Judge v. Astrue
Filing
28
MEMORANDUM & ORDER granting 21 Motion to Dismiss for Lack of Jurisdiction; For the foregoing reasons, the Commissioners motion is GRANTED and this action is DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. The Court certifies that 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 the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444--45, 82 S. Ct. 917, 920, 8 L. Ed. 2d 21 (1962). The Clerk of the Court is directed to amend the docket to reflect that Carolyn W. Colvin is now the Social Security Commissioner, to mark this matter CLOSED, and to mail a copy of this Memorandum and Order to pro se Plaintiff. So Ordered by Judge Joanna Seybert on 9/3/2014. C/M to pro se Pltff via FCM. C/ECF to Judgment Clerk. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
ROBERT E. JUDGE,
Plaintiff,
MEMORANDUM & ORDER
12-CV-02633(JS)
-againstCAROLYN W. COLVIN, Social Security
Commissioner,1
Defendant.
---------------------------------------X
APPEARANCES
For Plaintiff:
Robert E. Judge, pro se
P.O. Box 327
Huntington, NY 11743
For Defendant:
Loretta E. Lynch, Esq.
United States Attorney’s Office
Eastern District of New York
610 Federal Plaza, 5th Floor
Central Islip, NY 11722
SEYBERT, District Judge:
On
(“Plaintiff”)
Security
Act,
May
22,
commenced
as
2012,
this
amended,
plaintiff
action
42
Robert
pursuant
to
U.S.C. § 405(g),
E.
Judge
the
Social
challenging
defendant the Commissioner of Social Security’s (“Defendant” or
the “Commissioner”) denial of his application for disabled adult
children’s benefits.
Currently pending before the Court is the
Commissioner’s motion to dismiss this action for lack of subject
matter jurisdiction pursuant to Federal Rule of Civil Procedure
The Clerk of the Court is directed to amend the docket to
reflect that Carolyn W. Colvin is now the Social Security
Commissioner.
1
12(b)(1).
For the following reasons, the Commissioner’s motion
is GRANTED.
BACKGROUND
On April 12, 2005, Plaintiff filed a claim, pursuant
to 42 U.S.C. § 402(d)(1), for disabled adult child’s benefits
based on the earnings of his father, who died on March 28, 1983.
See Judge v. Astrue, No. 09-CV-4058, 2011 WL 1810468, at *1
(E.D.N.Y.
May
10,
2011).
According
to § 402(d)(1),
an
individual may be entitled to disabled adult child’s benefits
based on the record earnings of an insured deceased person if:
(i) the claimant is eighteen years of age or older; and (ii)
suffers from a disability that began before he attained twentytwo years of age.
Plaintiff, born on January 25, 1955, claimed
that he had been disabled since January 5, 1975.
Following
(“ALJ”)
issued
Plaintiff’s
judicata.
a
a
hearing,
decision
application,
Id.
on
finding
the
Id.
Administrative
September
that
it
19,
was
Law
2005
barred
Judge
denying
by
res
The ALJ decided that the application sought the
same benefits as a previous application from Plaintiff, which
had been denied on September 14, 1995.
Id.
Plaintiff next filed an action in the United States
District Court for the Eastern District of New York under Docket
Number 05-CV-5160 on November 3, 2005.
Id.
On September 6,
2007, Judge Arthur D. Spatt remanded the case to the Social
Security
Administration
(“SSA”)
for
additional
proceedings,
pursuant to the fourth sentence of 42 U.S.C. § 405(g), when it
became apparent that the SSA could not locate copies of the
September 14, 1995 decision denying Plaintiff’s disabled adult
child’s benefit application (on which the res judicata ruling
was predicated) as well as the notices advising him of that
decision,
of
his
failing to appeal.
right
to
appeal,
and
of
consequences
from
Id.
Following
remand,
on
June
10,
2008,
Plaintiff
appeared, without counsel, and again testified before the ALJ.
Id.
The hearing was adjourned to August 20, 2008 in order to
obtain
medical
expert
testimony.
Id.
On
August
Plaintiff once again appeared without counsel.
Id.
hearing,
de
the
ALJ
assessed
Plaintiff’s
claim
20,
2008,
At this
novo
and
concluded that on October 31, 2008 Plaintiff was not disabled
prior
to
January
12,
1977,
and
disabled adult child’s benefits.2
declined
to
assume
jurisdiction
therefore
Id.
not
entitled
to
After the Appeals Council
over
Plaintiff’s
case,
the
decision of the ALJ became the final decision of Commissioner.
Id.
Plaintiff filed another action in the United States
District Court for the Eastern District of New York under Docket
The ALJ may have inadvertently listed the wrong date, as
Plaintiff was born on January 25, 1955.
2
Number 09-CV-4058.
(Def.’s Br., Docket Entry 23, at 2.)
On May
5, 2011, this Court remanded that case to the Commissioner for
further administrative proceedings because Plaintiff, proceeding
pro se, was not fully apprised of his availability to obtain
legal representation and thus did not submit a waiver of the
right to counsel.
See Judge, 2011 WL 1810468, at *3-4.
Upon
remand, the Appeals Council vacated the October 21, 2008 ALJ
decision
and
proceedings.
remanded
the
case
(Def.’s Br. at 3.)
to
a
new
ALJ
for
further
On March 20, 2012, following
another hearing, the new ALJ issued a decision finding that
Plaintiff was not entitled to disabled adult child’s benefits.
