Bitetto v. Commissioner of Social Security

Filing 12

DECISION AND ORDER: It is ORDERED that plaintiff's complaint in this action is DISMISSED without prejudice to his right to refile after obtaining a final determination from the Acting Commissioner concerning the overpayment decision challenged in his complaint. Signed by Magistrate Judge David E. Peebles on 11/15/2017.[Copy served upon pro se plaintiff via regular and certified mail.](mc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK

MARCO A. BITETTO,
Plaintiff,
Civil Action No.
1:17-CV-0557 (DEP)
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF:
MARCO A. BITETTO, Pro se
44th Avenue
Rensselaer, NY 12144
FOR DEFENDANT:
HON. GRANT C. JAQUITH
Acting United States Attorney for the
Northern District of New York
P.O. Box 7198
100 S. Clinton Street
Syracuse, NY 13261

DAVID E. PEEBLES
CHIEF U.S. MAGISTRATE JUDGE

KRISTINA D. COHN, ESQ.
Special Assistant U.S. Attorney

DECISION AND ORDER
Plaintiff Marco A. Bitetto, who is proceeding pro se, has commenced
this action pursuant to 42 U.S.C. § 405(g) challenging a decision rendered
in 1994 by a Social Security Administrative Law Judge ("ALJ"), concluding
that plaintiff was overpaid supplemental security income ("SSI") benefits
based upon his failure to comply with the pre-requisites for receiving those
payments. The Acting Commissioner of Social Security has moved to
dismiss the plaintiff's complaint based upon his alleged failure to fully
exhaust administrative remedies before commencing this action. For the
reasons set forth below, defendant's motion is granted, and plaintiff's
complaint is dismissed.1
I.

BACKGROUND
Plaintiff applied for SSI benefits under Title XVI of the Social Security

Act on June 29, 1983. Dkt. No. 11-2 at 3. Plaintiff was ultimately found by
the agency to be disabled, and thus eligible for the requested benefits as
of that date. Id.
In calculating plaintiff's SSI payments, the agency excluded income
and resources necessary to fulfill an approved Plan to Achieve Self-

1

This matter is before me on consent of the parties pursuant to 28 U.S.C. §
636(c). Dkt. No. 4.
2

Support ("PASS"). Dkt. No. 11-2 at 5. Plaintiff's PASS eligibility, however,
was terminated, effective in November 1992, for non-compliance with his
PASS plan. Id. at 4-5. As a result of that termination, the income and
resources associated with the implementation of plaintiff's PASS plan,
which were previously exempted in determining his eligibility for SSI
benefits, were thereafter factored into the eligibility calculus. Id. at 5. The
additional income and resources led to a finding that plaintiff was overpaid
SSI benefits in the amount of $10,216.00 for the period December 1992
through January 1995, and an additional amount of $6,028.00 for the
period of August 1991 through June 1992. Id. at 5-6. To recoup the
amount of the overpayment, the agency reduced plaintiff's SSI benefits by
$50 per month until 2014. 2 Id. at 6.
Plaintiff's appeal to an ALJ of the overpayment determination for the
period December 1992 through January 1995 was denied on November
22, 1994. 3 Dkt. No. 11-2 at 4. Since receiving the ALJ's decision, plaintiff
has not requested review by the Social Security Appeals Council
("SSAC"). Id.

2

It appears from the record now before the court that plaintiff's SSI payments
ceased altogether in October 2014. Dkt. No. 1 at 25-27.
3

Plaintiff did not challenge the overpayment determination related to the period of
August 1991 through June 1992. Dkt. No. 11-2 at 5-6.
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II.

PROCEDURAL HISTORY
Plaintiff commenced this action on or about May 22, 2017, seeking

judicial review of the ALJ's determination regarding his overpayment
pursuant to 42 U.S.C. § 405(g). Dkt. No. 1. In response to plaintiff's
complaint, the Acting Commissioner moved for its dismissal on September
7, 2017, arguing that Bitetto failed to exhaust internal remedies by first
requesting review of the ALJ's determination by the SSAC before
commencing suit. Dkt. No. 11-1. Defendant's motion, to which plaintiff has
not responded, is now ripe for determination, and has been taken on
submission.
III.

DISCUSSION
Plaintiff's challenge to the Acting Commissioner's decision is brought

pursuant to section 205(g) of the Social Security Act, which is codified at
42 U.S.C. § 405(g). That section provides, in relevant part, as follows:
Any individual, after any final decision of the
Commissioner of Social Security made after a
hearing to which he was a party, irrespective of the
amount in controversy, may obtain a review of
such decision by a civil action commenced within
sixty days after the mailing to him of notice of such
decision or within such further time as the
Commissioner of Social Security may allow.

