Garcia v. Social Security Administration

Filing 9

ORDER: The Court grants Plaintiff's request for an extension of time to file an amended complaint. Plaintiff is directed to submit an amended complaint within 30 days of the date of this order. No further extensions will 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). SO ORDERED. (Signed by Judge Laura Taylor Swain on 11/16/22) (rdz)

Case 1:22-cv-07170-LTS Document 9 Filed 11/16/22 Page 1 of 8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SAMANTHA GARCIA, ON BEHALF OF
S.S.,
Plaintiff,

22-CV-7170 (LTS)

-against-

ORDER

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
LAURA TAYLOR SWAIN, Chief United States District Judge:
Plaintiff Samantha Garcia, who is appearing pro se, brings this action on behalf of her
minor child S.S. By order dated September 17, 2022, the Court granted Plaintiff 60 days’ leave to
file an amended complaint showing that she exhausted her administrative remedies with the
Social Security Administration (“SSA”) before filing this action in federal court, or to allege
facts showing that her failure to exhaust administrative remedies should be excused. (ECF 5.) On
October 24, 2022, Plaintiff submitted a letter seeking an extension of time to file an amended
complaint because she was waiting on the SSA to send her copies of the “final order & decision”
in her son’s case. (ECF 6.) By order dated October 25, 2022, the Court granted Plaintiff a 30-day
extension to file an amended complaint. (ECF 7.)
On November 14, 2022, Plaintiff filed another letter seeking an extension of time to file
an amended complaint. (ECF 8.) In her letter, Plaintiff states that she is “having the hardest time
ever with the SSA sending [her] copies of [her] son[’s] documents.” (ECF 8.) She also states that
she has been “appealing [her] son[’s] case since [O]ct of 2017.” (Id.)
The Court grants Plaintiff’s request for an extension of time. The Court notes, however,
that Plaintiff does not need to provide copies of documents in her son’s case to satisfy the Court’s
instructions in the order to amend.

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As stated in the order to amend, 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). 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 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
In its order to amend, the Court determined that the complaint’s sole allegation regarding
exhaustion – that Plaintiff “has been doing appeals since 2017” (ECF 2, at 3) – was not sufficient
to show that Plaintiff has exhausted her administrative remedies or received a final decision from
the Commissioner regarding her claims for benefits. Accordingly, the Court directed Plaintiff to
file an amended complaint alleging facts suggesting that she has exhausted her administrative
remedies. Attaching copies of the decisions in her son’s case is one way that Plaintiff may show
exhaustion, but it is not the only way. Alternatively, Plaintiff could simply provide the Court with

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

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the date on which the ALJ denied her claims, the date the Appeals Council affirmed the ALJ’s
decision, and/or the date on which Plaintiff received the Appeals Council’s letter, even if the
dates are approximate. Plaintiff may also be able to demonstrate that she exhausted her
administrative remedies by alleging additional facts describing what she means when she says
that she has been appealing her case “since 2017.” For example, Plaintiff should allege whether
she pursued the administrative review and appeals processes described above. If Plaintiff has not
exhausted her administrative remedies, she should allege any facts demonstrating that the failure
to exhaust should be excused.
Plaintiff must submit the amended complaint within 30 days of the date of this order. If
Plaintiff fails to comply within the time allowed and cannot show good cause to excuse such
failure, the Court will dismiss the action without prejudice to Plaintiff filing a new action after
she has exhausted her administrative remedies. No further extensions will be granted.
For Plaintiff’s convenience, an Amended Social Security Complaint form is attached to
this order. Plaintiff may wish to consider contacting the New York Legal Assistance Group’s
(NYLAG) Legal Clinic for Pro Se Litigants in the Southern District of New York, which is a free
legal clinic staffed by attorneys and paralegals to assist those who are representing themselves in
civil lawsuits in this court. A copy of the flyer with details of the clinic is attached to this order.
The clinic is currently available only by telephone.
CONCLUSION
The Court grants Plaintiff’s request for an extension of time to file an amended
complaint. Plaintiff is directed to submit an amended complaint within 30 days of the date of this
order. No further extensions will 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
3

