Hatcher v. Commissioner's Office Social Security Admininstration

Filing 39

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATIONS granting 25 Motion to Dismiss for Failure to State a Claim; adopting Report and Recommendations as to 32 Report and Recommendations. For the foregoing reasons, IT IS HEREBY ORDERED tha t Plaintiff's objections are OVERRULED, Judge Tiscione's R&R (ECF No. 32) is ADOPTED as stated herein, the Commissioner's motion to dismiss (ECF No. 25) is GRANTED, and this action is DISMISSED. Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies 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. The Clerk of the Court is respectfully directed to amend the case caption to reflect Andrew Saul, as the Commissioner of the Social Security Administration, as defendant, mail a copy of this Memorandum and Order to pro se Plaintiff, terminate all pending motions, and mark this case CLOSED. So Ordered by Judge Joanna Seybert on 3/31/2021. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
PHILIP HATCHER,
Plaintiff,
MEMORANDUM & ORDER
18-CV-2282(JS)(ST)

-againstANDREW SAUL,1 COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
-------------------------------------X
APPEARANCES
For Plaintiff:
Philip Hatcher, pro se
P.O. Box 803
Copiague, New York 11726
For Defendant:

Vincent Lipari, Esq.
United States Attorney’s Office
Eastern District of New York
610 Federal Plaza, 5th Floor
Central Islip, New York 11722

SEYBERT, District Judge:
Plaintiff Philip Hatcher (“Hatcher” or “Plaintiff”),
proceeding pro se, initiated this action against the Commissioner
of

the

Social

Security

Administration

(“the

Commissioner”

or

“Defendant”) alleging violations of his constitutional rights,
among other claims, in connection with an application for Social
Security Disability Benefits (“SSDI”).

(See generally Second Am.

Andrew Saul is now the Commissioner of the Social Security
Administration. Pursuant to Federal Rule of Civil Procedure 25(d),
Saul is hereby substituted for Nancy A. Berryhill as the defendant
in this action. See, e.g., Pelaez v. Berryhill, No. 12-CV-7796,
2017 WL 6389162, at 1 n.1 (S.D.N.Y. Dec. 14, 2017), Report and
Recommendation Adopted, 2018 WL 318478 (S.D.N.Y. Jan. 3, 2018).
1

Compl., ECF No. 14.)

On February 8, 2020, the Commissioner moved

to dismiss the Second Amended Complaint for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).
(Mot., ECF No. 25; Pl. Opp., ECF No. 26.)

The Court referred the

motion to Magistrate Judge Steven Tiscione for a report and
recommendation (“R&R”).

(See Apr. 7, 2020 Elec. Order.)

Before

the Court is Judge Tiscione’s February 3, 2021 R&R (ECF No. 32),
as well as Plaintiff’s objections2 (Pl. Objs., ECF No. 34, at ECF
pp. 5-7 (titled “Response to Report and Recommendation”); see also
Pl. Suppl. Objs., ECF No. 35).
R&R

is

ADOPTED

as

stated

For the reasons that follow, the

herein,

Plaintiff’s

objections

are

OVERRULED, and the Commissioner’s motion is GRANTED.

Plaintiff also submitted a letter motion “TO RULE IN FAVOR OF
PLAINTIFF,” dated March 27, 2021 (ECF No. 37), and a “SUPPLEMENTAL
TO REPORT AND RECOMMEND,” dated March 20, 2021 (ECF No. 38). The
Court construes these as untimely objections.
“Notwithstanding
the untimeliness of [Plaintiff’s . . .] objections or the fact
that Plaintiff filed multiple sets of objections without court
approval, this Court’s holdings remain the same because
Plaintiff’s untimely objections largely reiterate the content
included in his timely objections. Braxton/Obed-Edom v. City of
New York, No. 17-CV-0199, 2020 WL 1303558, at *1 n.1 (S.D.N.Y.
Mar. 19, 2020).
2

2

BACKGROUND AND PROCEDURAL HISTORY3
Except where noted, the Court adopts and incorporates
the facts and procedural history as set out in the R&R by Judge
Tiscione.

(See R&R at 2-4.)

