Byrd v. Colvin
Filing
14
-CLERK TO FOLLOW UP-DECISION and ORDER granting 11 Defendant's Motion to Dismiss the Complaint for Lack of Jurisdiction. The Clerk of the Court is directed to close this case and to send a copy of this Decision and Order to the pro se plaintiff. Signed by Hon. Michael A. Telesca on 10/17/16. (AFB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
VICKIE DIANNE BYRD,
Plaintiff,
DECISION AND ORDER
No. 6:16-cv-06299-MAT
-vsCAROLYN W. COLVIN, Acting Commissioner
Of Social Security,
Defendant.
BACKGROUND
Proceeding pro se, Vickie Dianne Byrd (“Plaintiff”) instituted
this action alleging that she was denied a right to a hearing on
her claim, under Title XVI of the Social Security Act (“the Act”),
for Supplemental Security Income (“SSI”) benefits. Presently before
the Court is the Motion to Dismiss the Complaint filed by the
Acting Commissioner of Social Security (“the Commissioner” or
“Defendant”).
PROCEDURAL STATUS
When Plaintiff filed an application for disability insurance
benefits (“DIB”) under Title II of the Act on July 22, 2014,
alleging disability beginning March 30, 2012, Plaintiff indicated
that she did not wish to apply for SSI benefits under Title XVI of
the Act. After Plaintiff’s application for DIB benefits was denied
at the initial level, Administrative Law Judge John P. Costello
(“the ALJ”) held a hearing, at Plaintiff’s request, on her DIB
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claim on May 27, 2015, in Rochester, New York. Following the
hearing, the ALJ issued a partially favorable decision on June 25,
2015, finding that, while Plaintiff was not disabled from March 30,
2012, her alleged onset date, through August 22, 2014, she became
disabled as of August 23, 2014, and entitled to DIB.
In August 2015, the Commissioner notified Plaintiff that she
would receive a lump sum payment of $4,460.25 for past due DIB
benefits from February 2015, through July 2015. Plaintiff also was
informed that in September 2015, she would begin receiving a
monthly payment of $939.00.
Plaintiff filed a request for reconsideration on August 12,
2015, and a request for review of the ALJ’s hearing decision on
August 16, 2015. The Appeals Council denied Plaintiff’s request for
review on March 14, 2016.
On August 20, 2015, Plaintiff spoke to a representative at the
Social
Security
Administration
(“the
SSA”)
regarding
her
eligibility for SSI. Following that conversation, the SSA sent
Plaintiff
a
“Notice
of
Important
Information”
(“the
Notice”)
stating that it had made an informal decision that she was not
eligible for SSI. The Notice also informed Plaintiff that, should
she desire a formal determination about her eligibility for SSI,
she could file an application for SSI.
Plaintiff then filed an SSI application on October 19, 2015,
in which she disclosed that she received a monthly DIB payment of
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$939.00. Plaintiff filed additional SSI applications on October 30,
2015, and December 16, 2015. The SSA denied these applications at
the
initial
level
because
Plaintiff’s
income
exceeded
the
eligibility requirements for SSI.
Plaintiff filed a request for reconsideration of her SSI claim
on February 8, 2016. The SSA responded to Plaintiff’s request for
reconsideration by letter dated February 12, 2016, stating that the
SSA was “making every effort to hold [a] hearing as soon as [it]
can.” Declaration of Cristina Prelle (“Prelle Decl.”) ¶ 13; Exhibit
(“Ex.”) N.
Plaintiff then commenced this pro se action on May 12, 2016.
In her Complaint, Plaintiff states that she was denied the lawful
right to a hearing in connection with her application for SSI
benefits.
The Commissioner has moved to dismiss the Complaint based on
the lack of
jurisdiction pursuant
to
Rule
12(b)(1)
and Rule
12(b)(6) of the Federal Rules of Civil Procedure. The Commissioner
notes that although Plaintiff’s SSI applications were initially
denied, she has not yet had a hearing on her SSI claim. Therefore,
there
has
been
no
“final
decision”
of
the
Commissioner
on
Plaintiff’s SSI claim, as required by 42 U.S.C. § 405(g), leaving
this Court without jurisdiction over this action. Plaintiff has
filed a one-page document that has been docketed as response to the
Commissioner’s
motion.