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42 U.S.C. § 405(g) (emphasis added). 4 Because section 405(g)
constitutes a waiver by the government of its sovereign immunity, which
would otherwise protect it from suit, it is subject to strict construction.
Bowen v. City of N.Y., 476 U.S. 467, 479 (1986); Randell v. United States,
64 F.3d 101, 106 (2d Cir. 1995).
The Social Security Act itself does not define the term "final
decision" as utilized in section 405(g), leaving it to the agency to give
meaning to that term. Sims v. Apfel, 530 U.S. 103, 106 (2000). By
regulation, the Commissioner has defined the term "final decision" to
include instances in which the SSAC grants review of a claim, or denies a
claimant's request for review. 20 C.F.R. §§ 404.900(a)(5), 404.955,
404.981; Sims, 530 U.S. at 106-07. Under the Commissioner's
regulations, when a claimant fails to request review by the SSAC, there is
no final decision. Sims, 530 U.S. at 107. Accordingly, a claimant's failure
to seek review by the SSAC constitutes a failure to exhaust administrative
remedies. Id.; see also Weinberger v. Salfi, 422 U.S. 749, 765-66 (1975).

4

Section 405 also provides that an action challenging a decision of the
Commissioner of Social Security may be brought only in accordance with the statute.
42 U.S.C. § 405(h).
5

The importance of the exhaustion requirement in the context of
administrative rulings has been acknowledged by the Supreme Court,
which has noted that
[e]xhaustion is generally required as a matter of
preventing premature interference with agency
processes, so that the agency may function
efficiently and so that it may have 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.
Salfi, 422 U.S. at 765; see also Parisi v. Davidson, 405 U.S. 34, 37 (1972).
The requirement of exhaustion of administrative remedies, however, is not
an iron-clad bar to bringing a judicial challenge. Instead, it is subject to
exception upon a finding of judicial waiver, which is informed by three
relevant factors, including (1) whether the claim is collateral to a demand
for benefits; (2) whether exhaustion would be futile; and (3) whether the
plaintiffs would suffer irreparable harm if required to exhaust their
administrative remedies before obtaining relief. Abbey v. Sullivan, 978
F.2d 37, 44 (2d Cir. 1992). When determining whether a judicial waiver
should apply, the court must be guided by the strong policy considerations
underpinning the exhaustion requirement and the principal that
"[e]xhaustion is the rule, waiver the exception." Abbey, 978 F.2d at 44. In
this instance, none of those three factors favors a finding of judicial waiver.
6

In the documents attached to his complaint, it appears that plaintiff
attributes the delay in pursuing his challenge to the SSA's determination
that he was overpaid benefits to the fact that, shortly after the ALJ's
decision, he became homeless and lost all of his belongings, as well as a
guide dog. Dkt. No. 1 at 6. According to plaintiff, who holds a doctoral
degree in Cybernetics, Fluid Dynamics, and Mathematics, he remained
homeless for a period of ten years and believes it was caused, in large
part, by the agency's decision concerning his application for SSI benefits.
Id. at 6, 15. His complaint, however, contains no further explanation for the
twenty-three year delay in seeking review of the ALJ's decision rendered
in 1994. Accordingly, plaintiff fails to provide a basis for the court to
overlook his failure to seek SSAC review and invoke a judicial waiver to
the exhaustion requirement. See, e.g., Donaldson v. Comm'r of Soc. Sec.,
No. 09-CV-6293, 2009 WL 2045684, at *1 (W.D.N.Y. July 14, 2009)
(dismissing the plaintiff's complaint challenging a decision rendered by the
ALJ three years prior for failure to exhaust where the plaintiff did not
pursue an appeal to the SSAC); cf. Abbey, 978 F.2d at 47 ("[D]elay and
expense of the administrative . . . process do[es] not excuse compliance
with [the exhaustion requirement].")

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IV.

SUMMARY AND ORDER
Plaintiff's complaint in this action is subject to dismissal based upon

his failure to exhaust available internal administrative remedies, and
specifically to request review by the SSAC before commencing this action.
Accordingly, it is hereby
ORDERED that plaintiff's complaint in this action is DISMISSED
without prejudice to his right to refile after obtaining a final determination
from the Acting Commissioner concerning the overpayment decision
challenged in his complaint.
Dated:

November 15, 2017
Syracuse, New York

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