Cummiskey v. Commissioner, Social Security Administration

Filing 16

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 4/23/2012. (c/m by chambers 4/24/12 rs) (rss, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JAMES CUMMISKEY
Plaintiff,
v.
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION
Defendant.

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Civil No.: PJM 11-956

MEMORANDUM OPINION
Pro se Plaintiff James Cummiskey filed this suit against the Commissioner of the Social
Security Administration (“SSA”) after the SSA Appeals Council upheld application of a
“windfall elimination provision” (“WEP”) to reduce his retirement insurance benefits.1 In
August 2011, upon consent of both parties, the Court remanded the case to the SSA for further
proceedings and administratively closed the action. Shortly thereafter, the Appeals Council
reversed its position and concluded that Cummiskey’s retirement insurance benefits were not
subject to the WEP. The SSA wired him a refund in the amount of $6,418.00. Cummiskey has
now filed a request that the case be reopened in this Court, arguing that the refund did not cover
the full amount he was entitled to and that the SSA owes him thousands of dollars more in
interest, fees, and damages [Paper No. 12]. The Commissioner has filed an opposition to
Cummiskey’s request. For the reasons that follow the Court will REOPEN the case, ORDER
the Commissioner to file a response to Cummiskey’s reimbursement demand, but otherwise
DENY the other forms of relief Cummiskey requests.
I.

1

WEP is a modified formula for calculating the retirement benefits of an individual who receives a pension from
work where Social Security taxes were not deducted from his or her paychecks. The formula results in lower Social
Security benefits. See 42 U.S.C. § 415(a)(7).

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Born in 1943, Cummiskey worked for a number of years at the United States Department
of State and became eligible for a pension in 1993. In October 2008, he applied for retirement
insurance benefits, and the SSA determined that he was entitled to such benefits effective
January 2009. But because he was also receiving a pension from the Department of State for
work that was excluded from the definition of “employment” under the Social Security Act, 42
U.S.C. § 410, the WEP applied. Id. § 415(a)(7). Later in 2009, Cummiskey obtained
employment at the U.S. Department of Homeland Security, which suspended his pension checks.
The SSA subsequently notified Cummiskey that, although he was no longer receiving payments
under his pension, the WEP still applied to his Social Security benefits because he was eligible
for the pension.
Cummiskey asked the SSA to reconsider its determination. After the SSA upheld its
decision, Cummiskey requested a hearing before an Administrative Law Judge who, on October
13, 2010, issued a recommended decision in his favor. On March 9, 2011, The SSA Appeals
Council rejected the Judge’s recommendation and issued a decision that upheld application of
the WEP to Cummiskey’s Social Security benefits because he was still eligible for the pension.
Having exhausted his administrative remedies, see 20 C.F.R. § 900(a)(1)-(5), Cummiskey filed
the instant action in April 2011, raising two issues: (1) whether the WEP was inapplicable, and
(2) whether the monthly WEP deduction was excessive.
Instead of filing an answer to the Complaint, the Commissioner filed a Motion to
Remand [Paper No. 7]. “Upon further review of this case,” the Commissioner stated in the
Motion, a remand “is warranted for further administrative proceedings and development.” The
Commissioner asked the Court “for the entry of an Order remanding this case pursuant to the
Social Security Act, SENTENCE FOUR of 42 U.S.C. § 405(g).” Cummiskey agreed to the

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extent that a remand was proper under the circumstances. Counsel for the Commissioner
apparently conceded that the SSA Appeals Council had erred in finding the WEP applicable.
Cummiskey thus requested that the Court remove the case “from the docket” until he might
notify the Court about withdrawing the Complaint or reopening the case. On August 25, 2011,
the Court issued a Memorandum Order [Paper No. 11] granting the Commissioner’s Motion to
Remand and Cummiskey’s request. The Court remanded the case to the SSA “for further
administrative proceedings” and directed the Clerk to administratively close the case “until such
time as the Court, upon review of a properly filed motion by either party, deems that it should be
reopened.”
On remand, the Appeals Council found that a person is subject to the WEP only if he or
she “concurrently” receives both a pension based on “non-covered employment” and Social
Security benefits. The Appeals Council therefore concluded that Cummiskey’s Social Security
benefits were not subject to the WEP. The SSA notified Cummiskey of this fully favorable
“final decision,” and in early November 2011, $6,418 was electronically deposited into
Cummiskey’s account to reimburse him for the erroneously deducted funds. On November 7,
2011, SSA sent Cummiskey a notice explaining what it determined were his monthly benefits
and the amount he was reimbursed pursuant to the Appeal Council’s decision.
Cummiskey, however, was not satisfied with the outcome of the administrative
proceedings. On November 22, 2011, he filed a request “that the referenced case number be
added to the docket and be scheduled for a hearing.” In his request, he contends that the $6,418
“is less tha[n] the amount withheld.” In addition to obtaining what he characterizes as full
reimbursement, Cummiskey claims he should be “fully compensated” for the time and effort he
has expended on the case. “I believe,” he says, “SSA should have to pay late payment penalty

