Moses v. Commissioner of Social Security

Filing 19

REPORT AND RECOMMENDATIONS re: 12 MOTION to Dismiss for Lack of Jurisdiction, filed by Commissioner of Social Security, 2 Complaint filed by Anthony Moses. For the reasons set forth above, I recommend that the defendant's motion (Docket no. 12) be granted and the complaint be dismissed. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6{d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this report and reco mmendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Honorable Lorna G. Schofield, Room 201, 40 Foley Square, New York, New York 10007, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review. Objections to R&R due by 11/4/2013 (Signed by Magistrate Judge James C. Francis on 10/17/2013) Copies Mailed By Chambers. (ja)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
ANTHONY MOSES,
:
:
Plaintiff,
:
:
:
- against :
:
CAROLYN W. COLVIN, Acting
:
Commissioner of Social Security,
:
:
Defendant.
:
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE

13 Civ. 2041 (LGS) (JCF)
REPORT AND
RECOMMENDATION

The plaintiff, Anthony Moses, brings this action pro se
pursuant to 42 U.S.C. § 405(g), seeking judicial review of a
determination

of

the

Commissioner

of

the

Social

Security

Administration (the “Commissioner”) that dismissed his request for
a hearing on a claim for Supplemental Security Income (“SSI”)
benefits after the plaintiff failed to appear as scheduled before
an Administrative Law Judge (“ALJ”).

The Commissioner has filed a

motion to dismiss pursuant to Rule (12)(b)(1) of the Federal Rules
of Civil Procedure, contending that the district court lacks
subject matter jurisdiction.
For the reasons stated below, I recommend that the motion be
granted

so

that

the

Commissioner

may

provide

Mr.

Moses

an

opportunity to establish good cause for his failure to attend his
hearing.
1

Background
Anthony Moses filed a claim for SSI benefits in August 2011.
(Declaration of Patrick J. Herbst dated July 30, 2013, ¶ (3)(a)
(“Herbst Decl.”)).

The Social Security Administration (the “SSA”)

denied his application on January 4, 2012.
(3)(a)).

(Herbst Decl., ¶

On February 16, 2012, pursuant to the SSA’s guidelines,

Mr. Moses requested a hearing before an ALJ to challenge the SSA’s
determination.

(Herbst Decl., ¶ (3)(a)).

On April 5, 2012, the

SSA sent the plaintiff a Notice of Hearing, informing him that a
hearing had been scheduled for July 12, 2012.
(3)(b)).1

(Herbst Decl., ¶

Mr. Moses signed and returned an Acknowledgment for

Receipt of Hearing on April 11, 2012.

(Herbst Decl., ¶ (3)(b)).

On June 28, 2012, two weeks prior to the scheduled hearing, the SSA
sent Mr. Moses a Notice of Hearing Reminder.

(Herbst Decl., ¶

(3)(b)).
Mr. Moses did not attend the hearing on July 12, 2012, and
that same day the ALJ issued an Order of Dismissal for failure to
appear.

(Herbst Decl., ¶ (3)(c); Order of Dismissal, attached as

Exh. 1 to Herbst Decl.).

There is no indication that the SSA

attempted to contact Mr. Moses on or after the day of the hearing.
(Herbst Decl., ¶ (3)(c)).

Nor did the SSA send Mr. Moses a Notice

1

Although the Herbst Declaration refers to July 12, 2002, it
is apparent that the correct date is July 12, 2012.
2

to Show Good Cause, a common method of soliciting information
concerning reasons the claimant did not appear at his scheduled
hearing and assessing whether he may be eligible for another
hearing opportunity.
3(c)).

20 C.F.R. § 416.1457(b)(1) (Herbst Decl., ¶

Thus, no hearing was ever held either on the merits of Mr.

Moses’ claim or on the issue of whether Mr. Moses could demonstrate
good cause for failure to attend the scheduled hearing.
Mr. Moses sought review of the ALJ’s order by the Appeals
Council, which denied the request on January 24, 2013.

(Herbst

Decl., ¶ (3)(d); Action of Appeals Council on Request for Review of
Dismissal, attached as Exh. 2 to Herbst Decl.). The plaintiff then
filed this action on March 26, 2013.
Mr. Moses claims that he was unable to attend his hearing
before the ALJ because he was incarcerated on the date that it was
scheduled. (Affirmation in Opposition to Defendant’s Motion to
Dismiss dated August 2, 2013).

In light of the “information and

evidence supplied by Plaintiff with his request for Appeals Council
review and with the complaint he filed in District Court,” the
Appeals Council is now offering to provide Mr. Moses with a new
hearing for the purposes of determining whether he had good cause
for failing to appear at the July 12, 2012 hearing. (Herbst Decl.,
¶ (3)(e); Defendant’s Memorandum of Law in Support of Motion to
Dismiss (“Def. Memo.”) at 6).

