after a hearing, that available administrative procedures must be
exhausted and that a final decision is a prerequisite for subject matter jurisdiction in the
District Court.” Mathews v. Chater, 891 F. Supp. 186, 188 (S.D.N.Y. 1995).
The record establishes that Plaintiff sought and was granted Title X VI benefits
as of May 1, 2001. Dkt. No. 9-1, § 3(a). It appears that she continues to receive benefits.
«| /d. Defendant has no record of an adverse determination against Plaintiff. /d. at [¥ 3(b)-
(c). The record, therefore, is devoid of evidence of a denied claim, a hearing before an
Administrative Law Judge, or a decision from the Appeals Council. Absent that
evidence the record demonstrates that “Plaintiff failed to follow the steps for reaching a
final decision, as promulgated by the Commissioner and, thus, failed to exhaust her
administrative remedies. Accordingly, pursuant to 42 U.S.C. § 405(g), the Court lacks
jurisdiction over Plaintiff’s claims.” Leong v. Comm’r of Soc. Sec., 2011 WL 13599341,
at *2 (N.D.N.Y. July 25, 2011); see also Gist v. Comm ’r of Soc. Sec., 2008 WL 4239593,
at *3 (N.D.N.Y. Sept. 11, 2008).
In rare circumstances exhaustion may be waived, but exhaustion is the
rule, waiver is the exception. The court considers three factors in making
its determination: (1) whether the plaintiff's claim is collateral to the
demand for benefits; (2) whether exhaustion would be futile, and (3)
whether requiring exhaustion would cause irreparable harm to plaintiff.
Jason P. v. Comm’r of Soc. Sec., 2020 WL 2079411, at *3 (N.D.N.Y. Apr. 30, 2020)
(internal quotations and citations omitted). Plaintiff has not established that any of these
exceptions are applicable here. Plaintiff has not suggested that this matter is collateral
to a claim for denial of benefits. Nor is there any real basis for claiming that exhaustion
would be futile or that requiring exhaustion would cause harm.
ACCORDINGLY, it is
ORDERED, that Defendant’s Motion to Dismiss is GRANTED; and it is further
ORDERED, that Plaintiff's Complaint is DISMISSED; and it is further
ORDERED, that the Clerk of the Court shall serve copies of this Memorandum-
Decision and Order on the parties.
Dated: August 25, 2026
Albany, New York
U.SMMfagistrate Judge
2011 WL 13599341 to Fed. R. Civ. P. 12(b) for lack of jurisdiction and improper
Only the Westlaw citation is currently available. venue.
United States District Court, N.D. New York.
Gail LEONG, Plaintiff, II. STANDARD OF REVIEW
“A case is properly dismissed for lack of subject matter
v.
jurisdiction under Rule 12(b)(1) when the district court
COMMISSIONER OF SOCIAL SECURITY, Defendant.
lacks the statutory or constitutional power to adjudicate it.”
8:11-CV-00370 Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)
| (citing Fed. R. Civ. P. 12(b)(1)). Pursuant to 42 U.S.C. §
Signed July 25, 2011 405(g), an individual must obtain a “final decision of the
Commissioner” before a federal court has jurisdiction over
Attorneys and Law Firms the claim. See Heckler v. Ringer, 466 U.S. 602, 617 (1984);
Califano v. Sanders, 430 U.S. 99, 108 (1977); Matthews v.
Gail Leong, Van Buren, ME, Pro Se. Chater, 101 F.3d 681, 681 (2d Cir. 1996) (“Pursuant to 42
U.S.C. § 405(g), an individual must obtain a ‘final decision
Suzanne M. Haynes, Social Security Administration, Office
of the Secretary’ before judicial review of Social Security
of Regional General Counsel, New York, NY, for Defendant.
benefit determinations is granted.”) (affirming the district
court's dismissal for lack of subject matter jurisdiction when
the plaintiff failed to exhaust all administrative remedies).
