Romero v. Commissioner of Social Security
OPINION AND ORDER re: 25 MOTION to Dismiss for Lack of Jurisdiction or, in the alternative,. MOTION for Summary Judgment . filed by Commissioner of Social Security. The Commissioner's motion to dismiss (Doc. No. 25) isGRANTED. The Clerk is respectfully directed to close this action. SO ORDERED. (Signed by Magistrate Judge Katharine H. Parker on 2/8/18) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
GIRA ELISA ROMERO,
ON BEHALF OF MS. SHANTIELL
OPINION AND ORDER
-againstCOMMISSIONER OF SOCIAL SECURITY,
Pro se Plaintiff, Gira Elisa Romero, on behalf of Ms. Shantiell Guadalupe Crisostomo
(“S.G.C.”), brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the
Commissioner of the Social Security Administration’s (“Commissioner”) dismissal of Plaintiff’s
request for a hearing on a claim for Supplemental Security Income (“SSI”) benefits after Plaintiff
failed to appear at a scheduled hearing before an Administrative Law Judge (“ALJ”). The
Commissioner has moved for dismissal of this action for lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1) or, alternatively, pursuant to Federal Rule
of Civil Procedure 56(a) because Plaintiff has not exhausted her administrative remedies. (Doc.
No. 25.) For the reasons stated below, the motion is GRANTED.
On March 19, 1996, Plaintiff filed an application for Title XVI disability benefits on behalf
of her daughter, S.G.C. The claim for benefits was allowed under the childhood disability
standards. S.G.C. turned 18 years old on July 23, 2013. Based on a redetermination of disability
under the rules for adults, S.G.C. was found no longer disabled as of June 3, 2014. On August
14, 2014, Plaintiff sought reconsideration on behalf of her daughter. A disability hearing officer
subsequently upheld the determination that S.G.C. was no longer disabled as of June 3, 2014.
On December 31, 2014, Plaintiff requested a hearing before an Administrative Law
Judge to review the claim, which was scheduled for October 19, 2016. The Social Security
Administration (“SSA”) mailed notice of the hearing to Plaintiff at the Bronx, New York address
on file. The notice contained an explanation of how to request a change in the time and place
for the hearing and also advised that a failure to appear without good cause could result in
dismissal of the claim. The notice also included an acknowledgment of receipt, which was not
returned by Plaintiff or S.G.C. On or about October 5, 2016, the SSA sent a reminder of the
October 19, 2016 hearing to S.G.C. Neither Plaintiff nor S.G.C. responded to the reminder
Neither Plaintiff nor S.G.C. appeared at the scheduled hearing on October 19, 2016.
Thus, on or about December 1, 2016, the SSA mailed a Notice to Show Cause for Failure to
Appear. Neither Plaintiff nor S.G.C. responded to the notice. Accordingly, on February 1, 2017,
an ALJ issued an Order of Dismissal dismissing S.G.C.’s request for a hearing because she failed
to appear at the scheduled hearing.
S.G.C. sought review of the ALJ’s Order of Dismissal, which the Appeals Council denied
on July 18, 2017. On the same day, the SSA mailed S.G.C. a Notice of Overpayment indicating
that S.G.C. had been paid excess SSI benefits for the period September 2014 through February
2017. The notice informed S.G.C. of her right to ask for a waiver or an administrative appeal.
Neither Plaintiff nor S.G.C. requested a waiver or filed an appeal of the Notice of Overpayment.
On August 2, 2017, Plaintiff filed the instant action on behalf of S.G.C. The Commissioner
moved for dismissal of the action on December 4, 2017. Plaintiff did not respond to the motion,
prompting this Court to issue an order sua sponte granting Plaintiff additional time to respond.
On January 12, 2018, Plaintiff filed a letter opposing the Commissioner’s motion to dismiss. In
the letter Plaintiff admits that she and S.G.C. failed to appear at the hearing before the ALJ on
October 19, 2016 but explains that she and S.G.C. missed the hearing because Plaintiff’s
grandmother passed away on October 16, 2016 and she and S.G.C. had to attend the wake and
funeral on October 19, 2016, the date of the scheduled hearing. Plaintiff provided her
grandmother’s death certificate and other documentation to substantiate her explanation as
well as a letter from S.G.C.’s doctor stating that S.G.C. is under a doctor’s care for anxiety,
disruptive mood dysregulation disorder, intermittent explosive disorder, pervasive
developmental disorder, and moderate intellectual disabilities.
“Where a Rule 12(c) motion asserts that a court lacks subject matter jurisdiction, the
motion is governed by the same standard that applies to a Rule 12(b)(1) motion.” Cruz v. AAA
Carting & Rubbish Removal, Inc., 116 F. Supp. 3d 232, 239 (S.D.N.Y. 2015) (quotations omitted).
Under Federal Rule 12(b)(1), a defendant may move, in lieu of an answer, for dismissal of a
complaint for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). In evaluating a
motion to dismiss under Rule 12(b)(1), the court accepts as true all factual allegations in the
complaint; however, it should not draw inferences favorable to the party asserting jurisdiction.