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fees and interest on the unpaid amount.” He claims as well “treble damages” and “additional
compensation.” The SSA, Cummiskey asserts, “knew or should have known” that the WEP “did
not apply.”
The Commissioner opposes Cummiskey’s request in all respects.
II.
The Commissioner argues that the Court should dismiss Cummiskey’s request pursuant
to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. Because the Court remanded
the case to the SSA under the fourth sentence of 42 U.S.C. § 405(g), the Commissioner contends
the order was a final judgment that divested the Court of jurisdiction. The Court concludes that
it still retains jurisdiction over the action.
A.
“Section 405(g), which governs judicial review of final SSA decisions, authorizes only
two types of remands: those pursuant to sentence four and those pursuant to sentence six.”
Krishnan v. Barnhart, 328 F.3d 685, 691 (D.C. Cir. 2003) (citing Melkonyan v. Sullivan, 501
U.S. 89, 99-100 (1991)). Sentence four grants a district court the “power to enter, upon the
pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision
of the Commissioner of Social Security, with or without remanding the cause for a rehearing.”
42 U.S.C. § 405(g). Put another way, sentence four permits a court to remand a case in
conjunction with a judgment.
By contrast, a sentence six remand “does not rule in any way as to the correctness of the
administrative determination.” Melkonyan, 501 U.S. at 98. Sentence six allows a court to
remand in two circumstances: (1) where the Commissioner requested a remand before filing an
answer, or (2) where there is new, material evidence that was for good cause not presented

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during the prior proceeding.2 Shalala v. Schaefer, 509 U.S. 292, 297 n.2 (1993); Krishnan, 328
F.3d at 691; Raitport v. Callahan, 183 F.3d 101, 104 (2d Cir. 1999); Kadelski v. Sullivan, 30
F.3d 399, 401 (3d Cir. 1994).
There are important differences between an order entering a sentence four remand and a
sentence six remand. The former is immediately appealable and results in the district court
relinquishing jurisdiction over the case. Raitport, 183 F.3d at 104 (citing Sullivan v. Finkelstein,
496 U.S. 617, 624-35 (1990)). A sentence four remand “terminates the litigation . . . .” Shalala,
509 U.S. at 301. If no appeal is taken and the claimant is dissatisfied with the final decision on
remand, he or she can only seek federal judicial review by filing a new civil action. A sentence
six remand, however, does not terminate the case and is not a final judgment; it is considered
interlocutory and hence non-appealable. Krishnan, 328 F.3d at 691. The court retains
jurisdiction over the action pending further development by the SSA. Id. (citing Shalala, 509
U.S. at 297, 299). Depending on whether the SSA issues a favorable decision, the claimant may
request that the court review the decision. McPeak v. Barnhart, 388 F. Supp. 2d 742, 745 n.2
(S.D. W.Va. 2005).
B.

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Sentence six provides in full:
The court may, on motion of the Commissioner of Security made for good cause shown before the
Commissioner files the Commissioner’s answer, remand the case to the Commissioner of Social Security
for further action by the Commissioner of Social Security, and it may at any time order additional evidence
to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence
which is material and that there is good cause for the failure to incorporate such evidence into the record in
a prior proceeding; and the Commissioner of Social Security shall, after the case is remanded, and after
hearing such additional evidence if so ordered, modify or affirm the Commissioner’s findings of fact or the
Commissioner’s decision, or both, and shall file with the court any such additional and modified findings of
fact and decision, and in any case in which the Commissioner has not made a decision fully favorable to the
individual, a transcript of the additional record and testimony upon which the Commissioner’s action in
modifying or affirming was based.