DECISION and ORDER
THOMAS J. McAVOY, Senior United States District Judge III. DISCUSSION
*1 Plaintiff Gail Leong commenced this action pro se a. Failure to Exhaust Administrative Remedies
asserting claims pursuant to the Americans with Disabilities Defendant moves to dismiss Plaintiff's Complaint on the
Act of 1990 (“ADA”); Title VII of the Civil Rights Act of ground that she failed to her exhaust administrative remedies
1964 (“CRA”); and 42 U.S.C. § 1983, based on the Social before filing the instant action and, thus, the Court lacks
Security Administration's refusal to allow her to choose her subject matter jurisdiction over the case. As stated above,
own medical evaluator. 42 U.S.C. § 405(g) requires the SSA to reach a final
decision on a claim before it can be brought in federal court.
Although the statute does not define the term “final decision,”
I. FACTS
the Commissioner has set forth a detailed administrative
The following facts are taken from Plaintiff's Complaint and,
process. See Weinberger v. Salfi, 422 U.S. 749, 766 (1975)
for purposes of the instant motion, are deemed to be true.
(holding that the Commissioner is to “flesh out by regulation”
what constitutes a “final decision.”) Under these regulations,
Plaintiff is currently a resident of Van Buren, Maine and
an individual must: (1) receive an initial determination of
is receiving disability benefits from the Social Security
benefits; (2) if unsatisfied with the determination, ask for a
Administration (“SSA”). To keep receiving benefits, she must
reconsideration; (3) request and appear at a hearing before an
be periodically evaluated by a medical professional chosen
administrative law judge; and (4) request the Appeals Council
by the SSA. According to Plaintiff, patients are not permitted
to review the decision by an administrative law judge. 20 C.
to verify the qualifications of the medical evaluator and
F. R. § 404.900. Only after these four steps are completed
the SSA does not take the individual needs of patients into
can a plaintiff file an action seeking district court review. Id.
account when selecting the medical professional. Plaintiff
Completion of the administrative process is “central to the
requested that her next medical evaluation be performed at
requisite grant of subject-matter jurisdiction.” Weinberger v.
the Adirondack Medical Center in Saranac Lake, New York.
Salfi, 422 U.S. 749, 764 (1975).
Plaintiff commenced the instant action seeking an order
*2 Here, Plaintiff's sole argument is that she should be able
requiring SSA to permit her to receive her next medical
to select the medical professional who will conduct her next
and is not up for a review of those benefits until November To the extent Plaintiff's Complaint may be considered to be
2011. Plaintiff failed to follow the steps for reaching a final asserting a claim pursuant to Bivens v. Six Unknown Named
decision, as promulgated by the Commissioner and, thus, Agents of the Federal Bureau of Narcotics, 403 U.S. 388
failed to exhaust her administrative remedies. Accordingly, (1971), it must be dismissed. In Bivens, the Supreme Court
pursuant to 42 U.S.C. § 405(g), the Court lacks jurisdiction recognized an implied private cause of action for damages
over Plaintiff's claims. against federal officers who violate a citizen's constitutional
rights. Nothing in Plaintiff's Complaint plausibly suggests the
violation of any constitutional right. Accordingly, Plaintiff's
b. Title VII, ADA, and § 1983 Claims Complaint is dismissed.
Plaintiff's Complaint may be read to be asserting claims
pursuant to Title VII, the ADA, and § 1983. Title VII,
the ADA, and § 1983 do not apply to a federal agency IV. CONCLUSION
implementing a federal program. Soberal-Perez v. Heckler, For the reasons stated above, the Defendant's motion to
717 F.2d 36, 38 (2d Cir. 1983) (Title VII “was meant to cover dismiss is GRANTED and the Complaint is DISMISSED IN
only those situations where federal funding is given to a non- ITS ENTIRETY.
federal entity which, in turn, provides financial assistance
to the ultimate beneficiary.”); Cellular Phone Taskforce v. IT IS SO ORDERED.
F.C.C., 217 F.3d 72, 73 (2d Cir. 2000) (“Title II of the ADA
is not applicable to the federal government.”); Kingsley v.
