Brown v. Social Security Administration

Filing 16

MEMORANDUM AND ORDER, For the foregoing reasons, deft's 9 Motion to Dismiss is granted and the complaint is dismissed for failure to exhaust. The Clerk of Court is directed to enter Judgment and to close this case. (Ordered by Judge Eric N. Vitaliano on 6/29/12) c/m Fwd. for Judgment. (Galeano, Sonia)

FILED

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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IN CLERK'S OFFICE
US DISTRICT COURT E. D. ·

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JUL \ 0 2012

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ELAINE BROWN,
Plaintiff,

SROOKLYN OfFICE

MEMORANDUM AND ORDER

-against-

10-CV-00784 (ENV)

COMMISSIONER OF SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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VITALIANO, D.J.
Prose plaintiff Elaine Brown seeks review of Social Security Administration ("SSA")
determinations related to a disability award and payments under it made to her. For the reasons
provided below, the action is dismissed because Brown has failed to emaust her administrative
remedies.
Background
Plaintiff filed an application for a period of disability and disability insurance benefits on
December 4, 1996, claiming a disability onset date of October I, 1996. Administrative
proceedings and a court-ordered remand followed. As a result of the remand, on June 4, 2002,
an administrative law judge (the "ALJ") issued a decision partially favorable to Brown, but not
as to the disability onset date, which was fil{ed as September 1, 1998. The ALJ's decision
informed Brown she had 60 days to file an appeal with SSA's Appeals Council. On August 3,
2002, SSA issued a Notice of Award informing plaintiff that her entitlement to disability benefits
would commence as of February 1999, which was calculated by adding a five-month waiting

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period to the disability onset date established in the ALJ's decision. The Notice of Award also
informed plaintiff she had 60 days to appeal that determination.
Brown failed to timely appeal from either order. 1 Her next communication of record with
SSA occurred on June 12, 2009, when she sent a letter appearing to challenge both the disability
onset date and the amount of the benefit award. On June 15, 2010, SSA construed plaintiffs
2009 letter as a request for reconsideration of the Notice of Award and dismissed the request as
time barred.
Plaintiff commenced this action on February 19,2010. She targets either (I) the ALJ's
decision or (2) the Notice of Award. The Commissioner has moved to dismiss based on a failure
to exhaust administrative remedies.
Discussion
A district court generally cannot hear a challenge to an SSA determination absent
exhaustion of administrative remedies through the filing of a prior, timely appeal to the Appeals
Council. Dietsch v. Schweiker, 700 F.2d 865, 867 (2d Cir. 1983); Walrath v. Commissioner of
Soc. Sec., 139 Soc. Sec. Rep. Serv. 412 (N.D.N.Y. 2009). Plaintiff had 60 days from June 4,
2002 to appeal the ALJ's decision. See 20 C.F.R. §§ 404.967, 404.968(a)(1); see also Escalera
v. Commissioner of Soc. Sec., 457 Fed. App'x 4, 6-7 (2d Cir. 2011). Plaintiff had 60 days from
August 3, 2002 to appeal the Notice of Award. See 20 C.F.R. § 404.907; see also Escalera, 457
Fed. App'x at 6-7. She did neither.
Perhaps Brown's June 12, 2009letter to SSA sent approximately seven years later might
be considered an attempt at an administrative appeal. But, whether that letter was a challenge to

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Alternatively, plaintiff could have filed a new court action within 60 days challenging the
ALJ's decision without first requesting review by the Appeals Council. See 42 U.S.C. § 405(g).
She did not do that either.

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the ALJ's decision, the Notice of Award, or both, any such appeal was properly denied as
untimely. Further, to the extent the letter challenged only the Notice of Award, as SSA
construed it in the Commissioner's denial, then no appeal of the ALJ's decision was even
attempted. Ultimately, of course, regardless of how the letter is cast, Brown failed to exhaust the
applicable administrative remedies because the letter was not a timely appeal of any of the orders
challenged here. See Escalera, 457 Fed. App'x at 6-7; Prince v. Soc. Sec. Admin., No. 11-CV4860 (CBA), 2011 WL 5884851, at *1-2 (E.D.N.Y. Nov. 22, 2011). Finally, given that no basis
for waiver of the exhaustion requirement can be founded on the record here, SSA's failure to
exhaust defense must be sustained. See Escalera, 457 Fed. App'x at 6 ("A plaintiffs failure to
exhaust administrative remedies can be excused if ( 1) the claim is collateral to a demand for
benefits, (2) exhaustion would be futile, or (3) requiring exhaustion would result in irreparable
harm." (citation omitted)); see also Skubel v. Fuoroli, 113 F.3d 330, 334-35 (2d Cir. 1997)
(holding exhaustion can be waived as futile when, for example, an agency indicates an
unwillingness to reconsider its decision despite the availability of additional agency
proceedings); Prince, 2011 WL 5884851, at *1-2.
Conclusion
For the foregoing reasons, defendant's motion is granted and the complaint is dismissed
for failure to exhaust.
The Clerk of Court is directed to enter Judgment

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SO ORDERED.
ERfC N. VITALIANO
United States District Judge

Brooklyn, New York
June 29, 2012

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