42 U.S.C. § 405(g).

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The Commissioner argues that the Court issued a sentence four remand order and points
to the fact that its Motion to Remand specifically asked the Court to enter an order pursuant to
“SENTENCE FOUR of 42 U.S.C. § 405(g).” Yet labels, as the Commissioner concedes, are not
controlling. See Sullivan v. Finkelstein, 496 U.S. 617, 628 n.7 (1990). In its Motion to Remand,
the Commissioner explained that “a remand” was “warranted for further administrative
proceedings and development.” That language is squarely at odds with a sentence four remand.
The Commissioner did not ask the Court to make a final judgment about whether the Appeal
Council’s decision was or was not correct. And the Court never issued a substantive ruling on
that question as part of its Memorandum Order.
The Commissioner also argues that the “type” of remand at issue does not qualify as a
sentence six remand. The Court finds just the opposite—the remand bears all the hallmarks of a
sentence six remand. The Memorandum Order did not terminate the litigation and underscored
that the Court was “not rul[ing] in any way as to the correctness of the administrative
determination.” Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991). The Memorandum Order also
reiterated the Commissioner’s view that a remand was needed “for further administrative
proceedings and development” and granted Cummiskey’s request that the Court to remove the
case from its docket “until such time” as he notified the Court about withdrawing his complaint
or adding the case back to the docket. Cummiskey understood the remand to involve the SSA
reviewing the Appeal Council’s decision on application of the WEP to his Social Security
benefits. “In light of the fact that both parties have advised the Court that further proceedings
before the SSA are necessary,” the Court found that “remand” was “appropriate.” The Court
made no substantive rulings whatsoever, ordering that the action be remanded “to the SSA for
further administrative proceedings” and directing the Clerk to administratively close the case

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“until such time as the Court, upon review of a properly filed motion by either party, deems that
it should be reopened.”
The Commissioner, not Cummiskey, filed the Motion to Remand, and the Commissioner
did so in lieu of filing an answer or other response to the Complaint. There was good cause for
the Commissioner’s request, given the SSA’s desire to reconsider its decision on whether
Cummiskey was subject to the WEP. The Commissioner believed additional proceedings were
warranted.3
In sum, the remand order falls under sentence six, not sentence four, and the Court still
retains jurisdiction over the case. The Court construes Cummiskey’s November 22, 2011 request
“that the referenced case numbered be added to the docket and be scheduled for a hearing” as a
motion to reopen the case after it was administratively closed.4 The Court will grant that request
insofar as it ORDERS that the case be REOPENED.5

III.
Having reopened the case, the Court turns to the substance of Cummiskey’s November
22, 2011 request. The Court finds that, whereas the dispute over the amount of WEP
reimbursement due Cummiskey is properly before it, Cummiskey’s various demands for
expenses, damages, and other relief have no basis in law and are simply not recoverable.

3

The “new” evidence portion of sentence six is inapplicable to this case.
Given Cummiskey’s pro se status, his request must be construed liberally such that the Court declines to strike it
even if he failed to comply with Local Rule 105, which provides that “[a]ny motion . . . shall be . . . accompanied by
a memorandum setting forth the reasoning and authorities in support of it.” See Haines v. Kerner, 404 U.S. 519,
520-21 (1972).
5
The Commissioner’s argument that Cummiskey’s request should be rejected because he has not exhausted his
administrative remedies is without merit. The applicable regulations provide that when a claimant has sought
reconsideration of the SSA’s initial determination, asked for a hearing before an Administrative Law Judge, and
then requested that the Appeals Council review the decision, he or she has “completed the steps of the administrative
review process . . . .” 20 C.F.R. § 900 (a)(5). If the claimant is still “dissatisfied” with the SSA’s “final decision,” he
or she “may request judicial review by filing an action in a Federal district court. Id. Here, after the case was
remanded back to the SSA, the Appeals Council rendered a “final decision.” Cummiskey’s only avenue of relief was
to return to federal district court to dispute that decision.
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A.
Cummiskey argues that the SSA did not pay the full amount it improperly deducted under
the WEP. He contends that the SSA owes him more than the $6,418.00 it wired into his bank
account and disputes the explanation provided in the November 7, 2011 notice sent pursuant to
the Appeals Council’s decision. This issue is squarely before the Court.6 The Court will
GRANT the Commissioner 30 DAYS to file a response regarding the sum owed to Cummiskey.
Cummiskey SHALL reply within 30 DAYS thereafter.
B.
Apart from the disputed amount of WEP reimbursement, Cummiskey asserts that he
should be “fully compensated” for the time and effort he has expended on the case. He also
claims that the SSA “should have to pay late payment penalty fees and interest on the unpaid
amount,” as well as “treble damages” and “additional compensation.” In his view, the SSA
“knew or should have known” that the WEP “did not apply” to him.
Cummiskey’s argument that he is entitled to compensation for the time he spent pursuing
his case amounts to a request for fees for a pro se litigant, see Shlikas v. Sallie Mae, Inc., No.
WDQ-06-2106, 2011 WL 5825660, at *1 (D. Md. Nov. 16, 2011) (noting that pro se plaintiff’s
requested “labor” fees under the Fair Debt Collection Practices Act were attorneys’ fees “by
another name”), and has no basis in law. The Social Security Act only permits recovery of fees
to attorneys who represent claimants: “Whenever a court renders a judgment favorable to a
claimant under this subchapter who was represented before the court by an attorney, the court
may determine and allow as part of its judgment a reasonable fee for such representation . . . .”
42 U.S.C. § 406(b)(1)(A). Because there is no evidence that Cummiskey was represented by
counsel during the various stages of this case, he is not entitled to attorneys’ fees under the Act.