All Citations
Bureau of Prisons, 937 F.2d 26, 30 n. 4 (2d Cir. 1991) (an
action brought pursuant to § 1983 “cannot lie against federal Not Reported in Fed. Supp., 2011 WL 13599341
officers.”). Insofar as these statutes do not apply to the federal
government, they must be dismissed.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
2008 WL 4239593 Defendant moves to dismiss the complaint. (Dkt. No. 11.)
Only the Westlaw citation is currently available. Plaintiff opposes the motion. (Dkt. No. 121.) Because I find
United States District Court, that Plaintiff failed to exhaust his administrative remedies, I
N.D. New York. recommend that the motion to dismiss be granted.
David L. GIST, Sr., Plaintiff, 1 Plaintiff filed additional opposition papers on
v.
May14 and May 20, 2008. Those papers were not
COMMISSIONER OF SOCIAL SECURITY, Defendant.
served on Defendant, and will thus be rejected for
filing. Consideration of the papers would not have
No. 5:07–CV–1246.
changed the undersigned's recommendation.
|
Sept. 11, 2008.
I. PROCEDURAL HISTORY
Attorneys and Law Firms Plaintiff applied for Supplemental Security Income (“SSI”)
on September 23, 2002. (Herbst Decl. Ex. 2.) On January 20,
David L. Gist, Sr., Syracuse, NY, pro se. 2005, the Social Security Administration (“SSA”) informed
Plaintiff in writing that he was eligible to receive monthly
Hon. Glenn T. Suddaby, United States Attorney for the
SSI payments, including retroactive payments to January
Northern District of New York, Vernon Norwood, Esq.,
1, 2003. Id. The SSA's letter included a calculation of the
Special Assistant United States Attorney, of Counsel, Street
payments owed to Plaintiff and a description of how the
Syracuse, NY, for Defendant.
calculation was performed. Id. The letter advised Plaintiff
that he could appeal the SSA's calculation of benefits by
requesting reconsideration in writing within 60 days of
DECISION and ORDER receiving the letter. The letter stated that the S SA “will
ask you to sign a form SSA–561–U2, called ‘Request for
THOMAS J. McAVOY, Senior District Judge.
Reconsideration.’ “ Id.
*1 This matter brought pursuant to the Americans with
Disabilities Act, 41 U.S.C. § 12101 was referred to the On April 6, 2005, the SSA informed Plaintiff in writing that
Hon. George H. Lowe, United States Magistrate Judge, for a he was entitled to Disability Insurance Benefits, retroactive
Report–Recommendation pursuant to 28 U.S.C. § 636(b) and to September 2001. (Herbst Decl. Ex. 3.) However, the
Local Rule 72.3(c). SSA stated that “[w]e are withholding your Social Security
benefits for September 2001 through March 2005. We may
No objections to the May 27, 2008 Report–Recommendation have to reduce these benefits if you receive ... SSI ... for this
have been raised. After examining the record, this Court has period.” Id. Again, the letter advised Plaintiff of the steps to
determined that the Report–Recommendation is not subject to take if he wanted to appeal the decision. Id.
attack for plain error or manifest injustice. Accordingly, this
Court adopts the Report–Recommendation for the reasons On April 11, 2005, SSA informed Plaintiff in writing that
stated therein and DISMISSES the petition. his SSI payments would cease beginning on May 1, 2005,
because his receipt of Disability Insurance Benefits rendered
him economically ineligible for SSI. (Herbst Decl. Ex. 4.)
IT IS SO ORDERED. Again, the letter advised Plaintiff of the steps to take if he
wanted to appeal the decision. Id.
