Coles v. Barnhart
Filing
19
ORDER granting 12 Motion to Dismiss. For the reasons set forth in the attached Memorandum and Order, IT IS HEREBY ORDERED that the defendant's motion to dismiss is granted in its entirety. The Clerk of the Court shall enter judgment accordingly and close this case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/5/2012. (O'Neil, Jacquelyn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 10-CV-4751 (JFB)
_____________________
JOSEPH COLES,
Plaintiff,
VERSUS
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
Defendant.
___________________
MEMORANDUM AND ORDER
March 5, 2012
__________________
JOSEPH F. BIANCO, District Judge:
plaintiff’s action for lack of subject matter
jurisdiction because the final determination
of the SSA was fully favorable to the
plaintiff. The Court finds that plaintiff’s
case is not reviewable by this Court.
Accordingly, the Commissioner’s motion to
dismiss is granted.
Joseph Coles (the “plaintiff” or “Coles”)
commenced this action, pursuant to the
Social Security Act, 42 U.S.C. § 405(g),
challenging the decision of the defendant,
the Commissioner of the Social Security
Administration (the “Commissioner”), that
affirmed
the
Social
Security
Administration’s
(the
“SSA”)
fully
favorable decision that found that plaintiff
was disabled as of December 3, 2003.1 The
Commissioner has moved to dismiss the
I. BACKGROUND
On November 9, 2000, the SSA denied
plaintiff’s first application for Supplemental
Security Income (“SSI”) benefits. (AR2 49.)
Plaintiff did not appeal the SSA’s November
9, 2000 decision. (AR 49.) Plaintiff filed a
second application for SSI benefits on
December 3, 2003 which was denied by the
SSA on February 23, 2004. (AR 46-48, 1215.) Coles requested a hearing and appeared
1
As discussed infra, plaintiff’s complaint challenges
an earlier decision finding that he was not disabled.
(Compl. at 8-9.) That decision has been vacated and,
in a subsequent decision, the Administrative Law
Judge found that plaintiff was disabled as of
December 3, 2003. (Administrative Record 203-11.)
Thus, in an abundance of caution, this Court
construes plaintiff’s complaint as a challenge to the
most recent decision by the SSA that was affirmed by
defendant.
2
“AR” refers to the administrative record filed on
appeal.
1
Judge will address only the period
of the original application through
June 15, 2006.
before Administrative Law Judge (“ALJ”)
Joseph R. Faraguna on June 23, 2005. (AR
16, 184-99.) On September 15, 2005, ALJ
Faraguna found that plaintiff was not
disabled, and the Appeals Council denied
plaintiff’s request for review of ALJ
Faraguna’s decision on May 10, 2006. (AR
36-45, 6-8.)
(AR. 223.)
A hearing was held before ALJ Faraguna
on August 20, 2008, and on September 12,
2008, ALJ Faraguna issued a fully favorable
decision finding plaintiff disabled since
December 3, 2003, which was the
application date of plaintiff’s second SSI
application. (AR 227-36, 203-11.) ALJ
Faraguna noted that:
On July 7, 2006, the Appeals Council
received a second request to review ALJ’s
Faraguna’s decision that indicated that
plaintiff has “[m]ore medical evidence” and
“[j]ust received a medical allowance claim
for SSI.” (AR 5.) The Appeals Council
construed the filing to be a request to
reopen, which was denied, and for an
extension of time to file a civil action, which
was granted. (AR 3-4.) Plaintiff then
commenced a civil action in the United
States District Court for the Eastern District
of New York under docket number 07-CV0043 (JFB). (AR 216-17.) By Stipulation
and Order dated July 5, 2007, this Court
remanded the case to the Commissioner for
further administrative proceedings. (AR
216-17.) On August 3, 2007, the Appeals
Council vacated ALJ Faraguna’s decision
and remanded the case for further
administrative proceedings. (AR 219-23.)