As recited by Judge Tiscione:

Hatcher filed for SSDI benefits on May 5,
2010. On October 22, 2013, an Administrative
Law Judge (“ALJ”) found that Hatcher was not
disabled as defined by the Social Security Act
(20 CFR 404.1520(f)).
The ALJ’s primary
reasoning appears to be based upon the
testimony of a vocational expert.
On March
24, 2015, the [Social Security Administration
(“SSA”)] Appeals Council denied review of the
ALJ’s decision.
In turn, on May 27, 2015,
Hatcher commenced the previous action in the
District Court. Hatcher [v. Colvin], 15-cv3282, 2017 WL 1323747, at *1 (E.D.N.Y. March
22, 2017) [(Feuerstein, J.)]. In that case,
the court granted the defendant’s motion to
remand the action for further proceedings due
to the ALJ’s failure to correctly apply the
applicable legal standard to the testimony of
the vocational expert. . . .
On November 13, 2017, the SSA sent a letter to
the Plaintiff notifying him of a hearing
scheduled for February 28, 2018. Among other
things, the letter instructed Hatcher that
should he fail to attend the hearing and not
offer “a good reason” his case may be
dismissed.
Hatcher
returned
an
Acknowledgement
of
Receipt
form,
dated
December 14, 2017, stating that he would not
be present at the February 28, 2018 hearing
because, “any and all future scheduling of
hearings
are
automaticly
[sic]
unconstitutional for failure of disclosure.”
Hatcher also submitted letters to the SSA

For the purpose of resolving
12(b)(1), the Court accepts all
Amended Complaint as true. See
CV-0615, 2021 WL 1108556, at *1
3

the motion to dismiss under Rule
factual allegations in the Second
Beni v. State Of New York, No. 18(E.D.N.Y. Mar. 23, 2021).
3

outlining
hearing.

his

objections

to

attending

the

In a letter dated February 14, 2018, the SSA
reminded Hatcher of his hearing date and again
warned him that if he failed to appear without
a “good reason” his case would be dismissed.
Hatcher responded with another letter to the
SAA, explaining that he considered the
February 14, 2018 reminder letter to be elder
abuse.
The Plaintiff failed to appear at the February
28, 2018 hearing and, as determined by the
ALJ, did not offer a good reason for his
absence.
Accordingly, Hatcher’s case was
dismissed.
Hatcher did not appeal this
dismissal to the SSA Appeals Council.4
(R&R at 2-3 (citations omitted).)
Plaintiff commenced this action on or around April 17,
2018.

(Compl., ECF No. 1.)

After filing two amended complaints,

the Commissioner moved to dismiss the Second Amended Complaint,
arguing that the Court lacks subject matter jurisdiction because
(1) the SSA is immune from suit and has not waived sovereign
immunity (see Comm’r Br., ECF No. 20-1, at 6-8), and (2) Hatcher
is not entitled to an award of benefits and there is no final
decision to review because Plaintiff failed to appear in the

Plaintiff objects to this finding, arguing that he did appeal
the ALJ’s dismissal. (See Pl. Objs. at ECF pp. 5-6 (arguing that
certain evidence supports a finding that Plaintiff filed an appeal
of the ALJ’s dismissal); see also Pl. Suppl. Objs. at ECF p. 3
(stating the Commissioner’s assertion that he did not file an
appeal is “false and untrue”).) The Court addresses this argument
below.
4

4

underlying administrative proceedings on remand (id. at 8-10).
Plaintiff opposes the motion arguing that the Federal Bureau of
Investigation is actively investigating “unlawful behavior by the
Commissioner’s office,” which is “extremely relevant to this civil
proceeding” (Pl. Opp. at 2-5) and “under 1983, the sovereign
immunity [doctrine] is not applicable” (id. at 5).
After referral from this Court, on February 3, 2021,
Judge Tiscione issued the R&R recommending that this Court grant
Defendant’s motion to dismiss in its entirety.

First, Judge

Tiscione construed claims against the Commissioner as brought
pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 402
U.S. 388 (1971), and not 42 U.S.C. § 1983.

(R&R at 6-7.)

Under

a Bivens analysis, the court applied the doctrine of sovereign
immunity and determined that the Commissioner is immune from suit
because the Second Amended Complaint fails to allege that the
Commissioner waived sovereign immunity.

(Id. at 7-8.)

Second,

Judge Tiscione analyzed Plaintiff’s allegations that he was the
victim of fraud under the Federal Torts Claims Act and recommended
that the Court dismiss the claims because Plaintiff did not name
the United States as a defendant.