REPORT AND RECOMMENDATION
On June 5, 2005, the SSA informed Plaintiff in writing that
GEORGE H. LOWE, United States Magistrate Judge. “we cannot pay you all of the Social Security benefits that
we withheld. This is because you received SSI money for
This matter was referred to the undersigned for report September 2002 through June 2005.” (Herbst Decl. Ex. 5.)
and recommendation by the Honorable Thomas J. McAvoy, However, the SSA informed Plaintiff that he would “soon
decision. Id. when a plaintiff appears pro se, the court must read the
complaint liberally. Shah v. N.Y. Dep't of Civil Serv., 168
*2 On August 1, 2005, the SSA informed Plaintiff in writing F.3d 610, 614 (2d Cir.1999). The court may also refer to
that, because of his income, he had not been eligible for SSI evidence outside the pleadings and the plaintiff carries the
payments in October 2003 and April 2004. (Herbst Decl. Ex. burden of proving by a preponderance of the evidence that
6.) Again, the letter advised Plaintiff of the steps to take if he subject matter jurisdiction exists. Makarova, 201 F.3d at 113.
wanted to appeal the decision. Id.
“It is well settled that ... judicial review of Social Security
Plaintiff did not file a “request for reconsideration or any other benefit determinations is limited to ‘final’ decisions of
administrative appeal of the determinations.” (Herbst Decl. ¶ the Commissioner made after a hearing, that available
3(g).) Plaintiff asserts that when he requested form SSA–561– administrative procedures must be exhausted and that a final
U2 on two separate occasions from his local Social Security decision is a prerequisite for subject matter jurisdiction in
office, office personnel were rude to him and refused to give the District Court.” Matthews v. Chater, 891 F.Supp. 186,
him the form. (Dkt. No. 12–3.) Plaintiff did, however, seek 188 (S.D.N.Y.1995) (citing, inter alia, Califano v. Sander,
assistance from his Congressman. (Dkt. No. 1.) Eventually, he 430 U.S. 99 (1977)). “Exhaustion is generally required as
filed a complaint in this Court on November 29, 2007. (Dkt. a matter of preventing premature interference with agency
No. 1.) processes, so that the agency may function efficiently and so
that it may have an opportunity to correct its own errors, to
Although the complaint is far from clear, Plaintiff appears afford the parties and the courts the benefit of its experience
to dispute the SSA's finding that he was ineligible for SSI and expertise, and to compile a record which is adequate
payments due to his income. (“Alleges am below income, for judicial review.” Weinberger v. Salfi, 422 U.S. 749, 765
and it clearly states both incomes, SSDI and SSI, when just (1975).
receive one SSDI, is reasons to belief there a conflict of
interests hear, is why am bring this matter to Court, being *3 When a plaintiff disputes a determination of the SSA
railroad by means stated all alone, where unemployable, regarding his economic eligibility for payments or the
forever lost of surgery of objects its taking a toll something underpayment or overpayment of benefits, he must pursue
has of right to it hear otherwise, where are civil rights.”) three levels of administrative procedures in order to fully
Plaintiff also alleges that he never received a check for his exhaust his administrative remedies. First, the plaintiff must
withheld benefits. (Dkt. No. 1.) request reconsideration. 20 C.F.R. §§ 404.913, 416.1413
(2007). Second, if the reconsideration decision is unfavorable,
Defendant filed the motion to dismiss on April 9, 2008. (Dkt. the plaintiff must request a hearing before an Administrative
No. 11.) Plaintiff filed opposition papers on April 29, 2008. Law Judge (“ALJ”). 20 C.F.R. §§ 404.930, 416.1430 (2007).
(Dkt. No. 12) (see also footnote 1, supra.) Third, if the ALJ's determination is unfavorable, the plaintiff
must request that the Appeals Council review the ALJ's
decision. 20 C.F.R. §§ 404.967, 416 .1467 (2007). “A
II. DISCUSSION determination is only final after the Appeals Council has
Defendant argues that the Complaint should be dismissed for denied review or decided the case after review.” Matthews,
lack of subject matter jurisdiction because Plaintiff did not 891 F.Supp. at 188 (citing 20 C.F.R. § 404.981).
exhaust his administrative remedies. (Dkt. No. 11.) Defendant
is correct. Here, Plaintiff did not exhaust his administrative remedies.
He did not seek reconsideration, an ALJ hearing, or review
A case may properly be dismissed for lack of subject matter by the Appeals Council.