Case 1:22-cv-07170-LTS Document 9 Filed 11/16/22 Page 4 of 8

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:

November 16, 2022
New York, New York
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
Chief United States District Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
____________________________________________X
:
___________________________________________ :
(Your Name & Social Security Number)
:
AMENDED
:
Plaintiff,
:
COMPLAINT
:
-against: ____ Civ. _________ (____)
:
COMMISSIONER OF SOCIAL SECURITY,
:
:
Defendant.
:
____________________________________________X
Plaintiff respectfully alleges:
1. This is an action seeking court review of the decision of the administrative law
judge pursuant to section 205(g) and/or section 1631(c)(3) of the Social Security Act, as
amended, 42 U.S.C. § 405(g) and/or § 1383(c)(3).
2. Plaintiff resides at_________________________________________________
________________________________________________________________________
3. Defendant is the Commissioner of Social Security.
4. Plaintiff became entitled to receive disability insurance benefits and/or
Supplemental Security Income benefits because of the following disability____________
________________________________________________________________________
________________________________________________________________________
5. The disability began on this date _____________________.

Case 1:22-cv-07170-LTS Document 9 Filed 11/16/22 Page 6 of 8

6. That the Bureau of Disability Insurance of the Social Security Administration
disallowed plaintiff’s application upon the ground that plaintiff failed to establish a period
of disability and/or upon the ground that plaintiff did not have an impairment or combination
of impairments of the severity prescribed by the pertinent provisions of the Social Security
Act to establish a period of disability or to allow disability insurance benefits or
Supplemental Security Income benefits.
7. Subsequent thereto, plaintiff requested a hearing, and on _____________[date of
hearing], a hearing was held which resulted in a denial of plaintiff’s claim on
_____________ [date of administrative law judge decision].
8. Thereafter, plaintiff requested review by the Appeals Council, and after its
consideration, the decision of the administrative law judge was affirmed on
_______________ [date of Appeals Council letter].

Plaintiff received this letter on

_________________, thereby making the administrative law judge’s decision the “final
decision” of the Commissioner, subject to judicial review pursuant to 42 U.S.C. §
405(g)and/or §1383(c)(3). IMPORTANT: ATTACH A COPY OF THE APPEALS
COUNCIL LETTER TO THE BACK OF THIS COMPLAINT.
9. The decision of the administrative law judge was erroneous, not supported by
substantial evidence on the record, and/or contrary to the law.
WHEREFORE, plaintiff respectfully prays that:
(a)

A summons be issued directing defendant to appear before the Court;

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(b)

Defendant be ordered to submit a certified copy of the transcript of the record,

including the evidence upon which the findings and decision complained of are based;
(c)

Upon such record, this Court should modify the decision of the defendant to

grant monthly maximum insurance and/or Supplemental Security Income benefits to the
plaintiff, retroactive to the date of the initial disability, or in the alternative, remand to the
Commissioner of Social Security for reconsideration of the evidence; and,
(d)

For such other and further relief as may be just and proper.

Dated: __________________

______________________________
Plaintiff’s Signature
______________________________
Area Code and Telephone

Rev.11/2010

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Notice For
Pro Se Litigants
As a public health precaution, the New York
Legal Assistance Group’s Legal Clinic for Pro Se
Litigants has temporarily suspended all inperson client meetings as of Tuesday, March 17,
2020.

Limited scope legal assistance will continue to
be provided, but only by appointment and only
over the phone. During this time, we cannot
assist walk-in visitors to the clinic.

If you need the assistance of the clinic, please
call 212-659-6190 and leave a message,
including your telephone number, and someone
will get back to you as soon as possible. If you do
not leave a message with your telephone
number, we cannot call you back.

Please be patient because our responses to your
messages may be delayed while we transition to
phone appointments.