Bannon v. Social Security Administration

Filing 7

MEMORANDUM AND ORDER, Pltff's 2 Motion for Leave to Proceed in forma pauperis is granted solely for the purpose of this Order. For the reasons below, the action is dismissed without prejudice because it lacks subject matter jurisdiction. Pltf f may re-file his complaint, if necessary, when he has exhausted his administrative remedies. The court certifies pursuant to 28 USC sec. 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied fo r the purpose of any appeal. The Clerk of Court is respectfully directed to serve pro se pltff with a copy of this memorandum and order and the docket, to note service on the docket, and to close this case. (Ordered by Judge Kiyo A. Matsumoto on 4/2/2018) c/m Fwd. for Judgment. (Galeano, Sonia)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF NEW YORK

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CARL T. BANNON,

MEMORANDUM & ORDER

Plaintiff,

17-CV-6859

-against-

(KAM)

SOCIAL SECURITY ADMINISTRATION,

Respondent.

MATSUMOTO, United States District Judge:
On November 20,

2017, plaintiff Carl T. Bannon,

proceeding pro se, filed the instant complaint seeking the
reinstatement of his Social Security benefits after his January

10, 2017 release from incarceration.

On February 2, 2018,

plaintiff submitted a letter supplementing his complaint,
(Letter, EOF No. 4) , and on February 14, 2018, plaintiff

submitted an amended complaint.

(Amended Complaint, ECF No. 6. )

Plaintiff's request to proceed in forma pauperis pursuant to 28
U.S.C. § 1915 is granted solely for the purpose of this Order.
For the reasons below,

prejudice.

the action is dismissed without

Plaintiff may re-file his complaint, if necessary,

when he has exhausted his administrative remedies.

cm

Background

The following facts are taken from plaintiff's

complaint and amended complaint.^

Plaintiff was released from

incarceration on January 10, 2017 and was briefly detained

thereafter at a halfway house.

(Compl., ECF No. 1 at 2.)

On

August 17, 2017, plaintiff received '"defendant's computation and
commitment . . . in the 'full monthly' benefit sum of $984.00."

(Compl. at 1.)

He seeks the payment of $10,824.00 ($984.00 per

month from February 2017 to December 2017) and an order voiding
defendant's claim of overpayment of benefits.
Plaintiff's amended complaint includes the "SSA-1099"

form he recently received, which identifies the total amount of
benefits paid to Plaintiff in 2017.

(Am. Compl. at 5.)

Plaintiff objects to the calculation of benefits reflected in
the 1099, stating that the form "specifies an unlawful deduction
from the Social Security benefits to which [plaintiff is]

entitled."

(Am. Compl. at SI 3.)

Although Plaintiff attaches an

undated letter addressed to the Social Security's Northeastern

Program Center in Jamaica, New York, concerning the wiring of
funds to the wrong bank account, the withholding of funds and
his confusion over changes in calculation of his benefits.

^ Although an amended complaint completely replaces a complaint,
Arce V. Walker, 139 F.3d 329, 332 n. 4 (2d Cir. 1998), given
plaintiff's pro se status, the Court considers both the
complaint and amended complaint.
2

(Attachment to Am. Compl., ECF No. 6 at 9), plaintiff appears to

acknowledge that he has not complied with the rigid exhaustion
requirements of the Social Security Administration C'SSA").
(See Am. Compl. at 5 5.)

Plaintiff seeks a waiver of the

requirement to exhaust administrative remedies on the basis of
his repeated conversations with Social Security Administration
("SSA") representatives at the Far Rockaway office, his advanced
age (plaintiff is approximately 85 years old), veteran status,
and homelessness.

(Am. Compl. at ^ 7.)
Standard of Review

Under 28 U.S. C. § 1915(e)(2)(B), a district court

shall dismiss an in forma pauperis action where it is satisfied
that the action "(i) is frivolous or malicious; (ii) fails to

state a claim on which relief may be granted; or (iii) seeks

monetary relief against a defendant who is immune from such
relief."

To avoid dismissal, a complaint must plead "enough

facts to state a claim to relief that is plausible on its face."
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

A claim

will be considered plausible on its face "when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the

misconduct alleged."
(2009).

Ashcroft v. Iqbal, 556 U.S. 662, 678

A court must construe a pro se litigant's pleadings

liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007); Harris v.
Mills, 572 F.3d 66, 72 (2d Cir. 2009), and a pro se complaint
should not be dismissed without granting the plaintiff leave to
amend "at least once when a liberal reading of the complaint

gives any indication that a valid claim might be stated," Gomez
V. USAA Fed. Sav. Bank, 111 F.3d 794, 795 (2d Cir. 1999)

(internal quotation marks and citations omitted).

Nevertheless,

"a pro se plaintiff must still comply with the relevant rules of
procedural and substantive law, including establishing that the
court has subject matter jurisdiction over the action."