6

The Court reiterates that Cummiskey has exhausted all available administrative remedies. See 20 C.F.R. § 404.900.

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See Liberman v. Barnhart, 232 F. Supp. 2d 18, 20 (E.D.N.Y. 2002) (reaching same conclusion).
Cummiskey fares no better under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412.
It is well-settled that a pro se litigant who has not engaged an attorney is not entitled to
attorneys’ fees pursuant to the EAJA. See, e.g., Krecioch v. United States, 316 F.3d 684, 688
(7th Cir. 2003); Sec. & Exch. Comm’n v. Price Waterhouse, 41 F.3d 805, 808 (2d Cir. 1994);
Hexamer v. Foreness, 997 F.2d 93, 94 (5th Cir. 1993); Celeste v. Sullivan, 988 F.2d 1069, 107071 (11th Cir. 1992).
Cummiskey’s demand that the SSA pay late fees and interest on the amount he is owed
also finds no support in law. The Social Security Act does not provide for such relief and
Cummiskey has cited no legal authority in support of his claims. As the Supreme Court has
made clear, “[i]n the absence of congressional consent to the award of interest separate from a
general waiver of immunity to suit, the United States is immune from an interest award.”
Library of Congress v. Shaw, 478 U.S. 310, 314 (1986). This “no interest” rule applies with
equal force to claims based on delayed receipt of funds from the federal government. See id. at
322. In this case, there is no indication in the Social Security Act that Congress intended to
waive the United States’s sovereign immunity for interest on benefits awards. Nor is there any
evidence in the Act that Congress intended to authorize litigants to collect late fees from the
United States.
Similarly, Cummiskey has not shown, nor can he show, that Congress waived sovereign
immunity with respect to his claims for “treble damages” and “additional compensation.”
Nothing in the Social Security Act’s “elaborate remedial scheme” supports such a waiver.
Schweiker v. Chilicky, 487 U.S. 412, 425 (1988) (noting also that the Act does not provide a
remedy for “hardships suffered because of delays in . . . receipt of Social Security benefits”).

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Congress created administrative safeguards to protect the rights of Social Security claimants and
made attorneys’ fees available to prevailing parties. See 42 U.S.C. § 406(b); 28 U.S.C. § 2412.
Accordingly, the Court denies the various forms of relief Cummiskey seeks other than
reimbursement for improper deductions under the WEP.
To the extent Cummiskey seeks relief based on vague assertions that the SSA engaged in
malicious conduct and defrauded him—a seemingly farfetched proposition—he would have to
file a separate suit setting forth his allegations, and more importantly, be prepared to back up his
claim with plausible law and facts, failing which he may find himself exposed to sanctions. In
his Complaint in this case, Cummiskey raised only two issues: (1) whether the WEP was
inapplicable, and (2) whether the monthly WEP deduction was excessive. He cannot expand the
proceedings at this late stage to add a whole host of additional claims. Indeed, judicial review
pursuant to 42 U.S.C. § 405(g) is the exclusive remedy for complaints about the SSA’s decisions
involving Social Security benefits. Jarrett v. United States, 874 F.2d 201, 203-04 (4th Cir.
1989).
C.
All this said, if Cummiskey prevails on the reimbursement claim, he may be entitled to
costs, fees, and expenses under the EAJA as the “prevailing party.” See 28 U.S.C. § 2412(a)(1),
(d)(1)(A)-(B). See Robinson v. Sullivan, 783 F. Supp. 245, 248 (E.D.N.C. 1991) (finding
plaintiff’s EAJA application premature where the Court had not issued a decision following what
was in effect a sentence six remand). That is, at the appropriate time if Cummiskey ultimately
prevails, he may file a bill of costs and an application for fees and other expenses. See Local
Rule 109; 28 U.S.C. § 2412(d)(1)(B). On the other hand, Cummiskey is cautioned that allowable
fees and costs have a very narrow meaning within this litigation and he should carefully consult

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the federal and local rules (as well as the Office of the Clerk) as to what will and will not be
allowed.
IV.
Summing up, the Court ORDERS that this case be REOPENED and that the
Commissioner file a response regarding the WEP sum owed to Cummiskey within 30 DAYS.
Cummiskey SHALL reply within 30 DAYS thereafter. As to all the various forms of relief
Cummiskey requests other than reimbursement for erroneously withheld benefits, his requests
are DENIED.
A separate Order will ISSUE.
/s/
x
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
April 23, 2012

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