3

Discussion
A. Standard of Review
In considering a motion to dismiss for lack of subject matter
jurisdiction, the court must accept as true all factual allegations
in the complaint and must draw all reasonable inferences in favor
of the plaintiff.

Natural Resources Defense Council v. Johnson,

461 F.3d 164, 171 (2d Cir. 2006).

Unlike on a Rule 12(b)(6)

motion, the court is authorized to consider matters outside of the
pleadings,

including

affidavits,

documents,

and

testimony

if

necessary.

See Kamen v. American Telephone & Telegraph Co., 791

F.2d 1006, 1010-11 (2d Cir. 1986); Melnitzky v. HSBC Bank USA, No.
06 Civ. 13526, 2007 WL 1159639, at *5 (S.D.N.Y. April 18, 2007).
Although the submissions of a pro se plaintiff like Mr. Moses must
be liberally construed, see McEachin v. McGuinnis, 357 F.3d 197,
200-01 (2d Cir. 2004), an action cannot be sustained if subject
matter jurisdiction is lacking.

Lyndonville Savings Bank & Trust

Co. v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000).
B.

42 U.S.C. § 405(g)

Section 405(g) of the Social Security Act provides for limited
judicial review of final decisions of the Commissioner.

That

section states, in pertinent part, that “[a]ny individual, after
any final decision of the Commissioner of Social Security made
after a hearing to which he was a party . . . may obtain review of

4

such decision” in a “district court of the United States.”
U.S.C.

§

405(g)

(emphasis

added).

The

SSA

has

42

promulgated

regulations outlining the process by which an applicant must
exhaust

administrative

remedies

decision” in federal court.

prior

to

appealing

a

“final

After the SSA makes a determination

regarding an initial request for benefits, an applicant who wishes
to contest that determination must first seek reconsideration, then
request a hearing before an ALJ and then, if still unsatisfied,
request a review of the ALJ’s decision by the Appeals Council.

20

C.F.R. § 416.1400(a); Louis v. Commissioner of Social Security, No.
09 Civ. 4725, 2010 WL 743939, at *2 (S.D.N.Y. March 2, 2010).2
Only after a plaintiff has completed these steps and obtained a
decision from the Appeals Council will the decision become “final”
and potentially eligible for federal district court review.

20

C.F.R. §§ 416.1400(a), 416.1481; see also Escalera v. Commissioner
of Social Security, 457 F. App’x 4, 6 (2d Cir. 2011).
An ALJ’s dismissal of a request for a hearing is binding,
unless it is subsequently vacated by the ALJ or the Appeals
Council.

20 C.F.R. § 416.1459.

That it is “binding,” however,

does not mean it is a “final decision.”

2

The Second Circuit

In some cases, including, apparently, Mr. Moses’, the SSA
eliminates the reconsideration step and simply notifies the
claimant that he may request a hearing before an ALJ immediately
after the initial determination. 20 C.F.R. § 416.1406(b)(4).
5

interprets Section 405(g) to grant jurisdiction to review an SSA
decision only if that decision follows an actual hearing on the
merits.

Dietsch v. Schweiker, 700 F. 2d 865, 867 (2d Cir. 1983)

(stating that Appeals Council dismissal predicated on procedural
default “is not reviewable by the district court because it is not
a ‘final decision’ under § 405(g)”).
“[d]ismissal

for

failure

to

Under this interpretation, a

appear

at

the

hearing

does

not

constitute a final decision on the merits and consequently cannot
be reviewed under 42 U.S.C. § 405(g).”

Milazzo ex rel. Rodriguez

v. Barnhart, No. 05 Civ. 9218, 2006 WL 2161781 (S.D.N.Y. Aug. 1,
2006) (citing Plagianos v. Schweiker, 571 F. Supp. 495, 497
(S.D.N.Y. 1982) (“[W]hen there was no hearing and determination on
the merits by a final decision, there is nothing for the court to
review

.

.

.

[and]

absent

any

constitutional

question,

an

application for judicial review fails to state a claim on which
relief may be granted.”)); see also Saldana v. Astrue, No. 07 Civ.
5893, 2008 WL 534762, at *2 (S.D.N.Y. Feb. 25, 2008) (“failure to
appear at [a] hearing [means] this Court lacks jurisdiction over
the action”); Urena v. Commissioner of Social Security, No. 02 Civ.
8537, 2003 WL 21702285, at *2 (S.D.N.Y. July 23, 2003) (invocation
of Section 405(g) jurisdiction was inappropriate to review an SSA
decision based on the procedural ground of failure to appear).
Mr. Moses appealed the denial of his claim first to an ALJ and

6

then

to

the

Appeals

Council,

the

appropriate

procedure

for

exhausting administrative remedies before seeking judicial review.
However, because Mr. Moses’ claim is based on the dismissal of his
request for a hearing after he failed to appear, and not the
outcome of a merits-based hearing, it is not a “final decision”
under § 405(g) that is subject to review by this court.
C.

