Abreu v. Commissioner of Social Security

Filing 21

ORDER granting 8 Motion to Dismiss: For the reasons stated in the attached memorandum and order, the Commissioner's motion to dismiss is granted. A copy of this order will be mailed to the plaintiff. Ordered by Judge John Gleeson on 8/4/2011. (Gleeson, John)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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THELMA ABREU,
:
:
Plaintiff,
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- against :
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MICHAEL J. ASTRUE,
:
COMMISSIONER OF
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SOCIAL SECURITY,
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Defendant.
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APPEARANCES:

ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER
11-CV-0521 (JG)

THELMA ABREU
67-74 75th Street
1st Floor
Middle Village, NY 11379
Pro Se
LORETTA E. LYNCH
United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201
By:
Candace Scott Appleton
David Augenbaum 1
Attorney for Defendant
JOHN GLEESON, United States District Judge:
Thelma Abreu seeks review, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), of:
(1) the Social Security Commissioner’s determination of the amount of interim assistance
payments to Abreu for which the Commissioner reimbursed the New York State Department of
Social Services (“DSS”) out of Abreu’s retroactive Supplemental Security Income (“SSI”); (2)

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Augenbaum, who is not admitted to the bar, was an intern in the office of the United States
Attorney and argued for the Commissioner with the permission of this court.

the Administrative Law Judge’s (“ALJ”) dismissal of Abreu’s request for a hearing challenging
the amount of the payments; and (3) the Appeals Council’s dismissal of her request for review.
The Commissioner has moved to dismiss for lack of subject matter jurisdiction, pursuant to Fed.
R. Civ. P. 12(b)(1). Oral argument was heard on July 29, 2011, at which Abreu appeared via
telephone. For the reasons stated below, the Commissioner’s motion to dismiss is granted.
BACKGROUND
On May 31, 1994, Abreu filed an application for SSI benefits because of her
hearing impairment and chronic intestinal disease. An ALJ subsequently found that Abreu was
disabled and she was awarded benefits. On February 8, 2002, an SSI notice of award informed
Abreu that her first payment of retroactive SSI benefits in the amount of $29,445.99 was being
withheld pursuant to a written interim assistance reimbursement agreement Abreu had made with
the DSS. Under that agreement and pursuant to 42 U.S.C. § 1383 and 20 C.F.R. § 416.1901,
Abreu had agreed to reimburse the DSS for interim assistance benefits paid to her from May 31,
1994 to August 31, 2001, while her application for disability benefits was pending. On June 6,
2002, the Commissioner notified Abreu that DSS had verified the amount of money due to DSS
as $29,445.99.
Four and one-half years later, on December 27, 2006, Abreu requested a hearing
to confirm the amount that was due to DSS. In an order dated March 3, 2008, ALJ Sol
Wieselthier dismissed Abreu’s request for a hearing based on 20 C.F.R. § 416.1920, which
provides that when a recipient of benefits disagrees with the amount of interim assistance
allegedly owed to a state, he or she is entitled to a hearing by the state, but not to a federal
hearing. 20 C.F.R. § 416.1920. The Commissioner maintains that the March 3, 2008 dismissal
was mailed to Abreu that same day. With that dismissal, Abreu was also notified that she was

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required to file any requests for review of the ALJ’s decision within 60 days of receiving the
notice. Thus, any timely requests for review needed to be filed by May 7, 2008. 2
On April 23, 2009, the Social Security Administration (“SSA”) received Abreu’s
request for a review of ALJ Wieselthier’s decision. The request was on an agency form and had
a handwritten date of October 15, 2008. On June 30, 2009, the Appeals Council received a copy
of the request, along with two handwritten and signed letters from Abreu. The first was written
in English and dated April 15, 2009. The other was written in Spanish, translated into English by
the SSA, and dated July 28, 2009. In these letters, Abreu wrote that she had not received ALJ
Wieselthier’s March 3, 2008 dismissal until June 13, 2009. Thus according to Abreu, she had
until August 17, 2009 to file any timely requests for review.
On August 23, 2010, the Appeals Council responded to Abreu’s request, asking
for a statement of reasons why she had not filed her request for review by May 7, 2008. On
September 23, 2010 Abreu responded, explaining that on April 15, 2009, she had written to the
Appeals Council explaining that she and her sister had been sick; stating that her request for a
review of her records from April 23, 2009 had been denied; and reiterating that she had not
received the March 3, 2008 dismissal until June 13, 2009. On November 23, 2010, the Appeals
Council dismissed her request for review of ALJ Wieselthier’s decision because Abreu had not
shown good cause for extending the filing period. The Appeals Council stated that “there was no
indication that the hearing office had mailed the March 3, 2008 Notice of Dismissal late” and
that Abreu’s mailing address was clearly correct since she had received all of the other
correspondence regarding this matter in a timely fashion. The Appeals Council also found
incredible Abreu’s claim that she had received the dismissal notice on June 13, 2009 when her

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The notice stated that the Commissioner assumed it would be received five days after March 3,
2008, unless Abreu could prove that she did not receive it within that time period.