The Appeals Council stated that:
The decision on the claimant’s
prior Title XVI application is not
being reopened and revised
because the current application was
not filed within 2 years from the
date of the notice of the initial
determination
on
the
prior
application (20 CFR 416.1488 et
seq.). Additionally, the provisions
of Social Security Ruling 91-5p
were considered and do not apply.
Accordingly, the previous decision
is final and binding.
(AR 206.) On or about October 14, 2008,
plaintiff submitted a letter that stated:
I would like to appeal the decision
that was made on my disability
case, I fully agree to getting back
from December 2003 until now.
But I am appealing the denial on
my case from November 9, 2000, I
was disabled then and I should be
fully compensated for those years
also.
[t]he claimant’s back disorder and
affective disorder limited him to
performing less than a full range of
sedentary work.
The evidence
indicated that the claimant could
only perform simple unskilled
sedentary work.
The Appeals
Council concludes that this
determination is supported by the
evidence of record in the
subsequent claim file. Therefore,
the Council affirms [the] State
agency’s determination dated June
16, 2006. The Administrative Law
(AR. 237.) On August 14, 2010, the
Appeals Council found no reason to assume
jurisdiction over plaintiff’s appeal. (AR
200-02.) The Appeals Council stated:
2
filed plaintiff’s opposition to its motion to
dismiss. The defendant’s accompanying
letter explained that plaintiff called
defendant’s office the week prior and
indicated that he had mailed his response to
the motion to dismiss on March 11, 2011.
Defendant informed plaintiff that the
opposition was never received and requested
another copy. However, the paper filed was
a letter dated March 11, 2011, from plaintiff
to Loretta Lynch explaining that he did not
receive the money awarded to him by a
Judge in Jericho, New York. Attached to
the letter are documents from a state court
proceeding. The letter does not provide a
response to the arguments raised by the
defendant, nor does the letter address the
plaintiff’s claims in this case. The Court has
fully considered the submissions of the
parties.
In reaching this conclusion, the
Appeals Council considered the
exceptions raised in response to the
hearing decision. You contend that
you are appealing the denial on a
case from November 9, 2000 when
you were disabled. The September
12, 2008 hearing decision was fully
favorable with respect to the
December 3, 2003 Supplemental
Security Income (SSI) claim. The
decision expressly addressed the
issue of reopening and/or extending
the time to appeal the prior final
determination on the prior November
9, 2000, SSI claim but found that the
timeframe for reopening had expired
by the time the current, December 3,
2003 application was filed, and the
provisions of Social Security Ruling
91-5p findings, the hearing decision
mistakenly referenced the November
9, 2000 application in the decisional
paragraph
and
should
have
referenced the December 3, 2003
application. The Appeals Council
determines that this was harmless
error. The Appeals Council finds no
basis for disturbing the December 3,
2003 hearing decision and its finding
of disability as of that date. There is
no reason to adjudicate the issue of
disability prior to that date. The
hearing decision was in fact, fully
favorable.
II. STANDARD OF REVIEW
The defendant has moved to dismiss the
complaint under Rule 12(b)(1) of the
Federal Rules of Civil Procedure.
“A case is properly dismissed for lack of
subject matter jurisdiction under Rule
12(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). In
reviewing a motion to dismiss under Rule
12(b)(1), the court “must accept as true all
material factual allegations in the complaint,
but [the Court is] not to draw inferences
from the complaint favorable to plaintiffs.”
J.S. ex rel. N.S. v. Attica Cent. Schs., 386
F.3d 107, 110 (2d Cir. 2004). Moreover, the
court “may consider affidavits and other
materials beyond the pleadings to resolve
the jurisdictional issue, but we may not rely
on conclusory or hearsay statements
contained in the affidavits.”
Id. “The
plaintiff bears the burden of proving subject
(AR 200.)