Exceptions to 42 U.S.C. § 405(g)

There are certain circumstances in which a federal court may
review an SSI claim even though it has not been adjudicated on the
merits in a hearing that has produced a “final decision.”

For

example, while dismissal for lack of subject matter jurisdiction is
generally appropriate in cases involving a plaintiff’s failure to
appear, courts have dispensed with the hearing requirement when
“the plaintiff has raised a colorable constitutional claim relating
to

the

agency

decision.”

Guerra

v.

Commissioner

of

Social

Security, No. 12 Civ. 6750, 2013 WL 3481284, at *3 (S.D.N.Y. July
1,

2013)

(internal

quotation

marks

omitted).

A

colorable

constitutional claim includes allegations that the “SSA failed to
comply with its own procedures in considering [the plaintiff’s]
claim” or that “[the plaintiff] did not receive notice . . .
suggest[ing]

good

cause

for

having

attendant lack of due process.”

failed

to

appear

and

an

Id. at *4; see also Crumble v.

Secretary of Health & Human Services, 586 F. Supp. 57, 57-61

7

(E.D.N.Y. 1984) (denying motion to dismiss for lack of subject
matter jurisdiction in part because plaintiff had not received an
opportunity

to

explain

his

failure

to

appear

for

scheduled

hearing); Califano v. Sanders, 430 U.S. 99, 109 (1977) (noting
“well-established principle that when constitutional questions are
in issue, the availability of judicial review is presumed” under
Section 405(g)).
Additionally, a court may exercise mandamus jurisdiction under
28 U.S.C. § 1361 and review a social security claim even though it
has not been adjudicated after a hearing on the merits under 42
U.S.C. § 405(g).

In order to qualify for mandamus relief, a

plaintiff must demonstrate that (1) he has a right to have the act
at issue performed, (2) the defendant is under a clear nondiscretionary duty to perform that act, and (3) the plaintiff has
exhausted all other avenues of relief. See City of New York v.
Heckler, 742 F.2d 729, 739 (2d Cir. 1984); Urena, 2003 WL 21702285
at *2.
The SSA regulations allow an ALJ to dismiss a claimant’s
request for a hearing if he “[does not] appear[] at the time and
place set for the hearing . . . and good cause has not been found
by the [ALJ] for [his] failure to appear,” or if “[the claimant
does not] give a good reason for the failure to appear” in response
to a notice from the ALJ “asking why [he] did not appear.”

8

20

C.F.R. § 416.1457(b)(1).

Here, the ALJ apparently determined that

Mr. Moses had not established good cause for his failure to appear
at the hearing and dismissed his request for a hearing that same
day.

The ALJ did not attempt to contact Mr. Moses, who had

previously been responsive regarding his hearing, nor did the ALJ
send a letter requesting that Mr. Moses provide information to
establish good cause for having missed his hearing, as anticipated
in at least some instances by section 416.1457(b)(1)(ii) of the
regulations.

(Herbst Decl., ¶ (3)(e)).

Mr. Moses has not alleged that his constitutional rights were
violated when the ALJ and Appeals Council dismissed his request for
a hearing without providing an opportunity for him to show good
cause for his failure to attend, nor does he argue that the
prerequisites for mandamus jurisdiction have been met and that he
had a right to a non-discretionary hearing to establish good cause.
Such a determination is unnecessary at this time, as another avenue
of relief is available to Mr. Moses.

The Appeals Council has

indicated that it is now willing to hold a hearing on whether Mr.
Moses had good cause for his failure to appear in July 2012,
apparently reconsidering the information he submitted during his
original appeal to the Council in light of his complaint in this
case. (Herbst Decl., ¶ (3)(e)).

The SSA should be allowed this

opportunity to “correct its own errors” and “compile a record which

9

is adequate for judicial review.
749,

765

(1975)

Weinberger v. Salfi, 422 U.S.

1I

(listing rationales for requiring exhaustion of

administrative remedies prior to judicial review) .

Conclusion

For

the

reasons

set

forth

above,

I

recommend

that

the

defendant's motion (Docket no. 12) be granted and the complaint be
dismissed.

Pursuant to 28 U.S.C.

§

636(b) (1) and Rules 72, 6(a),

and 6{d) of the Federal Rules of Civil Procedure, the parties shall
have fourteen (14) days to file written objections to this report
and recommendation.

Such objections shall be filed with the Clerk

of the Court, with extra copies delivered to the Honorable Lorna G.
Schofield, Room 201, 40 Foley Square, New York, New York 10007, and
to the chambers of the undersigned, Room 1960, 500 Pearl Street,
New York, New York 10007.

Failure to file timely objections will

preclude appellate review.
Respectfully submitted,

~

(!. --:?,IUA-~ J. VI

JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE

Dated:

New York, New York
October 17, 2013

10

Copies mailed this date:
Anthony Moses
2477 Crotona Ave.
Bronx, NY 10458
Susan C. Branagan, Esq.
Assistant U.S. Attorney
86 Chambers Street, 3rd Floor
New York, NY 10007

11