Moore v. Commissioner of Social Security

Filing 45

AMENDING ORDER granting 21 Motion to Dismiss for Lack of Jurisdiction -- The Written Summary Order was inadvertently not attached to the Order of Dismissal for failure to exhaust administrative remedies just issued by the Court. It is attached he reto. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and, therefore, in forma pauperis status is denied for purpose of an appeal. See, Coppedge v. United States , 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to mail a copy of the Attached Written Summary Order and this Electronic Order to pro se plaintiff and to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 7/21/2014.. Ordered by Judge Dora Lizette Irizarry on 7/21/2014. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ANISHA MOORE, pro se,
:
:
Plaintiff,
:
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-against:
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COMMISSIONER OF SOCIAL SECURITY,
:
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Defendant.
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DORA L. IRIZARRY, United States District Judge:

SUMMARY ORDER
13-CV-1867

Anisha Moore (“Plaintiff”) filed the instant action, pro se,

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against the

Commissioner of Social Security (“Defendant”), appealing two notices she received from
the Social Security Administration (“SSA”) and asserting a claim of fraud. (Plaintiff’s
Complaint (“Pl.’s Compl.”), Dkt. Entry No. 1.) Defendant moves, pursuant to Rule
12(b)(1) of the Federal Rules of Civil Procedure and the standards for judicial review
under the Social Security Act (“the Act”), to dismiss the instant action in its entirety.
(See generally Defendant’s Motion to Dismiss (“Def.’s Mot.”), Dkt. Entry No. 21.) As
set forth below, Defendant’s motion is granted as Plaintiff failed to exhaust her
administrative remedies. Accordingly, this action is dismissed.
BACKGROUND
The facts are taken from the Complaint and are assumed true solely for purposes
of resolution of this motion. (Pl.’s Compl. at 1.) Additionally, facts are taken from the
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Pro se pleadings are held “to less stringent standards than formal pleadings drafted by lawyers.”
Hughes v. Rowe, 449 U.S. 5, 9 (1980) (citation omitted). Courts should “interpret [such papers] to raise the
strongest arguments that they suggest.” Forsyth v. Fed’n Emp’t & Guidance Serv., 409 F. 3d 565, 569 (2d
Cir. 2005) (citation and internal quotation marks omitted). Though a court need not act as an advocate for
pro se litigants, in such cases there is a “greater burden and a correlative greater responsibility upon the
district court to insure that constitutional deprivations are redressed and that justice is done.” Davis v.
Kelly, 160 F. 3d 917, 922 (2d Cir. 1998) (citation omitted).

Defendant’s Memorandum of Law in Support of Defendant’s Motion to Dismiss
((“Def.’s Mem.”) Dkt. Entry No. 23), the Declaration of Donald V. Ortiz ((“Ortiz
Decl.”), Dkt. Entry No. 23-1 ¶¶ 1-3), and the Declaration of Julio Infiesta ((“Infiesta
Decl.”), Dkt. Entry No. 23-2 ¶¶ 1-3).
Since 1992, Plaintiff has received Supplemental Security Income (“SSI”) under
Title XVI of the Act based on a finding of mental retardation. (Ortiz Decl. ¶ 3(a).) In
2010, Plaintiff filed for Child’s Insurance Benefits (“CIB”) under Title II of the Act. (Id.)
On December 13, 2011, an Administrative Law Judge (“ALJ”) found that Plaintiff was
entitled to CIB in a fully favorable decision.

(Id. ¶ 3(b).) However, because SSI

payments are determined based on financial eligibility requirements, Plaintiff’s SSI was
reduced from $771 to $137 per month beginning April 2012 to account for the award of
CIB benefits. (Infiesta Decl. ¶ 2.) The ALJ also determined that an additional $14
should be withheld from Plaintiff’s SSI payments to account for a previous overpayment
of $4,200.07. (Id.) Plaintiff received notice of the ALJ’s decision as well as instructions
regarding how to file an appeal of the ALJ’s decision. (See Notice, attached as Ex. 1 to
Infiesta Decl.) The notice instructed Plaintiff to file an appeal with the Appeals Council
within 60 days of receipt of the notice if she disagreed with the ALJ’s decision. (Id.)
Plaintiff never filed an appeal. (Id. ¶ 3(c).)
On May 15, 2012, Plaintiff filed an action under 42 U.S.C. § 405(g) and §
1383(c)(3) in this Court. (Def.’s Mem. at 2.) On August 8, 2012, Plaintiff requested that
the case be closed. (Id. at 3.)
On February 25, 2013, Plaintiff filed the instant action in the United States
District Court for the Southern District of New York. (Id.) The Complaint alleges

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“fraud” and seeks “back payments” of $12,000 as well as restoration of her SSI to the
rate of $771.00. (Id.) On April 3, 2013, the case was transferred to this Court. (Id.)
Presently, Defendant’s motion to dismiss is before the Court, which Plaintiff opposes.
(See Plaintiff’s Affidavit in Opposition to Defendant’s Motion (“Pl.’s Aff.”), Dkt. Entry
No. 25 ¶ 1-3.)
DISCUSSION
I.

