Williams v. Commissioner of Social Security

Filing 4

ORDER TO AMEND: ORDERED that because the nature and viability of Plaintiffs claims are not clear, the Court grants Plaintiff leave to amend her complaint to show that she exhausted administrative remedies with the SSA before filing this action in fed eral court, or to set forth facts showing that her failure to exhaust administrative remedies should be excused, consistent with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within sixty days of the date of this order, caption the document as an "Amended Complaint," and label the document with docket number 20 Civ. 5991. An Amended Social Security Complaint form is attached to this order. No summons will issue at thi s time. If Plaintiff fails to comply within the time allowed and cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted. The Court certifies under 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 an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstr ates good faith when he seeks review of a nonfrivolous issue). The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. SO ORDERED. (Signed by Judge Lorna G. Schofield on 8/07/2020) (ama) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JANICE WILLIAMS,
Plaintiff,
20 Civ. 5991
-againstORDER TO AMEND
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
Lorna G. Schofield, United States District Judge:
WHEREAS, pro se Plaintiff, Janice Williams, brings this action under 42 U.S.C. §
405(g), seeking judicial review of a final decision of the Commissioner of Social Security;
WHEREAS, a court must dismiss an in forma pauperis complaint, or portion thereof, that
is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see
Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). A court must also
dismiss a complaint when it lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). Pro se
pleadings are liberally construed, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpreted
to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted, emphasis in original);
WHEREAS, the Social Security Act permits claimants to seek review in federal court of
a “final decision of the Commissioner of Social Security made after a hearing to which [the
claimant] was party.” 42 U.S.C. § 405(g). If a complaint does not contain allegations showing
that there has been a final decision, then it does not satisfy the requirements for jurisdiction
under § 405(g). See Weinberger v. Salfi, 422 U.S. 749, 764 (1975) (“The statute empowers

district courts to review a particular type of decision by the Secretary, that type being those
which are ‘final’ and ‘made after a hearing.’”);
WHEREAS, the “final decision” requirement has two elements. The first is the
requirement that a claim for benefits be presented to the Commissioner of Social Security. The
second is the requirement that the administrative remedies of the Social Security Administration
(SSA) be exhausted. Abbey v. Sullivan, 978 F.2d 37, 43 (2d Cir. 1992) (citing Bowen v. City of
New York, 476 U.S. 467, 483 (1986)). To exhaust the administrative review process, a plaintiff
must: (1) receive an initial determination concerning the computation of benefits; (2) seek
reconsideration; (3) request a hearing before an administrative law judge (ALJ); and (4) request
that the Appeals Council review the ALJ’s decision. 42 U.S.C. § 405(g); 20 C.F.R.
§ 404.900(a)(1)-(5). Once the Appeals Council issues a final decision, the plaintiff may seek
review of it in a federal district court 1;
WHEREAS, a plaintiff’s failure to exhaust may be excused, either by the Commissioner
or, under limited circumstances, by the courts. City of New York v. Heckler, 742 F.2d 729, 736
(2d Cir. 1984). But “exhaustion is the rule, waiver the exception.” Abbey, 978 F.2d at 44. Courts
look to the following factors to excuse failure to exhaust: “(1) that the claim is collateral to a
demand for benefits; (2) that exhaustion would be futile; and (3) that plaintiff[] would suffer
irreparable harm if required to exhaust administrative remedies.” Pavano v. Shalala, 95 F.3d 147,
150 (2d Cir. 1996) (citing Abbey, 978 F.2d at 44);
WHEREAS, it is not clear from Plaintiff’s complaint that Plaintiff has exhausted
administrative remedies or received a final decision from the Commissioner of Social Security

1

“[I]f . . . the [Appeals] Council denies the request for review, the ALJ’s opinion becomes the
final decision.” Sims v. Apfel, 530 U.S. 103, 107 (2000). “If a claimant fails to request review
from the Council, there is no final decision and, as a result, no judicial review in most cases.” Id.