(Def.’s Br. at 3.)
Plaintiff timely filed exceptions to that
decision with the Appeals Counsel on April 17, 2012.
Br. at 3.)
(Def.’s
While a decision from the Appeals Council was still
pending, Plaintiff commenced the instant action.
(Def.’s Br. at
3.)
DISCUSSION
Defendant now seeks to dismiss this action for lack of
subject matter jurisdiction.
The Court will first address the
applicable legal standard before turning to Defendant’s motion
more specifically.
I. Standard of Review
“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).
resolving
a
motion
jurisdiction,
materials
to
the
Court
beyond
questions.
the
dismiss
may
for
lack
consider
pleadings
to
of
subject
affidavits
resolve
In
matter
and
other
jurisdictional
See Morrison v. Nat’l Australia Bank, Ltd., 547 F.3d
167, 170 (2d Cir. 2008).
The Court must accept as true the
factual allegations contained in the complaint, but it will not
draw
argumentative
inferences
in
favor
of
Plaintiffs
because
subject matter jurisdiction must be shown affirmatively.
See
id.; Atlanta Mut. Ins. Co. v. Balfour Maclaine Int’l Ltd., 968
F.2d 196, 198 (2d Cir. 1992); Shipping Fin. Servs. Corp. v.
Drakos,
140
F.3d
129,
131
(2d
Cir.
1998).
“A
plaintiff
asserting subject matter jurisdiction has the burden of proving
by a preponderance of the evidence that it exists.”
Makarova,
201 F.3d at 113.
II. The Commissioner’s Motion to Dismiss
Before a court may properly consider a decision of the
Commissioner, § 405(g)
requires
that
available administrative remedies.
a
claimant
exhaust
all
See Maloney v. Harris, 526
F. Supp. 621, 622 (E.D.N.Y. 1980), aff’d, 657 F.2d 264 (2d Cir.
1981).
Even then the Social Security Act authorizes 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, 766, 95 S. Ct 2457, 2467, 45 L. Ed. 522 (1975), which
establish
the
administrative
process
for
obtaining
a
final
decision subject to judicial review, 20 C.F.R. § 416.1400(a).
Courts have usually deferred to the policy reasons behind this
administrative scheme, noting that “an interpretation that would
allow a claimant judicial review simply by filing and being
denied
a
petition
to
reopen
his
congressional purpose . . . .”
claim
would
frustrate
the
Califano v. Sanders, 430 U.S.
99, 108, 97 S. Ct. 980, 986, 51 L. Ed. 2d 192 (1977).
Here, there is no final decision because the Court
remanded to the ALJ, Plaintiff then filed exceptions to the
ALJ’s
decision,
and
the
Appeals
Council
apparently
assumed
jurisdiction but did not render its own decision or remand to
the ALJ.
See 20 C.F.R. §§ 404.983-404.984; see also Jackson v.
Asture, No. 09-CV-1290, 2010 WL 3777732, at *1 n.1 (E.D.N.Y.
Sept. 21, 2010) (“When a case is remanded by a district court
and, in turn, to an ALJ for further proceedings, the decision of
the
ALJ
constitutes
the
final
decision
of
the
Commissioner
unless the Appeals Council thereafter assumes jurisdiction (1)
at the claimant’s request, or (2) absent such request, in its
discretion within 60 days after the ALJ’s decision.”).
Defendant’s
submissions
demonstrate
that
Plaintiff
requested that the Appeals Council take jurisdiction and that
the appeal is still currently pending.3
Entry 22, ¶ 4(j) & Ex. 9.)
state of affairs.
before
the
Plaintiff has not disputed this
Accordingly, there is no “final decision”
Court,
jurisdiction.
(See Ortiz Decl., Docket
therefore
depriving
it
of
subject
matter
See, e.g., Perez v. Apfel, 22 F. App’x 67, 67 (2d
Cir. 2001) (“Perez filed her complaint while her request for
review
of
the
ALJ’s
Appeals Council.
administrative
court
lacks
Martin
v.
decision
was
still
pending
before
the
Appellant has therefore failed to exhaust her
remedies
subject
Astrue,
and,
matter
No.
as
a
consequence,
jurisdiction
07-CV-0928,
2008
over
WL
the
her
district
claim.”);
314524,
at
*3
(N.D.N.Y. Feb. 4, 2008) (holding that the court lacked subject
matter jurisdiction because the plaintiff filed her complaint
only seven days after the ALJ’s decision and she therefore did
not
give
the
Appeals
Council
the
opportunity
to
potentially
assume jurisdiction).
CONCLUSION
For the foregoing reasons, the Commissioner’s motion is
GRANTED and this action is DISMISSED WITHOUT PREJUDICE for lack
Defendant indicates that the Appeals Council may have
discontinued its review until this Court has made a
determination. (See Docket Entry 26.) There is no indication,
however, that the Appeals Council has denied review or decided
the case.
3
of subject matter jurisdiction.
The
Court
certifies
that
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 the purpose of any appeal.
See Coppedge v. United
States, 369 U.S. 438, 444—45, 82 S. Ct. 917, 920, 8 L. Ed. 2d 21
(1962).
The Clerk of the Court is directed to amend the docket
to reflect that Carolyn W. Colvin is now the Social Security
Commissioner, to mark this matter CLOSED, and to mail a copy of
this Memorandum and Order to pro se Plaintiff.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
September
3 , 2014
Central Islip, NY
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