For
the
reasons
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discussed
herein,
the
Commissioner’s motion is granted.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) allows defendants to
challenge the court’s subject matter jurisdiction by means of a
motion to dismiss. In reviewing a motion to dismiss under Rule
12(b)(1),
courts
must
“accept
as
true
all
material
factual
allegations in the complaint,” Shipping Fin. Serv. Corp. v. Drakos,
140 F.3d 129, 131 (2d Cir.1998) (citation omitted), but must
refrain from “drawing from the pleadings inferences favorable to
the party asserting [jurisdiction],” APWU v. Potter, 343 F.3d 619,
623
(2d
subject
Cir.2003)
matter
(citation
jurisdiction
omitted).
has
the
“A
plaintiff
burden
of
asserting
proving
by
a
preponderance of the evidence that it exists.” Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000).
DISCUSSION
Judicial review of final decisions on claims arising under
Title II or Title XVI of the Act is provided for, and limited by,
sections 205(g) and (h) of the Act as follows:
(g) Any individual, after any final decision of the
Commissioner of Social Security made after a hearing to
which he was a party, irrespective of the amount in
controversy, may obtain a review of such decision by a
civil action commenced within sixty days after the
mailing to him of notice of such decision or within such
further time as the Commissioner of Social Security may
allow. . . .
(h) The findings and decision of the Commissioner of
Social Security after a hearing shall be binding upon all
individuals who were parties to such hearing. No findings
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of fact or decision of the Commissioner of Social
Security shall be reviewed by any person, tribunal, or
governmental agency except as herein provided. No action
against the United States, the Secretary, or any officer
or employee thereof shall be brought under section 1331
or 1346 of Title 28 to recover on any claims arising
under this title.
42 U.S.C. §§ 405(g) and (h). The Act does not define the term
“final decision,” but grants authority to the Commissioner to
explicate
it
by
regulation.
See
42
U.S.C.
§
405(a)
(“The
Commissioner of Social Security shall have full power and authority
to make rules and regulations and to establish procedures, not
inconsistent with the provisions of this subchapter, which are
necessary or appropriate to carry out such provisions . . . .”).
For an determination by the Commissioner to be a “final decision”
under the Act, the applicant must seek review before the Appeals
Council. See 20 C.F.R. § 404.900(a)(5) (“When [the claimant] ha[s]
completed the steps of the administrative review process listed in
paragraphs (a)(1) through (a)(4) [i.e., requesting that the Appeals
Council review the decision] of this section, [the Commissioner]
will have made [her] final decision.”). Subject to exceptions not
applicable here, “[i]f a claimant fails to request review from the
Council, there is no final decision and, as a result, no judicial
review in most cases.” Sims v. Apfel, 530 U.S. 103, 107 (2000)
(citations omitted).
The procedural history of this matter at the administrative
level is set forth in detail in the Declaration of Cristina Prelle
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(Dkt #11-2) and the Exhibits attached thereto. The evidence, which
has not been controverted by Plaintiff, shows that Plaintiff has
not obtained a decision by the Appeals Council or a notice from the
Appeals Council denying a request for review on her SSI claim. See
Though Plaintiff has sought reconsideration of the denial of her
SSI claim, and a hearing on that claim, a hearing date has not been
set.
The
Commissioner
has
informed
Plaintiff
that
she
was
attempting to set a hearing date as soon as practicable. Because
Plaintiff has not received a “final decision” on her SSI claim, she
has not exhausted her administrative remedies, and the Court lacks
jurisdiction over this action. See, e.g., Fuentes v. Comm’r of Soc.
Sec., No. 10-CV-146 NGG, 2011 WL 63496, at *1 (E.D.N.Y. Jan. 7,
2011).
The Supreme Court has held that courts may excuse a claimant
from exhausting her administrative remedies “in certain special
cases,” Heckler v. Reinger, 466 U.S. 602, 618 (1984), such as where
the
claimant
“asserted
a
procedural
challenge
to
the
[Commissioner]’s denial of a pretermination hearing, a claim that
was wholly ‘collateral’ to his claim for benefits, and where he
made a colorable showing that his injury could not be remedied by
the
retroactive
payment
of
benefits
after
exhaustion
of
his
administrative remedies.” Id. The Court recognizes that Plaintiff
is anxious for a hearing date to be set, and for the process to
move more quickly than it has to date, but there is no suggestion
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that Plaintiff has been, or will be, denied her request for a
administrative hearing. In short, Plaintiff has not demonstrated
that this is a “special case” in which the failure to exhaust may
be excused.
CONCLUSION
For the reasons discussed above, the Commissioner’s Motion to
Dismiss is granted, and the Complaint is dismissed. The Clerk of
Court is directed to close this case.
SO ORDERED.
S/ Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
October 17, 2016
Rochester, New York.
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