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)
(1) when the court lacks statutory or constitutional authority The District Court may waive the exhaustion requirement
to adjudicate it. Makarova v. United States, 201 F.3d 110, only if (1) the plaintiff's legal claims are collateral to the
113 (2d Cir.2000). When deciding whether to grant a 12(b) demand for benefits; (2) exhaustion would be futile; or (3)
(1) motion to dismiss, the court “must accept all factual exhaustion would cause irreparable harm. Matthews, 891
allegations in the complaint as true and draw inferences from F.Supp. at 188 (citing Smith v. Schweiker, 709 F.2d 777,
waive exhaustion should not be made solely by mechanical RECOMMENDED, that the Court dismiss the complaint
application of [these] factors, but should also be guided by (Dkt. No. 1) for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1); and it is further
the policies underlying the exhaustion requirement.” Bowen
v. City of New York, 476 U.S. 467, 484 (1986)
ORDERED, that the papers filed by Plaintiff on May 14 and
May 20, 2008, be rejected for failure to serve Defendant.
Waiver is not appropriate in this case. First, Plaintiff's claim
is not “collateral” to a demand for benefits. Indeed, Plaintiff's
Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten days
complaint is a demand for benefits. Second, exhaustion would
within which to file written objections to the foregoing report.
not be futile. Although Plaintiff did not file a request for
Such objections shall be filed with the Clerk of the Court.
reconsideration within 60 days, he could still pursue his
administrative remedies by requesting an extension of time FAILURE TO OBJECT TO THIS REPORT WITHIN
from the SSA in which do so. 20 C.F.R. §§ 404.909(b), TEN DAYS WILL PRECLUDE APPELLATE REVIEW.
Roldan v. Racette, 984 F.2d 85 (2d Cir.1993) (citing Small
416.1409(b) (2007). This would give the SSA an opportunity
v. Secretary of Health and Human Services, 892 F.2d 15 (2d
to correct any errors, afford the parties and the courts the
Cir.1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a),
benefit of the SSA's experience and expertise, and result in
6(e).
a record that is adequate for judicial review. Third, nothing
in the record indicates that requiring exhaustion would
irreparably harm Plaintiff. Accordingly, this Court does not
All Citations
have subject matter jurisdiction.
Not Reported in F.Supp.2d, 2008 WL 4239593
WHEREFORE, it is hereby
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
2020 WL 2079411 constitute the defendant's answer within 90 days of said
Only the Westlaw citation is currently available. service, or a motion to dismiss within 90 days of said
United States District Court, N.D. New York. service.” N.D.N.Y. General Order No. 18 (June 12, 2018)
(Dkt. No. 7 at 3) (emphasis added). In this case, defendant has
JASON P.,1 Plaintiff, filed a timely motion to dismiss which is now pending before
me. (Dkt. No. 15). Plaintiff has responded in opposition to the
v.
motion, and defendant has filed a reply. (Dkt. Nos. 15, 17, 18).
COMMISSIONER OF SOCIAL SECURITY, Defendant.
For the following reasons, this court agrees with defendant
1 In accordance with recent guidance from the and will order dismissal of this action without prejudice for
failure to exhaust administrative remedies.
Committee on Court Administration and Case
Management of the Judicial Conference of the
United States, which was adopted by the Northern I. Motion to Dismiss
District of New York in June 2018 in order to better Defendant's motion to dismiss is based upon lack of subject
protect personal and medical information of non- matter jurisdiction under Fed. R. Civ. P. 12(b)(1). “ ‘Dismissal
governmental parties, this Memorandum-Decision for lack of subject matter jurisdiction is proper when the
and Order will identify the plaintiff and any other district court lacks the statutory or constitutional power to
individual, using only his or her first name and last adjudicate a case.’ ” Oliver v. New York State Police, No. 1:19-
initial. CV-233, 2020 WL 1849484, at *5 (N.D.N.Y. Apr. 13, 2020)
(quoting Sokolowski v. Metro. Transp. Auth., 723 F.3d 187,
1:19-CV-1463 (ATB) 190 (2d Cir. 2013)). The court considers all uncontroverted
| facts in the complaint as true, and draws all reasonable
Signed 04/29/2020 inferences in favor of the party asserting jurisdiction. Id.
| (citing Tandon v. Captain's Cove Marina of Bridgeport, Inc.,
Filed 04/30/2020 752 F.3d 239, 243 (2d Cir. 2014)).