J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 116 (2d Cir. 2004). “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). A plaintiff asserting subject matter jurisdiction has the burden of
proving by a preponderance of the evidence that it exists. Id. In reviewing the complaint, the
Court is mindful that, “[a] document filed pro se is to be liberally construed, and a pro se
complaint, however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted).
Accordingly, the Court interprets the complaint “to raise the strongest arguments that [it]
suggest[s].” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
Under Section 405(g) of the Social Security Act, the court is authorized to review a claim
for social security benefits only after the agency has made a final decision on the claim. See 42
U.S.C. § 405(g). A final decision generally is made by the agency after the claimant has gone
through a series of administrative appeals, attended a hearing before the ALJ and, if unhappy
with the ALJ’s decision, appealed to the Appeals Council. See id.; Bowen v. City of New York, 476
U.S. 467, 482-83 (1986). Indeed, the Second Circuit has interpreted Section 405(g) to grant
jurisdiction to the federal courts only if the SSA’s decision follows an actual hearing on the
merits. Dietsch v. Schweiker, 700 F.2d 865, 867 (2d Cir. 1983). A “[d]ismissal for failure to
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).” Dunn v. Comm’r of Soc. Sec., No. 13-cv-4398
(KMK) (JCM), 2016 WL 7015827, at *3 (S.D.N.Y. Sept. 21, 2016), adopted by, 2016 WL 6962544
(S.D.N.Y. Nov. 28, 2016).
In this case, Plaintiff did not obtain a final decision by the agency after a hearing on the
merits. Rather, Plaintiff missed the hearing, albeit for understandable reasons, and did not
respond to the SSA’s Notice to Show Cause or otherwise inadvertently send a response to the
wrong recipient. Thus, the ALJ dismissed Plaintiff’s request for a hearing due to her unexplained
failure to appear at the hearing, and the Appeals Council thereafter denied Plaintiff’s request
for review. Because Plaintiff’s claim here is based on the dismissal of her request for a hearing
after she failed to appear, and not the outcome of a merits-based hearing, it is not a “final
decision” under Section 405(g) of the Social Security Act. Therefore, this Court lacks jurisdiction
over this matter absent an exception. See id.
Although the SSA has discretion to waive the exhaustion requirement, Bowen, 476 U.S.
at 483, the SSA has not done so in this case. A court may itself excuse exhaustion if the
plaintiff’s claim is collateral to a demand for benefits, exhaustion would be futile, or the
requirement of exhaustion would result in irreparable harm. Skubel v. Fuoroli, 113 F.3d 330,
334 (2d Cir. 1997). Here, Plaintiff has not demonstrated that she falls under any of these
exceptions. Further, Plaintiff has not raised a colorable constitutional claim relating to the
agency decision. See Moses v. Colvin, No. 13-cv-2041 (LGS) (JCF), 2013 WL 5663071, at *3 (Oct.
17, 2013 S.D.N.Y.) (courts have dispensed with the hearing requirement when “the plaintiff has
raised a colorable constitutional claim relating to the agency decision”). Accordingly, no
exceptions apply and this Court therefore lacks jurisdiction over this action.
Because Plaintiff may petition the SSA to reopen and revise its determination under 20
C.F.R. § 416.1487, Plaintiff is strongly encouraged to contact the New York County Lawyers
Association (“NYCLA”) (a NYCLA flyer is attached to this Opinion and Order). NYCLA is an
organization that provides free legal assistance to litigants with Social Security cases and may
provide Plaintiff with advice on how to utilize the administrative remedies provided for in the
Social Security Act so that the SSA may render a final decision on the merits.
For the reasons set forth above, the Commissioner’s motion to dismiss (Doc. No. 25) is
GRANTED. The Clerk is respectfully directed to close this action.
Dated: February 8, 2018
New York, New York
KATHARINE H. PARKER
United States Magistrate Judge
Carol A. Sigmond
Michael J. McNamara
Stephen C. Lessard
September 15, 2016
Notice to all plaintiffs who have Social Security cases and SSI cases:
Megan P. Davis
Vincent T. Chang
Lewis F. Tesser
You have started a lawsuit in federal court against the Social
Security Administration. If you cannot afford a lawyer, you may qualify
for free legal representation.
The New York County Lawyers Association has provided free legal
assistance to thousands of people who cannot afford lawyers. We have a
program which provides lawyers in Social Security and SSI cases in federal
The program is free. The lawyers in our program are well-trained
in Social Security law and have the resources that they need to represent
you capably and zealously.
If you would like to consult with one of our lawyers, please call
Carolyn A. Kubitschek, at 212-349-0900, or email Lois Davis,
email@example.com. We cannot promise that everyone who calls will get a
lawyer, but we are committed to providing as many individuals as possible
with free legal representation.
Carol A. Sigmond
New York County Lawyers Association
14 Vesey Street, New York, NY 10007 • Tel. 212-267-6646 • Fax: 212-406-9252 • www.nycla.org
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