The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
REPORT-RECOMMENDATION AND ORDER*fn1 Plaintiff Ruth Chanecka ("Chanecka") brings this action on behalf of deceased claimant Mary Dorton ("Dorton") pursuant to 42 U.S.C. § 405(g) seeking review of a decision by the Commissioner of Social Security ("Commissioner") denying Dorton's claim for underpayment of benefits for a thirty-six month period. Compl. (Dkt. No. 1).
The Commissioner moves for dismissal pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. Dkt. No. 6. Dofton has failed to respond. For the reasons which follow, it is recommended that the Commissioner's motion be granted and the complaint dismissed.
On April 21, 1998, Dofton filed an application for disability insurance benefits pursuant to the Social Security Act, 42 U.S.C. § 401 et seq, which was subsequently awarded. Dkt. No. 1-2 at 3. In 2004, Administrative Law Judge ("ALJ") Tarrant held that "as of 2000, [Dofton] had income and resources in excess of the allowable amount and became ineligible for continuation of supplemental security income [("SSI")] for a 36 month period ending June 2003." Dkt. No. 1-2 at 5. On January 12, 2007, ALJ Tarrant's decision was vacated and remanded for additional proceedings. Dkt. No. 1-3; Dkt. No. 6-1 at 1-6. Dofton died on October 12, 2007, prior to the supplemental hearing being completed. Dkt. No. 1-4 at 3; Dkt. No. 6-1 at 8, 15.
On October 10, 2008, a hearing was convened and Dofton's representative appeared on her behalf. Dkt. No. 1-4 at 3; Dkt. No. 6-1 at 8, 15; Herbst Decl. (Dkt. No. 6-1) ¶ 3(a). ALJ Lischak ordered Dofton's claims and hearing dismissed because, in the event a "claimant dies while [a] request for hearing is pending," Title XVI benefits can only be paid to specific parties. Dkt. No. 1-4 at 3-4; Dkt. No. 6-1 at 8-9, 15-16. As "[t]here [we]re no other parties to th[e] proceeding and . . . no information showing that a survivor who may be paid benefits under 20 CFR 416.542(b) wishe[d] to pursue the request for hearing," there was no opportunity for anyone to collect the alleged underpayments which Dofton claimed. Dkt. No. 1-4 at 4; Dkt. No. 6-1 at 9, 16. Accordingly, "the issue . . . becomes moot." Dkt. No. 1-4 at 4; Dkt. No. 6-1 at 9, 16; Herbst Decl. 3(a).
On December 8, 2008, Chencka*fn2 filed a Request for Review of ALJ Lischak's order dismissing Dofton's claims. Herbst Decl. ¶ 3(c); Dkt. No. 6-1 at 20-24. On September 16, 2009, the Appeals Council denied the request, affirming the decision and reasoning because, pursuant to 20 C.F.R. § 416.542(b), underpayment can only be paid to a deceased recipient's eligible surviving spouse or ineligible spouse who was living with the claimant within six months immediately preceding the month of death [and] . . . no further benefits may be paid to the estate of any underpaid recipient or any other survivor that is not the claimant's eligible or ineligible spouse.
Dkt. No. 1-5 at 2; Dkt. No. 6-1 at 26. As Chanecka was not a surviving spouse, she was ineligible to receive any sort of underpayment, and the dismissal "was in accordance with existing policy." Dkt. No. 1-5 at 2; Dkt. No. 6-1 at 26. This action followed.
"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) (citing Fed. R. Civ. P. 12(b)(1)). "If a controversy is moot, then the Court lacks subject matter jurisdiction over the action." Ward v. Bank of New York, 455 F. Supp. 2d 262, 266 (S.D.N.Y. 2006) (citations omitted). "Subject-matter jurisdiction cannot be forfeited or waived and should be considered when fairly in doubt." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1945 (2009) (citations omitted).
The United States, as a sovereign entity, is immune from suit pursuant to the terms of the Eleventh Amendment unless it consents to suit and the consent includes the jurisdiction of the court presiding over the suit. Makarova, 201 F.3d at 113 (citations omitted). "The doctrine of sovereign immunity is jurisdictional . . . and therefore to prevail, the plaintiff bears the burden of establishing that h[is] claims fall within the applicable waiver." Id. (citations omitted). In the case at bar, the express Congressional consent to suit can be found at 42 U.S.C. § 405(g), which authorizes judicial review of cases arising under Title XVI of the Social Security Act. Section 405(g) provides:
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. 42 U.S.C. § 405(g). It is clear from the statute that judicial review is only permitted in accordance with the terms therein:
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 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 Commissioner of Social Security, or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter. 42 U.S.C. § 405(h).
Thus, the waiver of subject matter jurisdiction is clearly limited to agency action which is a "final decision of the Commissioner . . . made after a hearing . . . ." 42 U.S.C. § 405(g). In order to satisfy the administrative review process, making judicial review possible, a claimant must follow the process outlined in 20 C.F.R. § 404.900(a).*fn3
See also Califano v. Sanders, 430 U.S. 99, 102 (1977) ("The Act and regulations thus create an orderly administrative mechanism, with district court review of the final decision of the [Commissioner]. . . ."). If the claimant fails to pursue these administrative rights, the administrative determination becomes binding. 20 C.F.R. §§ 404.905, 404.921, 404.955, 404.981. Ordinarily, a claimant must exercise his rights under the administrative appeals structure within a specified time frame. 20 C.F.R. § 404.900(a). However, ...