Attorneys and Law Firms In resolving a motion to dismiss for lack of subject-matter
jurisdiction, the court may consider competent evidence
JASON P., Plaintiff pro se.
outside the pleadings, such as affidavits and exhibits. Id.
JESSICA TUCKER, Special Asst. U.S. Attorney for (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir.
Defendant. 2000)). “ ‘Where jurisdictional facts are placed in dispute,
the court has the power and obligation to decide issues of
fact by reference to evidence outside the pleadings.’ ” Id.
(quoting Tandon, 752 F.3d at 243) (quoting APWU v. Potter,
MEMORANDUM-DECISION and ORDER
343 F.3d 619, 627 (2d Cir. 2003)). A plaintiff who asserts
ANDREW T. BAXTER, United States Magistrate Judge subject matter jurisdiction has the burden to show that it exists
by a preponderance of the evidence. Id.
*1 This matter was referred to me, for all proceedings and
entry of a final judgment, pursuant to the Social Security Pilot
Program, N.D.N.Y. General Order No. 18, and in accordance II. Background
with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. In May of 2010, plaintiff filed an application for CIB,
73, N.D.N.Y. Local Rule 73.1 and the consent of the parties. based on the earnings of his mother Mary Beth P.L.
(Dkt. No. 4). Plaintiff seeks review of a partially favorable (Def.’s Ex. 1)2 (Dkt. No. 15-3). Plaintiff's application was
decision on his claim for Child's Insurance Benefits (“CIB”) denied initially on September 12, 2010. (Def.’s Ex. 2)
under Title II of the Social Security Act. (Dkt. No. 15-4). Plaintiff's application was denied again
after he requested reconsideration. (Def.’s Ex. 3, 4) (Dkt.
General Order No. 18 provides that “after service of the Nos. 15-5, 15-6). Plaintiff requested and attended a hearing
Complaint and the Social Security Identification Form before an Administrative Law Judge (“ALJ”), who issued
audio recording of the ALJ's hearing could not be found, and United States, 201 F.3d 110, 113 (2d Cir. 2000)).
the Appeals Council ultimately vacated the ALJ's decision,
remanding the case for additional proceedings before the ALJ. The Social Security Act provides that judicial review of
(Def.’s Ex. 7 at 3) (Dkt. No. 15-9). Social Security benefit determinations, under both Title II3
and Title XVI4 of the Act, is limited to “final decisions” of
2 The defendant's exhibits have been filed under the Commissioner, made after a hearing. 42 U.S.C. § 405(g).
the Declaration of Jenay Podraza, Acting Chief of Available remedies must be exhausted. Maynard v. Soc. Sec.
Court Case Preparation and Review Branch 4 of Admin., No. 11-CV-6046, 2012 WL 2319249, at *3 (S.D.N.Y.
the Office of Appellate Operations, Social Security June 19, 2012) (citing Weinberger v. Salfi, 422 U.S. 749, 765
Administration. (“Podraza Decl.”) (Dkt. No. 15-2). (1975)). A determination becomes “final” after the Appeals
*2 After holding a second hearing, the ALJ issued another Council has denied review or has decided the case after
unfavorable decision, which plaintiff appealed. (Def.’s Exs. review. Mathews v. Chater, 891 F. Supp. 186, 188 (S.D.N.Y.
8, 9 at 2) (Dkt. Nos. 15-10, 15-11). On June 29, 2018, 1995) (citing 20 C.F.R. § 404.981). Section 405(h) provides
the Appeals Council vacated the second hearing decision that no findings of fact or decision of the Commissioner shall
because the audio recording was again lost. (Id.) On June 17, be reviewed “by any person, tribunal, or governmental agency
2019, a different ALJ issued a partially favorable decision, except as herein provided.” 42 U.S.C. § 405(h).
awarding plaintiff CIB under the insured status of his mother.