Plaintiff filed this action on October 15,
2010, as well as an application to proceed in
forma pauperis. On October 21, 2010, this
Court granted plaintiff’s application to
proceed in forma pauperis. On February 15,
2011, defendant filed a motion to dismiss
this action for lack of subject matter
jurisdiction. On May 11, 2011, defendant
3
the plaintiff. In that decision, ALJ Faraguna
stated that “[a]fter careful review of the
entire record, the undersigned finds that
claimant has been disabled from December
3, 3003 through the date of this decision.”
(AR 206.) Thus, the decision was fully
favorable to plaintiff and is not reviewable
by this Court.
matter jurisdiction by a preponderance of the
evidence.” Aurecchione v. Schoolman
Transp. Sys., Inc., 426 F.3d 635, 638 (2d
Cir. 2005).
III.
DISCUSSION
Plaintiff’s complaint alleges that ALJ
Faraguna’s September 15, 2005 decision
was erroneous and not supported by
substantial evidence in the record and/or
contrary to the law. (Compl. at ¶¶ 8, 9.)
However, as discussed supra, ALJ
Faraguna’s September 15, 2005 decision
was already vacated and a fully favorable
decision was issued on September 12, 2008.
Therefore, in an abundance of caution, the
Court construes plaintiff’s complaint as a
challenge to the September 12, 2008
decision.
B.
Defendant
argues
that
the
Commissioner’s denial of plaintiff’s request
to reopen the November 9, 2000
determination on plaintiff’s SSI is not
reviewable by this Court. For the reasons
set for forth below, this Court agrees.
20 C.F.R. § 416.1487 provides that,
(a) General. Generally, if you are
dissatisfied with a determination or
decision made in the administrative
review process, but do not request
further review within the stated time
period, you lose your right to further
review and that determination or
decision becomes final. However, a
determination or a decision made in
your case which is otherwise final
and binding may be reopened and
revised by us.
Defendant argues that because plaintiff
received a favorable decision he lacks
standing to bring this suit and, accordingly,
this Court lacks jurisdiction. Additionally,
defendant argues the ALJ Faraguna’s denial
of plaintiff’s request to reopen the
November 9, 2000 determination on
plaintiff’s SSI claim is not subject to judicial
review. For the reasons set forth below, this
Court agrees.
A.
Denial of Plaintiff’s Request to
Reopen First SSI Claim
Standing to Challenge a Favorable
Decision
(b) Procedure for reopening and
revision. We may reopen a final
determination or decision on our
own initiative, or you may ask that a
final determination or a decision to
which you were a party be reopened.
In either instance, if we reopen the
determination or decision, we may
revise that determination or decision.
The conditions under which we may
reopen a previous determination or
decision, either on our own initiative
The Second Circuit has made clear that
“[j]udicial review over Social Security
determinations pursuant to 42 U.S.C.
§ 405(g) ‘makes no provision for judicial
review of a determination favorable to the
complainant.’” Heller v. Comm’r of Soc.
Sec., 328 F. App’x 74, 75 (quoting Jones v.
Califano, 576 F.2d 12, 19 (2d Cir. 1978)).
In this case, ALJ Faraguna’s September
12, 2008’s decision was fully favorable to
4
request to reopen the November 9, 2000
determination, it was untimely because it
was filed more than two years after the
initial determination denying the prior
application.
(Def.’s Memo at 5.)
Moreover, defendant argues that because the
denial of plaintiff’s request to reopen is an
administrative action that is not an initial
determination, it is not reviewable by this
Court. (Def.’s Memo at 5.) This Court
agrees. As stated by ALJ Faraguna in the
September 12, 2008 decision,
or at your request, are explained in §
416.1488.
20 C.F.R. § 416.1487. The time period for
reopening a determination or decision on an
SSI claim is within twelve months of the
initial determination for any reason, or
within two years of the initial determination
for good cause. 20 C.F.R. § 416.1488.