(Id. at 8-9.)

Third, and to

the extent asserted, Judge Tiscione found that judicial review of
the SSA’s dismissal determination is barred by sovereign immunity
because “Plaintiff never received a final decision from the SSA[.]”
(Id. at 9-10.)

5

DISCUSSION
Plaintiff

filed

objections

and

argues

that

the

Commissioner withheld “3 pieces of evidence” that support his
allegations “of the torts of the Commissioner’s office.”
generally Pl. Suppl. Objs.; Pl. Objs. at ECF pp. 5-7.)

(See

Plaintiff

also argues that he “now amend[s] this civil claim to include the
violation of the Federal Tort Claims Act [(“FTCA”)]” because the
Commissioner’s office “failed to produce” a document dated April
26, 2018 wherein he appealed the ALJ’s dismissal order (the “April
26 Letter”).

(Pl. Objs. at ECF p. 4; April 26 Letter, attached to

Pls. Objs. at ECF pp. 2-4.)

The Commissioner did not respond to

the objections.
A “district judge must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.
The district judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.”

FED. R. CIV. P. 72(b)(3).

“The objections of parties appearing pro se are ‘generally accorded
leniency’ and should be construed ‘to raise the strongest arguments
that they suggest.’”

Brown v. Smith, No. 09-CV-4522, 2012 WL

511581, at *2 (E.D.N.Y. Feb. 15, 2012) (quoting Milano v. Astrue,
No. 05–CV–6527, 2008 WL 4410131, at *2 (S.D.N.Y. Sept. 26, 2008)).
For the avoidance of doubt, and given Plaintiff’s pro se
status, the Court considers Plaintiff’s objections and will review

6

the R&R de novo.

As a preliminary matter, Plaintiff submits two

exhibits in support of his objections that were not referenced in
the Second Amended Complaint or in opposition to Defendant’s motion
to dismiss.5
Notice

of

Generally,

(See April 26 Letter; Workers’ Compensation Board

Decision,
courts

attached

“do

not

to

Pls.

consider

Objs.

new

at

evidence

ECF

p.

raised

8.)
in

objections to a magistrate judge’s report and recommendation.”
Tavares v. City of New York, No. 08-CV-3782, 2011 WL 5877548, at
*2 (S.D.N.Y. Nov. 23, 2011) (collecting cases).

Indeed, “[t]he

submission of new evidence following [a magistrate judge’s R&R] is
merited only in rare cases, where the party objecting . . . has
offered a most compelling reason for the late production of such
evidence, or a compelling justification for [its] failure to
present such evidence to the magistrate judge.”

Fischer v.

Forrest, 286 F. Supp. 3d 590, 603 (S.D.N.Y. 2018), aff’d, 968 F.3d
216 (2d Cir. 2020) (alterations in original) (internal citations
omitted).
exhibits.

Although

not

required,

the

Court

considers

these

Brown, 2012 WL 511581, at *1 (“[E]ven in a de novo

review of a party’s specific objections, the court will not
consider ‘arguments, case law and/or evidentiary material which
could have been, but [were] not, presented to the magistrate judge

Plaintiff also submitted an August 26, 2017 letter from a SSA
hearing officer (see Pls. Objs. at ECF pp. 9-10) that is attached
to the Second Amended Complaint (see Second Am. Compl. at ECF pp.
61-62).
5

7

in the first instance.’” (quoting Kennedy v. Adamo, No. 02–CV–
1776, 2006 WL 3704784, at *1 (E.D.N.Y. Sept. 1, 2006))).
discussed

below,

however,

the

Court’s

consideration

of

As

these

exhibits does not change the ultimate determination that dismissal
of the Second Amended Complaint is appropriate.
Turning to the merits, the Court agrees with Judge
Tiscione that “[t]here is no private right of action under the
Social Security Act,” and “Plaintiff is barred from bringing a
civil

action

against

the

SSA

for

monetary

violations of the Social Security Act.”

relief

based

on

Katsoulakis v. Astrue,

No. 10-CV-0081, 2011 WL 3877080, at *5 (E.D.N.Y. Aug. 31, 2011).
Second,

“to

the

extent

[P]laintiff

is

attempting

to

allege

violations of [his] constitutional rights by the SSA,” Judge
Tiscione correctly found that “the SSA is immune from suit.”