(Def.’s Ex. 10 at 6, 11) (Dkt. No. 15-12). The decision 3 Disability Insurance Benefits (“DIB”).
stated that plaintiff would be entitled to begin receiving
benefits 12 months prior to his 2010 application, but not 4 Supplemental Security Income (“SSI”).
retroactively to 1993. (Def.’s Ex. 10 at 11). On August 14,
2019, the ALJ amended his June 17, 2019 decision to state B. Application
that plaintiff was only entitled to benefits beginning six month Plaintiff does not dispute that his claim is still pending before
prior to his 2010 application because his mother converted the Appeals Council. Rather he argues that because he was a
to retirement benefits in 2008, which was prior to plaintiff's “class member” in Sullivan v. Zebley, 493 U.S. 521 (1990), the
2010 CIB application. In such cases, the statute provided that court has jurisdiction over his claim. (Complaint (“Compl.”
individuals could only collect retroactive benefits beginning at 2, ¶ 8)). Plaintiff cites to a passage in Zebley, which
six months prior to the application date. (Def.’s Ex. 11 at 5, states that “[t]his court will retain jurisdiction of this case to
10) (Dkt. No. 15-13). oversee implementation of the terms of this Stipulation and
Order.” (Id.) Plaintiff also seems to be raising Constitutional
On August 30, 2019, plaintiff requested review of the ALJ's due process claims. (Compl. at 2, ¶ 7).
amended decision. (Def.’s Ex. 12) (Dkt. No. 15-14). Plaintiff
filed this federal action on November 25, 2019. (Dkt. No. 1). However, Zebley does not apply in plaintiff's case to confer
However, his administrative case is currently pending before jurisdiction over his current action. Zebley was a class action
the Appeals Council. (Podraza Decl. ¶ 3(d)). brought by plaintiffs claiming Child's benefits and was a
facial challenge to the method by which the Social Security
Administration determined a child's eligibility for benefits
III. Exhaustion of Administrative Remedies under the SSI program (Title XVI). 493 U.S. at 523. The court
in Zebley invalidated the method used by Social Security
A. Legal Standards
and maintained jurisdiction over the action “to oversee the
The United States, as a sovereign, is immune from suit except
implementation” the Stipulation and Order that had been
as it consents to be sued. Fed. Deposit Ins. Corp. v. Meyer,
issued regarding a new procedure for determining eligibility.
510 U.S. 471, 475 (1994). Sovereign immunity applies to
The Regulations have long since been amended to conform
agencies of the United States. Id. Sovereign immunity is
with the proper method for such review.
jurisdictional in nature, and a waiver of sovereign immunity
must be unequivocally expressed. McCarthy v. Azar, No. 19-
*3 Plaintiff in this case is an adult and is not challenging his
CV-6683, 2020 WL 1697995, at *3 (E.D.N.Y. Apr. 7, 2020)
eligibility for SSI. Rather, he is challenging a 2010 decision,
(citations omitted). The party asserting jurisdiction bears the
be entitled to benefits. The only question in this case is plaintiff's claim is collateral to the demand for benefits; (2)
whether plaintiff is entitled to benefits dating back to 1993 or whether exhaustion would be futile, and (3) whether requiring
whether he is entitled to benefits beginning six months prior exhaustion would cause irreparable harm to plaintiff. Id.
to his 2010 application date. This determination is completely (citing Pavano, supra).
