Calderon v. Commissioner of Social Security

Filing 6

ORDER TO AMEND: Plaintiff is granted leave to file an amended complaint that complies 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 ord er, caption the document as an "Amended Complaint," and label the document with docket number 22-CV-5282 (LTS). An Amended Social Security Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails t o comply within the time allowed and cannot show good cause to excuse such failure, the Court will dismiss the action for failure to exhaust his administrative remedies, without prejudice to file a new action after Plaintiff has exhausted The Cour t certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP 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). (Signed by Judge Laura Taylor Swain on 8/1/2022) (sac)

Case 1:22-cv-05282-LTS Document 6 Filed 08/01/22 Page 1 of 9

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JASON CALDERON,
Plaintiff,
-againstCOMMISSIONER OF SOCIAL SECURITY,

22-CV-5282 (LTS)
ORDER TO AMEND

Defendant.
LAURA TAYLOR SWAIN, Chief United States District Judge:
Plaintiff, Jason Calderon, a Bronx, New York, resident appearing pro se, brings this
action under 42 U.S.C. § 405(g), seeking judicial review of a final administrative decision of the
Commissioner of Social Security. By order dated July 7, 2022, the Court granted Plaintiff’s
request to proceed in forma pauperis (IFP), that is, without prepayment of fees. For the reasons
set forth below, the Court grants Plaintiff leave to file an amended complaint within sixty days of
the date of this order.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of the complaint, 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). The Court must also
dismiss a complaint when the Court lacks subject matter jurisdiction of the claims raised. See
Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is
obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009),
and interpret them 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)

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(emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted),
has its limits – to state a claim, pro se pleadings still must comply with Rule 8 of the Federal
Rules of Civil Procedure, which requires a complaint to make a short and plain statement
showing that the pleader is entitled to relief.
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to include enough
facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow
the Court to draw the inference that the defendant is liable for the alleged misconduct. In
reviewing the complaint, the Court must accept all well-pleaded factual allegations as true.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true
“[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal
conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded
factual allegations, the Court must determine whether those facts make it plausible – not merely
possible – that the pleader is entitled to relief. Id.
BACKGROUND
Plaintiff uses the Court’s complaint form for actions brought under 42 U.S.C. § 405(g).
He asserts that the Appeals Council letter is dated “3-21-2020,” and that he received the letter on
“March 21, 2020.” (ECF No. 1 at 2.) The March 21, 2020, date coincides with the date on the
attachment to Plaintiff’s complaint titled, “Notice of Disapproved Claim,” which is not an
Appeals Council letter. (Id. at 7.) Plaintiff does not include a copy of the Appeals Council’s
letter, as directed on the complaint form.
DISCUSSION
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]
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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
Section 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.’”).
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 (“Commissioner”). 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). When the Appeals Council issues a final decision, the plaintiff’s
administrative remedies have been exhausted and the plaintiff may seek review of that decision
in a federal district court. 1
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

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.
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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).
Plaintiff’s complaint suggests that he did not exhaust his administrative remedies or
receive a final decision from the Commissioner regarding his 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 his
claims, his complaint cannot proceed at this time.
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)). Because the nature and viability of Plaintiff’s claims are not clear, the
Court grants Plaintiff leave to amend his complaint to show that he exhausted his administrative
remedies with the SSA before filing this action in federal court, or to set forth facts showing that
his failure to exhaust administrative remedies should be excused, consistent with the standards
set forth above.
LEAVE TO AMEND
Plaintiff is granted leave to amend his complaint to detail his claim. 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 he received the Appeals Council letter; and
attach a copy of the Appeals Council letter to his amended complaint.
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If Plaintiff has not exhausted his administrative remedies, he must include facts showing
that his failure to exhaust his 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.
CONCLUSION
Plaintiff is granted leave to file an amended complaint that complies 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 22-CV-5282 (LTS). 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 Court
will dismiss the action for failure to exhaust his administrative remedies, without prejudice to file
a new action after Plaintiff has exhausted
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 IFP 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).
SO ORDERED.
Dated:

August 1, 2022
New York, New York
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
Chief United States District Judge

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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. 4/12/21

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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 Appeals 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.

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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

First Name

Plaintiff’s Signature

Middle Initial

Last Name

Plaintiff’s Address
County, City
Telephone Number

State

Zip Code
Email Address (if available)

Please see the attached Pro Se (Nonprisoner) Consent to Receive Documents Electronically.
If you consent to receive documents electronically, submit the completed form with your
complaint. If you do not consent, please do not attach the form.

Click Here to Save

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Case 1:22-cv-05282-LTS Document 6 Filed 08/01/22 Page 9 of 9

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