Good cause is found when: (1) “[n]ew and
material evidence is furnished”; (2) “[a]
clerical error was made”; or (3) “[t]he
evidence that was considered in making the
determination or decision clearly shows on
its face that an error was made.” 20 C.F.R.
§ 416.1489. Good cause will not be found
“[i]f the only reason for reopening is a
change
of
legal
interpretation
or
administrative ruling upon which the
determination or decision was made.” Id.
The decision on the claimant’s
prior Title XVI application is not
being reopened and revised
because the current application was
not filed within 2 years from the
date of the notice of the initial
determination
on
the
prior
application (20 CFR 416.1488 et
seq.).
A denial of a request to reopen a
determination
or
decision
is
an
administrative action and it is not an initial
determination.
20 C.F.R. § 416.1403.
According to 20 C.F.R. § 416.1403(a)(5), a
denial of a request to reopen a determination
is “[n]ot subject to the administrative review
process . . .” and is [n]ot subject to judicial
review.” Id; see also Byam v. Barnhart, 336
F.3d 172, 179 (2d Cir. 2003) (“As a general
rule, federal courts lack jurisdiction to
review an administrative decision not to
reopen a previous claim for benefits.”)
(citing Califano v. Sanders, 430 U.S. 99,
107-09, 97 S.Ct. 980, 51 L.Ed.2d 192
(1977)). “Nevertheless, federal courts may
review the Commissioner’s decision not to
reopen a disability application in two
circumstances: where the Commissioner has
constructively reopened the case and where
the claimant has been denied due process.”
Byam, 336 F.3d at 179.
(AR 206.) Thus, the request to reopen the
denial of plaintiff’s SSI on November 9,
2000 was untimely. Moreover, the denial of
the request to reopen is not reviewable by
this Court. As stated supra, denials of
requests to reopen a determination or
decision are not subject to review unless the
Commissioner constructively reopened the
case or the plaintiff was denied due process.
See Byam, 336 F.3d at 179. Here, plaintiff
has not made any argument that he was
denied due process or that the Commissioner
constructively reopened the case. Moreover,
despite plaintiff’s failure to raise any
argument in opposition to the motion to
dismiss, the Court has reviewed the
Administrative Record and finds that the
Commissioner did not constructively reopen
plaintiff’s November 9, 2000 SSI
application, but rather, explicitly stated that
it was not reopening its decision.
In
addition, plaintiff’s rights to due process
were not violated. Accordingly, this Court
Defendant argues that, if the December
3, 2003 application for SSI is deemed a
5
is precluded from reviewing the decision not
to reopen the November 9, 2000
determination. Thus, defendant’s motion to
dismiss must be granted.3
IV. CONCLUSION
For the foregoing reasons, the
Commissioner’s motion to dismiss is
granted in its entirety. The Clerk of Court
shall enter judgment accordingly and close
this case.
SO ORDERED.
__________________
JOSEPH F. BIANCO
United States District Judge
Dated: March 5, 2012
Central Islip, New York
*
*
*
Plaintiff is proceeding pro se: Joseph Coles,
724 East Main Street – Howell Avenue,
Riverhead, NY 11901. The attorney for the
defendant is: Arthur Swerdloff Esq., United
States Attorney’s Office, Eastern District of
New York, 271 Cadman Plaza East,
Brooklyn, New York 11201.
3
Defendant also states that “[i]t merits noting that in
so far as plaintiff may argue that mental incapacity
provides good cause for missing the 60-day deadline
for seeking review of the November 9, 2000 denial,
the ALJ expressly considered the provisions of Social
Security Ruling (“SSR”) 91-5p, but found that they
were not applicable.” (Def.’s Memo. at 5.) Plaintiff
has not raised this argument in his papers. In any
event, the Court agrees that the ALJ expressly
considered these provisions, and there is absolutely
no basis in the record to disturb the ALJ conclusion
that they were inapplicable.
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