Wilher

V. U.S. Postal Serv., No. lO-CV-3346 (ARR), 2010 WL 3036754, at

*1 (E.D.N.Y. Aug. 2, 2010) (internal quotation marks and
citations omitted).
Discussion

A plaintiff's failure to exhaust administrative
remedies with respect to claims that arise under the Social

Security Act, 42 U.S.C. § 301 et seq. ("the Act"), ordinarily
deprives a district court of jurisdiction to review those
claims.

Under 42 U.S.C. § 405(g), federal courts are vested

with subject matter jurisdiction only over "final decisions" of
social security claims.

A final decision, pursuant to 42 U.S.C.

§ 405(g), occurs when a social security claimant exhausts a
four-step administrative review process.
4

See 20 C.F.R. §

404.900(a).

These four steps must be requested by a claimant

within certain time periods and in the following order:
(1) initial determination; (2) reconsideration determination;

(3) hearing before an administrative law judge; (4) and Appeals
Council review.

See id.

Although the administrative steps

prescribed by the Commissioner of Social Security must be
exhausted in order to obtain a final decision, this requirement

is waivable by the Commissioner or the court in certain
circumstances.

Mathews v. Eldridge, 424 U.S. 319, 328 (1976)

(''The waivable element is the requirement that the

administrative remedies prescribed by the Secretary be
exhausted.

The nonwaivable element is the requirement that a

claim for benefits shall have been presented to the

Secretary.").

Waiver may occur when the following circumstances

are present: "(1) the claim is collateral to a demand for
benefits; (2) the exhaustion of remedies would be futile; and

(3) plaintiff[] would suffer irreparable harm if required to
exhaust administrative remedies."

Dickman v. Social Security

Administratiorir No. 17-cv-7062-MKB 2017 WL 6734183, at *2

(December 29, 2017) (quoting Steadman v. Calvin, No. 14-cv-7495,
2015 WL 4393022, at *5 (S.D.N.Y. July 14, 2015) and Pavano v.

Shalala, 95 F.3d 147, 150 (2d Cir. 1996)); Escalera v. Comm'r of

Soc. Sec., 457 F. App'x 4, 6 (2d Cir. 2011) (affirming district

court's dismissal of social security action for failure to
exhaust administrative remedies).

Although the court is sympathetic to plaintiff's

challenges, the court declines to waive the exhaustion of the
administrative remedies available to plaintiff.

Plaintiff's

complaint concerns a demand for benefits and there is no
indication that the remedies available to plaintiff, but not yet

pursued, would be futile.

See Escalera, 457 F. App'x at 6

C'Escalera's claim is not collateral to his demand for benefits,
as it involves a demand for benefits and investigation into his

wage earnings.").

Plaintiff's frustration with what he

characterizes as the ^'irrational implacable attitude of the
[SSA]" is not sufficient to show that administrative review of
his concerns would be futile, because the administrative process

provides an opportunity for agency review of an initial
determination.

20 C.F.R. § 404.900(a).

Indeed, exhaustion is

required in order to "prevent[] premature interference with
agency processes" and to give the agency "an opportunity to
correct its own errors, to afford the parties and the courts the

benefit of its experience and expertise, and to compile a record

which is adequate for judicial review."

{Weinberger v. Salfi,

422 U.S. 749, 765 (1975).

Until plaintiff exhausts his administrative remedies,
his action is premature and this court is without jurisdiction
6

to hear his claim for benefits.

See Escalera, 457 Fed. App'x at

7; Iwachi v. Massanarif 125 Fed. App'x. 330, 332 (2d Cir. 2005)
(^^The Commissioner's decision does not become ^final' until

^after the Appeals Council has denied review or decide the case
after review.'" (quoting Mathews v. Chater, 891 F. Supp. 186,
188 (S.D.N.Y. 1995)); Brown v. Calvin^ No. 16-CV-675 (JG), 2016
WL 614675, at *2 (E.D.N.Y. Feb. 12, 2016);

Baptiste v. Comm'r

of Soc. Sec., No. 09 CIV. 10178 (DLC), 2010 WL 2985197, at *1
(S.D.N.Y. July 27, 2010).
Conclusion

For the foregoing reasons, the Court dismisses the

instant pro se complaint without prejudice because it lacks

subject matter jurisdiction.

See Fed. R. Civ. P. 12(h) (3).

If

plaintiff completes the SSA administrative review process, he
may, if necessary, refile his complaint.2

The court certifies

pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be
taken in good faith and therefore in forma pauperis status is
denied for the purpose of any appeal.

Coppedge v. United

States, 369 U.S. 438, 444-45 (1962).

The Clerk of Court is

respectfully directed to serve pro se plaintiff with a copy of

2 Instructions on how to comply with the SSA exhaustion

requirements are clearly stated on the SSA's website, see
https://www.ssa.gov/ssi/text-appeals-ussi.htm, and are available
at the SSA service centers.
7

this memorandum and order and the docket, to note service on the
docket, and to close this case.
SO ORDERED.

/s/
KIYO A. MATSUMOTO

United States District Judge

Dated:

Brooklyn, New York
April 2, 2018