unrelated to Zebley, and Zebley does not provide jurisdiction
for plaintiff's action. None of the above factors weigh in plaintiff's favor. His claim
is not “collateral” to his claim for benefits. He claims that he
An exception to the exhaustion requirement may exist is entitled to benefits beginning earlier than defendant claims
when the plaintiff presents certain constitutional claims. See the statute allows. Thus, his claim is central to his request
Califano v. Sanders, 430 U.S. 99, 109 (1977). In Stieberger for more benefits, resulting from the favorable decision on
v. Apfel, 134 F.3d 37, 41 (2d Cir. 1997), the court held his 2010 application. There is no indication that exhaustion
that, notwithstanding the court's availability to review some would be futile. He has obtained a favorable decision from the
constitutional claims in the first instance, when the claim Appeals Council in the past, and this court cannot determine
is closely related to plaintiff's claim for benefits, “SSA what the outcome in the Appeals Council would be. Finally,
should be enlisted to make an initial determination, subject to requiring plaintiff to wait until the Appeals Council issues a
traditional judicial review to determine if an adverse decision decision will not cause irreparable harm. Plaintiff has already
is supported by substantial evidence.” Id. In this case, plaintiff obtained a favorable decision in the agency. The issue is
mentions “due process,” but there is no basis for such a the amount of back benefits, not his eligibility. Thus, there
claim. Plaintiff does not, and cannot claim, that he does not is no irreparable harm in requiring plaintiff to exhaust his
understand the Social Security administrative procedures.5 administrative remedies, and waiver is not appropriate.
Plaintiff has progressed through his administrative remedies
and has obtained a partially favorable decision. He claims that *4 Plaintiff somehow argues that the ALJ's decision will
the ALJ's decision is incorrect. He has simply failed to wait force plaintiff to “repay” 39 years of benefits. It is unclear
for the last administrative step to be complete, after he filed to what plaintiff is referring. The decision at issue granted
his appeal. Plaintiff's passing reference to due process does plaintiff's eligibility for CIB, but did not determine that
not suffice to establish jurisdiction over his claim. retroactive benefits would begin as far back as plaintiff
requested or believes to be appropriate. (Def.’s Ex. 11 at
5 7-10). Plaintiff is not being required to pay back any money
Cases such as Steiberger often have arisen when the
due to the ALJ's decision.
plaintiff claims that a mental impairment prevented
him from understanding the administrative
The cases cited by plaintiff in his response to defendant's
procedures and the plaintiff has missed his or
motion do not support his position. Plaintiff cites, inter alia,
her opportunity to utilize those procedures. See
Tatum v. Mathews, 541 F.2d 161, 165-66 (6th Cir. 1976) (Dkt.
e.g. Bortungno v. Comm'r of Soc. Sec., No. 17-
No. 17 at 2). However, Tatum was a class action, limited
CV-2344, 2018 WL 3650131, at *4 (S.D.N.Y. Aug.
to Social Security applicants in Kentucky and involved a
1, 2018) (citations omitted). Even then, a plaintiff
constitutional question of whether individuals would require
would have to make a “particularized allegation of
notice and an opportunity to be heard if their benefits were
mental impairment plausibly of sufficient severity
terminated when Social Security instituted the SSI program.
to impair comprehension.” Id. (citing Byam v.
In any event, the pages cited by plaintiff state that a claim for
Barnhart, 336 F.3d 172, 182 (2d Cir. 2003))
retroactive benefits was barred by sovereign immunity. Id.
(quoting Stieberger, 134 F.3d at 40–41). Plaintiff
does not make such a claim.
Because the Commissioner has yet to issue a final decision
In rare circumstances exhaustion may be waived, but in this case, conferring jurisdiction under 42 U.S.C. § 405(g),
exhaustion is the rule, “waiver is the exception.” Pavano v. and there is no basis for waiving the exhaustion requirement,
Shalala, 95 F.3d 147, 150 (2d Cir. 1996) (quoting Abbey v. this court must dismiss plaintiff's case at this time for lack of
Sullivan, 978 F.2d 37, 44 (2d Cir. 1992)). See Johnson v. Saul, jurisdiction. When the Appeals Council issues a final decision
No. 1:19-CV-3749, 2020 WL 1140778, at *4 (S.D.N.Y. Mar. in plaintiff's case, if appropriate, he may return to this court
9, 2020) (quoting Abbey, 978 F.2d at 44). The court considers to challenge the Commissioner's finding.
WHEREFORE, based on the findings above, it is failure to exhaust his administrative remedies.
ORDERED, that defendant's motion to dismiss for lack
All Citations
of jurisdiction (Dkt. No. 15) is GRANTED, and plaintiff's
Not Reported in Fed. Supp., 2020 WL 2079411
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