Legal Standard for Dismissal
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a defendant may

move, in lieu of an answer, for dismissal of a complaint for “lack of subject-matter
jurisdiction.” In evaluating a motion to dismiss under Rule 12(b)(1), the court accepts as
true all factual allegations in the complaint; however, it should not draw inferences
favorable to the party asserting jurisdiction. J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.
3d 107, 110 (2d Cir. 2004) (citation omitted). “A case is properly dismissed for lack of
subject matter [sic] jurisdiction under Rule12(b)(1) when the district court lacks the
statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F. 3d
110, 113 (2d Cir. 2000). “The plaintiff bears the burden of proving subject matter [sic]
jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman Transp.
Sys., Inc., 426 F. 3d 635, 638 (2d Cir.2005). In determining the existence of subjectmatter jurisdiction, a district court may consider evidence outside the pleadings. Arar
v. Ashcroft, 532 F. 3d 157, 168 (2d Cir. 2008) (citing Makarova, 201 F. 3d at 113).
II.

Legal Standard for Judicial Review Under the Social Security Act
Under the Act, “[a]ny individual, after any final decision of the Commissioner of

Social Security made after a hearing to which he was a party . . . may obtain a review of

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such decision by a civil action commenced within sixty days after the mailing to him of
notice of such decision . . . .” 42 U.S.C. § 405(g). Similarly, under 42 U.S.C. §
1383(c)(3), [t]he final determination of the Commissioner of Social Security after a
hearing under paragraph (1) shall be subject to judicial review as provided in section
405(g) of this title . . . .”
However, claimants are required to exhaust all administrative remedies prior to
obtaining judicial review to allow the administrative system “important opportunities ‘to
make a factual record’ for purposes of classification,” to avoid the danger of “[inducing]
‘frequent and deliberate flouting of administrative process,’” and to “ensure that the
agency have additional opportunities ‘to discover and correct its own errors.’” McGee v.
United States, 402 U.S. 479, 484 (1971).

With regard to the Act, the exhaustion

requirement is “central to the requisite grant of subject-matter jurisdiction.” Weinberger
v. Salfii, 422 U.S. 749, 764 (1975).
The administrative process under the Act has been laid out as follows:
The administrative process is begun when [the claimant]
files a claim with the Social Security Administration . . . . If
the claim is administratively denied, regulations permit
administrative reconsideration within a six-month period . .
. . Should a request for reconsideration prove unsuccessful,
the claimant may, within 60 days, ask for an evidentiary
hearing before an administrative law judge, and a
discretionary appeal from an adverse determination of the
law judge lies to the Appeals Council. Finally, . . . 42
U.S.C. § 405(g), authorizes federal judicial review of ‘any
final decision of the Secretary made after a hearing to
which [the claimant] was a party . . . .
Califano v. Sanders, 430 U.S. 99, 101 (1977).
Defendant asserts that Plaintiff failed to exhaust. Plaintiff has not disputed any of
Defendant’s points, nor could she. Plaintiff failed to file an appeal for review with the

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Appeals Council. (Infiesta Decl. ¶ 3.) Instead, Plaintiff sought immediate review of the
ALJ’s decision by a federal court. (Def.’s Mem. at 23.) Under these circumstances, the
instant action must be dismissed for failure to exhaust administrative remedies. See Petre
v. Astrue, 2009 WL 3614606, at *1 (E.D.N.Y. Oct. 30, 2009) (holding that plaintiff’s
claim must be dismissed for failure to exhaust when plaintiff failed to appeal to the
Appeals Commission and immediately filed an action in the United States District Court
for the Eastern District of New York).
CONCLUSION
For the reasons set forth above, this action is dismissed for failure to exhaust
administrative remedies as required under 42 U.S.C. §§ 405(g) and 1383(c)(3). The Court
certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be
taken in good faith, and, therefore, in forma pauperis status is denied for purpose of an
appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.
Dated: Brooklyn, New York
July 21, 2014
/s/
DORA L. IRIZARRY
United States District Judge

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