Id.

Indeed, a Bivens claim against the SSA, which is “a federal
agency[,] is precluded” because “an action against a federal agency
is essentially a suit against the United States, and Bivens actions
against

the

United

sovereign immunity.”

States

are

barred

under

the

doctrine

of

Id. (quoting Sereika v. Patel, 411 F. Supp.

2d 397, 402 (S.D.N.Y. 2006); further citation omitted). Therefore,
Plaintiff’s Bivens claims against the SSA, to the extent asserted,
are DISMISSED.
Third, while a claim under Bivens “may be brought against
a

federal

officer

in

his

individual

8

capacity,”

id.

(quoting

Sereika, 411 F. Supp. 2d at 402), Plaintiff’s individual claims
against the Commissioner are similarly “barred because the Supreme
Court has held that social security claimants may not bring Bivens
actions alleging violations of their constitutional rights.”

Id.

at *6 (citing Schweiker v. Chilicky, 487 U.S. 412, 424–25 (1988)
(“The [Social Security] Act . . . makes no provision for remedies
in

money

damages

against

officials

responsible

for

unconstitutional conduct that leads to the wrongful denial of
benefits.”)).

In Schweiker, the Supreme Court declined to carve

out a “money damages remedy against Social Security employees
finding that Congress’ ‘inaction has not been inadvertent’ and
that ‘the design of [the Social Security] program suggests that
Congress

has

provided

what

it

considers

adequate

mechanisms’ through the administrative process.”
Schweiker,

487

U.S.

at

423)

(alterations

remedial

Id. (quoting
in

original).

Accordingly, Plaintiff’s Bivens claims against the Commissioner,
to the extent asserted, are DISMISSED.
Fourth, the Court agrees with Judge Tiscione that any
claim under the FTCA necessarily fails, including the “proposed”
amended claim recited supra, because Plaintiff does not name the
United States as a defendant and “[t]he SSA cannot be sued for
negligence based on the doctrine of sovereign immunity, which bars
FTCA

suits

against

federal

agencies.”

Katsoulakis,

2011

WL

3877080, at *5 n.1 (citing 28 U.S.C. § 2679(a)) (further citations

9

omitted); Langella v. Bush, 306 F. Supp. 2d 459, 463 (S.D.N.Y.
2004) (“Under the FTCA, suit must be brought directly against the
United States, and federal agencies are immune from suit.”). Thus,
Plaintiff’s claims under the FTCA are DISMISSED.
Fifth,

like

Judge

Tiscione,

the

Court

considers

Plaintiff’s claim, to the extent alleged, seeking judicial review
of the ALJ’s dismissal of his application for SSDI benefits after
he failed to appear at a hearing on remand from this Court.

The

Court understands that Plaintiff may argue that Judge Tiscione
erred

in

concluding

there

was

not

a

final

decision

because

Plaintiff submitted numerous letters to the SSA purporting to
“appeal” the ALJ’s dismissal, and that the Appeals Council never
responded to Plaintiff’s request.

(See March 14, 2018 Letter,

attached to Second Am. Compl. at ECF p. 99; March 31, 2018 Letter,
id. at ECF p. 96; April 26 Letter; May 11, 2018 Letter, attached
to Second Am. Compl. at ECF p. 110.)

Assuming that the letters

attached to the Second Amended Complaint constitute evidence of an
appeal to the Appeals Council of the ALJ’s dismissal, the claim
fails because Plaintiff commenced this action while his appeal was
pending

thereby

depriving

the

Court

of

subject

matter

jurisdiction.
Pursuant to 42 U.S.C. § 405(g), “judicial review is
authorized only after a ‘final decision of the Commissioner of
Social Security made after a hearing.’”

10

Ramos v. Astrue, No. 11-

CV-6204, 2012 WL 2358158, at *1 (E.D.N.Y. June 20, 2012). (quoting
Califano v. Sanders, 430 U.S. 99, 108 (1977)).

Where, as here, “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.”

Jackson v. Astrue, No. 09-CV-1290, 2010 WL 3777732, at

*1 n.1 (E.D.N.Y. Sept. 21, 2010) (citing 20 C.F.R. § 404.984(a)(d)); see also 20 C.F.R. § 404.984(b) (noting that the Appeals
Council may assume jurisdiction if a claimant files exceptions
disagreeing with ALJ’s decision).
The

record

before

the

Court

demonstrates

Plaintiff

initiated this action while his alleged appeal was pending with
the Appeals Council.