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request for review of the ALJ’s decision had been dated October 15, 2008 and received by SSA
on April 23, 2009.
On January 31, 2011, Abreu commenced this action.
DISCUSSION
A.

Liberal Construction of a Pro Se Plaintiff’s Complaint
Where a plaintiff proceeds pro se, the court must liberally construe her

submissions on “the understanding that ‘[i]mplicit in the right to self-representation is an
obligation on the part of the court to make reasonable allowances to protect pro se litigants from
inadvertent forfeiture of important rights because of their lack of legal training.’” Abbas v.
Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.
1983)) (alteration in the original). In construing Abreu’s complaint, I therefore “interpret [it] ‘to
raise the strongest arguments that [it] suggest[s],’” McPherson v. Coombe, 174 F.3d 276, 280 (2d
Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)) (alterations added).
B.

Standard of Review
A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction is

warranted when the district court lacks statutory or constitutional power to adjudicate it. Nowak
v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996). The plaintiff bears the
burden of proving subject matter jurisdiction by a preponderance of the evidence. Aurecchione
v. Schoolman Transp. Sys., Inc., 426 F.3d 635 (2d Cir. 2005). The court must construe all
ambiguities and draw all inferences in favor of the plaintiff. Makarova v. United States, 201
F.3d 110, 113 (2d Cir. 2000).

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C.

The Commissioner’s Motion To Dismiss
Before a court may properly consider a decision of the Commissioner, § 405(g)

requires that a claimant exhaust her administrative remedies. Maloney v. Harris, 526 F. Supp.
621, 622 (E.D.N.Y. 1980). Even then, Title II and Title XVI of the Social Security Act authorize
a civil action only to review a “final decision of the Commissioner of Social Security made after
a hearing.” 42 U.S.C. § 405(g). What constitutes a “final decision” is defined by the
Commissioner’s regulations, Weinberger v. Salfi, 422 U.S. 749, 767 (1975), which establish the
administrative process for obtaining a final decision subject to judicial review. 20 C.F.R. §
416.1400(a); see also Bowen v. City of New York, 476 U.S. 467 (1986). Courts have usually
deferred to the policy reasons behind this administrative scheme. “[A]n interpretation that would
allow a claimant judicial review simply by filing and being denied a petition to reopen his claim
would frustrate the congressional purpose . . . . Our duty, of course, is to respect that choice.”
Califano v. Sanders, 430 U.S. 99, 108 (1977). Abreu has not exhausted the administrative
requirements because her request for review was dismissed for untimeliness. The dismissal of
her appeal by the Appeals Council on that ground, is “not reviewable by the district court
because it is not a ‘final decision’ within the meaning of § 405(g).” 3 20 C.F.R. §§ 416.19711972; see also Dietsch v. Schweiker, 700 F.2d 865, 867 (2d Cir. 1983) (also holding that a refusal
to extend the filing time on a showing of good cause is not subject to judicial review).

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Additionally, even if Abreu’s request for review was subject to review by this court, she has not
shown that her case meets the standard for an equitable tolling. The equitable tolling doctrine might allow this court
to displace the Appeals Council’s refusal to extend the 60-day window for appeals of an ALJ’s decision. However,
the equitable tolling doctrine applies only to cases “where the equities in favor of tolling the limitations period are
‘so great that deference to the agency’s judgment is inappropriate.’” Bowen v. City of New York, 476 U.S. at 480
(quoting Mathews v. Eldridge, 424 U.S. 319, 330 (1976)); see also Wong v. Bowen, 854 F.2d 630, 631 (1988)
(“Equitable tolling thus far has been allowed only in those cases where the government has hindered a claimant’s
attempts to exercise her rights by acting in a misleading or clandestine way.”). Abreu alleges that she filed her
request late because her sister was ill and because she, herself, was also undergoing some sort of medical treatment
or physical therapy. Abreu’s reasons, however, are insufficient to show good cause. See Wong, 854 F.2d at 631
(even claimant’s own illness was insufficient good cause for further time extension).

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CONCLUSION
For the foregoing reasons, the Commissioner’s motion to dismiss is granted.

So ordered.
John Gleeson, U.S.D.J.
Date: August 4, 2011
Brooklyn, New York

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