2

regarding her claims for benefits. Plaintiff also does not set forth facts demonstrating that any
failure to exhaust should be excused. Because Plaintiff does not allege facts showing that this
Court has jurisdiction under § 405(g) to hear her claims, her complaint cannot proceed at this
time;
WHEREAS, Second Circuit precedent is clear that “[a] pro se complaint should not [be]
dismiss[ed] without [the Court’s] granting leave to amend at least once when a liberal reading of
the complaint gives any indication that a valid claim might be stated.” Dolan v. Connolly, 794
F.3d 290, 295 (2d Cir. 2015) (quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)
(internal quotation marks omitted)). It is hereby
ORDERED that because the nature and viability of Plaintiff’s claims are not clear, the
Court grants Plaintiff leave to amend her complaint to show that she exhausted administrative
remedies with the SSA before filing this action in federal court, or to set forth facts showing
that her failure to exhaust administrative remedies should be excused, consistent with the
standards set forth above.
Using the complaint form for actions brought under 42 U.S.C. § 405(g), Plaintiff must:
provide the date of the ALJ’s decision;
provide the date of the Appeals Council letter;
provide the date she received the Appeals Council letter; and
attach a copy of the Appeals Council letter to her amended complaint.
If Plaintiff has not exhausted her administrative remedies, she must include facts showing
that her failure to exhaust her administrative remedies should be excused. Because Plaintiff’s
amended complaint will completely replace, not supplement, the original complaint, any facts or
claims that Plaintiff wishes to maintain must be included in the amended complaint.

3

Plaintiff must submit the amended complaint to this Court’s Pro Se Intake Unit within
sixty days of the date of this order, caption the document as an “Amended Complaint,” and label
the document with docket number 20 Civ. 5991. An Amended Social Security Complaint form is
attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the
time allowed and cannot show good cause to excuse such failure, the complaint will be dismissed
for failure to state a claim upon which relief may be granted.
The Court certifies under 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 an
appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant
demonstrates good faith when he seeks review of a nonfrivolous issue).
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on
the docket.

SO ORDERED.
Dated:

August 7, 2020
New York, New York

4

U NITED S TATES D ISTRICT C OURT
S OUTHERN D ISTRICT OF N EW Y ORK

Write your full name.

_____CV_______________
Include case number only if one has been
assigned.

-againstCOMMISSIONER OF SOCIAL SECURITY
AMENDED

COMPLAINT FOR JUDICIAL REVIEW OF A FINAL DECISION OF THE
COMMISSIONER OF SOCIAL SECURITY
The plaintiff respectfully alleges:
1. This is an action under section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), or
section 1631(c)(3) of the Social Security Act, 42 U.S.C. § 1383(c)(3), for review of a final
decision of the Commissioner of Social Security.
2. This case is properly brought in the Southern District of New York because the
plaintiff is a resident of the county of
and the State of
or (optional)
has a principal place of business in the county of
and the State of
3. The plaintiff’s social security number is
4. The defendant is the Commissioner of the Social Security Administration and has full
power and responsibility over Social Security and Supplemental Security Income
benefit determinations under the Social Security Act.
5. The Social Security Administration issued an unfavorable decision regarding the
plaintiff’s application for, or eligibility to receive, benefits under Title XVI of the Social

Rev. 3/22/18

Security Act (SSI - Supplemental Security Income) or Title II of the Social Security Act
(Disability Insurance, Retirement, or Survivors benefits).
6. The plaintiff requested a hearing before an Administrative Law Judge, a hearing was
held, and the Administrative Law Judge issued a decision denying the plaintiff’s
claim, by decision dated (date of Administrative Law Judge decision)
7. The plaintiff requested a review, and the Appeals Council denied the plaintiff’s
request, or otherwise issued an unfavorable decision, on
, making the Administrative
(date of Appeals Council letter)
Law Judge’s decision the “final decision” of the Commissioner, subject to judicial
review under 42 U.S.C. § 405(g) or § 1383(c)(3).
8. The plaintiff received the letter from the Appeals Council on
(date of receipt of letter)

IMPORTANT
Please attach a copy of the Appeal Council’s letter to this complaint.
You may file this complaint even if you do not have the Appeals Council letter or cannot answer
all of the questions, but you may be required later to provide the missing information.
9. The Commissioner’s decision was not supported by substantial evidence in the
record, or was based on legal error.
WHEREFORE, the plaintiff respectfully requests that the Court:
a) direct the defendant to appear before the Court;
b) order the defendant to submit a certified copy of the administrative record,
including the evidence upon which the findings and decisions complained of are
based;
c) upon such record, modify or reverse the decision of the defendant and grant the
plaintiff maximum monthly Social Security benefits or Supplemental Security
Income benefits as allowable under the Social Security Act; and
d) grant such other relief as may be just and proper.

Page 2

PLAINTIFF’S CERTIFICATION
By signing below, I certify to the best of my knowledge, information, and belief that: (1) the
complaint is not being presented for an improper purpose (such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported
by existing law or by a nonfrivolous argument to change existing law; (3) the factual
contentions have evidentiary support; and (4) the complaint otherwise complies with the
requirements of Federal Rule of Civil Procedure 11.
I agree to provide the Clerk's Office with any changes to my address. I understand that my
failure to keep a current address on file with the Clerk’s Office may result in the dismissal
of my case.
You must sign and date the complaint. Attach additional pages if necessary. You must also either
pay the filing fee or submit an application to proceed without prepayment of fees.
Dated

Plaintiff’s Signature

First Name

Middle Initial

Last Name

Plaintiff’s Address
County, City
Telephone Number

State

Zip Code
Email Address (if available)

I have read the attached Pro Se (Nonprisoner) Consent to Receive Documents
Electronically:
☐ Yes

☐ No

If you do consent to receive documents electronically, submit the completed form with your
complaint. If you do not consent, please do not attach the form.