(See, e.g., March 14, 2018 Letter, attached

to Second Am. Compl. at ECF p. 99 (explaining “why the ‘Order of
Dismissal’,

dated

March

7,

2018,

will

be

declared

unconstitutional, illegal, null and void, . . . .”); Pl. Suppl.
Objs. at ECF pp. 2-4 (April 26, 2018 letter to Appeals Council,
among others, describing prior letters and stating “I now present
a formal appeal to the alleged fraudulent decision of March 7,
2018 that it should be reversed and the decision of 3/7/2018, be
dismissed as unconstitutional and therefore unqualified to dismiss
my application . . . .”).)

Thus, “there is no final decision” for

11

this Court to review as required by Section 405(g) because “the
Court

remanded

exceptions

to

[the
the

case]
ALJ’s

to

the

ALJ,

decision,

Plaintiff

and

the

then

Appeals

filed

Council

apparently assumed jurisdiction but did not render its own decision
or remand to the ALJ.”

Judge v. Colvin, No. 12-CV-02633, 2014 WL

4385420, at *2 (E.D.N.Y. Sept. 3, 2014) (Seybert, J.); 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 decision was
still pending before the Appeals Council.
failed

to

exhaust

her

Appellant has therefore

administrative

remedies

and,

as

a

consequence, the district court lacks subject matter jurisdiction
over her claim.”); Martin v. Astrue, No. 07–CV–0928, 2008 WL
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); accord Widman v. Comm’r of Soc.
Sec. Admin., 230 F. App’x 708 (9th Cir. 2007) (stating the ALJ’s
decision “did not become the final agency decision when the Appeals
Council did not respond to his request for review within sixty
days.” (citing 20 C.F.R. §§ 404.984(a), (b))).

Accordingly,

Plaintiff’s claim for judicial review of the ALJ’s dismissal of
his

application

for

SSDI

benefits

jurisdiction.

12

is

DISMISSED

for

lack

of

Finally, even assuming for arguments sake that this
Court

had

subject

matter

jurisdiction

over

Plaintiff’s

civil

action against the SSA, it would reject Plaintiff’s argument that
he would be entitled to a disability determination because the New
York State Workers’ Compensation Board issued a finding that he
has a “permanent disability of 50.00%.”

(Pl. Objs. at ECF p. 6

(Plaintiff objecting that “there would have been a profoundly
significant different result in favor of the plaintiff/claimant”
if the ALJ and district court received a copy of the Workers’
Compensation decision); see Workers’ Compensation Board Notice of
Decision, attached to Pls. Objs. at ECF p. 8.)

A “determination

of disability in the context of a workers’ compensation claim uses
a different standard than the Social Security Act.”

Ackley v.

Colvin, No. 13-CV-6656, 2015 WL 1915133, at *5 (W.D.N.Y. Apr. 27,
2015).

Thus, neither this Court nor an ALJ is “bound by . . .

conclusions that Plaintiff had varying degrees of disability for
workers’ compensation purposes.”

Guerra v. Comm’r of Soc. Sec.,

No. 16-CV-0991, 2018 WL 3751292, at *6 (W.D.N.Y. Aug. 7, 2018),
aff’d sub nom. Guerra v. Saul, 778 F. App’x 75 (2d Cir. 2019).
***
The

Court

has

considered

Plaintiff’s

objections and finds them to be without merit.

remaining

Accordingly, and

for substantially the reasons set forth in the R&R, Plaintiff’s
objections are OVERRULED and the R&R is ADOPTED as stated herein.

13

CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that
Plaintiff’s objections are OVERRULED, Judge Tiscione’s R&R (ECF
No. 32) is ADOPTED as stated herein, the Commissioner’s motion to
dismiss (ECF No. 25) is GRANTED, and this action is DISMISSED.
Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies
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 (1962).
The Clerk of the Court is respectfully directed to amend
the case caption to reflect Andrew Saul, as the Commissioner of
the Social Security Administration, as defendant (see supra Note
1), mail a copy of this Memorandum and Order to pro se Plaintiff,
terminate all pending motions, and mark this case CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERT________
Joanna Seybert, U.S.D.J.
Dated: March
31 , 2021
Central Islip, New York

14