Page 3

United States District Court
Southern District of New York

Pro Se (Nonprisoner) Consent to Receive Documents Electronically

Parties who are not represented by an attorney and are not currently incarcerated may
choose to receive documents in their cases electronically (by e-mail) instead of by regular
mail. Receiving documents by regular mail is still an option, but if you would rather receive
them only electronically, you must do the following:
1. Sign up for a PACER login and password by contacting PACER 1 at
www.pacer.uscourts.gov or 1-800-676-6856;
2. Complete and sign this form.

If you consent to receive documents electronically, you will receive a Notice of Electronic
Filing by e-mail each time a document is filed in your case. After receiving the notice, you
are permitted one “free look” at the document by clicking on the hyperlinked document
number in the e-mail. 2 Once you click the hyperlink and access the document, you may not
be able to access the document for free again. After 15 days, the hyperlink will no longer
provide free access. Any time that the hyperlink is accessed after the first “free look” or the
15 days, you will be asked for a PACER login and may be charged to view the document. For
this reason, you should print or save the document during the “free look” to avoid future
charges.
Under Rule 5 of the Federal Rules of Civil Procedure, Local Civil Rule 5.2, and the Court’s
Electronic Case Filing Rules & Instructions, documents may be served by electronic means.
If you register for electronic service:

IMPORTANT NOTICE

1. You will no longer receive documents in the mail;

2. If you do not view and download your documents during your “free look” and
within 15 days of when the court sends the e-mail notice, you will be charged for
looking at the documents;
3. This service does not allow you to electronically file your documents;
4. It will be your duty to regularly review the docket sheet of the case. 3

Public Access to Court Electronic Records (PACER) (www.pacer.uscourts.gov) is an electronic public access service that
allows users to obtain case and docket information from federal appellate, district, and bankruptcy courts, and the PACER
Case Locator over the internet.
1

You must review the Court’s actual order, decree, or judgment and not rely on the description in the email notice alone.
See ECF Rule 4.3

2

The docket sheet is the official record of all filings in a case. You can view the docket sheet, including images of
electronically filed documents, using PACER or you can use one of the public access computers available in the Clerk’s
Office at the Court.

3

500 PEARL STREET | NEW YORK, NY 10007
300 QUARROPAS STREET | WHITE PLAINS, NY 10601

rev. 2/9/15

PRO SE INTAKE UNIT: 212-805-0175

I hereby consent to receive electronic service of notices and documents in my case(s) listed below. I
affirm that:

CONSENT TO ELECTRONIC SERVICE

1. I have regular access to my e-mail account and to the internet and will check regularly for
Notices of Electronic Filing;
2. I have established a PACER account;

3. I understand that electronic service is service under Rule 5 of the Federal Rules of Civil
Procedure and Rule 5.2 of the Local Civil Rules, and that I will no longer receive paper
copies of case filings, including motions, decisions, orders, and other documents;

4. I will promptly notify the Court if there is any change in my personal data, such as name,
address, or e-mail address, or if I wish to cancel this consent to electronic service;

5. I understand that I must regularly review the docket sheet of my case so that I do not miss a
filing; and

6. I understand that this consent applies only to the cases listed below and that if I file
additional cases in which I would like to receive electronic service of notices of documents, I
must file consent forms for those cases.
Note: This consent will apply to all cases that you have filed in this court, so please list all of
your pending and terminated cases. For each case, include the case name and docket number
(for example, John Doe v. New City, 10-CV-01234).

Civil case(s) filed in the Southern District of New York:

Name (Last, First, MI)
Address

Telephone Number
Date

Pro Se Intake Unit (Room 200)
500 Pearl Street
New York, NY 10007
Return completed form to:

City

State

E-mail Address
Signature

Zip Code

To all individuals who have Social Security or
Supplemental Security Income cases:
The New York County Lawyers Association has provided free
legal assistance to thousands of people who cannot afford
lawyers. If you cannot afford a lawyer, you may qualify for
free legal representation in your appeal in the Southern
District of New York.
If you would like to consult with a lawyer, please call Carolyn
A. Kubitschek, at [phone]. 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 in their federal appeals.
Sincerely,

Anthe Maria Bova
General Counsel & Director of Pro Bono Programs