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A Nastasia K Atsoulakis v. M Ichael J. A Strue


August 31, 2011


The opinion of the court was delivered by: Joseph F. Bianco, District Judge


claims for the reasons set forth herein. In the alternative, the Court concludes that, Anastasia Katsoulakis (the "plaintiff" or even if there was subject matter jurisdiction "Katsoulakis") commenced this action over plaintiff's claims, she has failed to state pursuant to the Social Security Act, 42 a claim for which relief may be granted.


U.S.C. § 405(g), challenging the decision of defendant Commissioner of the Social Security Administration (the "Commissioner" or "defendant") denying On July 17, 2006, plaintiff applied for her request for disability benefits and disability benefits. (Decl. of Patrick J. separately bringing a civil suit against Herbst ("Herbst Decl.") Ex. 7 at 2.) Her defendant, which was consolidated with her application for disability benefits was denied challenge to the Commissioner's decision. on September 21, 2006. (Id. Ex. 1 at 3.) On November 16, 2006, the Commissioner Defendant has moved to dismiss the received plaintiff's request for a hearing consolidated case under Rules 12(b)(1) and before an Administrative Law Judge 12(b)(6) of the Federal Rules of Civil ("ALJ"), arguing that the "decision and the Procedure. The Court concludes that it has determination [denying her benefits] is no subject matter jurisdiction over plaintiff's contrary to the evidence and the applicable laws." (Id. Ex. 5.) The hearing was


scheduled for September 24, 2008 before ALJ Brian J. Crawley. (Id. Ex. 7.) On A motion to dismiss for want of subject September 22, 2008, ALJ Crawley received matter jurisdiction under Fed. R. Civ. P. a letter from plaintiff's counsel advising 12(b)(1) "is reviewed under the same "that the above claimant wishes to withdraw standards as a motion to dismiss for failure her Request for Hearing at this time." (Id. to state a claim under Rule 12(b)(6)." See Ex. 8; see also id. Ex. 4 (Kenneth Beskin Coveal v. Consumer Home Mortgage, Inc., appointed as plaintiff's counsel).) On No. 04-CV-4755 (ILG), 2005 U.S. Dist. September 26, 2008, ALJ Crawley LEXIS 25346, at *6 (E.D.N.Y. Oct. 21, dismissed plaintiff's request for a hearing, 2005) (citing Lerner v. Fleet Bank, N.A., 318 noting in his decision that "the initial F.3d 113, 128 (2d Cir. 2003), cert. denied, determination dated September 21, 2006 540 U.S. 1012 (2003)). Further, the court [denying disability benefits] remains in may consider evidence beyond the pleadings effect." (Id. Ex. 1 at 3.) Plaintiff's appeal of to resolve disputed issues of fact regarding that determination was denied by the its jurisdiction. See Flores v. S. Peru Appeals Council on August 20, 2009. (Id. Copper Corp., 414 F.3d 233, 255 n. 30 (2d Ex. 3.) Cir. 2003). "A court presented with a motion to dismiss under both Fed. R. Civ. P.


12(b)(1) and 12(b)(6) must decide the 'jurisdictional question first because a On January 7, 2010, plaintiff filed a disposition of a Rule 12(b)(6) motion is a complaint against the Commissioner decision on the merits, and therefore, an contesting defendant's denial of disability exercise of jurisdiction.'" Coveal, 2005 U.S. benefits. On March 5, 2010, plaintiff filed a Dist. LEXIS, at *7 (quoting Magee v. civil action against the Commissioner for Nassau Cnty. Med. Ctr., 27 F. Supp. 2d 154, monetary damages based upon the denial of 158 (E.D.N.Y. 1998)); see also Rhulen disability benefits. In a March 17, 2010 Agency, Inc. v. Alambama Ins. Guar. Ass'n, Order, this Court consolidated the two 896 F.2d 674, 678 (2d Cir. 1990) (noting complaints into one action. On June 25, that a motion to dismiss for failure to state a 2010, defendant filed a motion to dismiss claim may be decided only after finding the consolidated action. On July 23, 2010, subject matter jurisdiction). the Court received plaintiff's response. The Court also received a letter from plaintiff on In reviewing a motion to dismiss June 15, 2011 regarding her health. The pursuant to Federal Rule of Civil Procedure Court also received various letters from 12(b)(6), the Court must accept the factual plaintiff that do not pertain to the merits of allegations set forth in the complaint as true this suit. The Court has fully considered the and draw all reasonable inferences in favor submissions and arguments of the parties. of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006). "In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must allege a plausible set of facts sufficient 'to raise a right to relief above the speculative Court Sys., No. 10--CV--2144 (JFB)(ETB), level.'" Operating Local 649 Annuity Trust 2010 U.S. Dist. LEXIS 69835, 2010 WL Fund v. Smith Barney Fund Mgmt. LLC, 595 2558624, at *8 (E.D.N.Y. June 17, 2010) F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl. (citing Sealed Plaintiff v. Sealed Defendant, Corp. v. Twombly, 550 U.S. 544, 555 537 F.3d 185, 191 (2d Cir. 2008) and (2007)). This standard does not require McEachin v. McGuinnis, 357 F.3d 197, 200 "heightened fact pleading of specifics, but (2d Cir. 2004)). Nonetheless, even though only enough facts to state a claim to relief the Court construes a pro se complaint that is plausible on its face." Twombly, 550 liberally, the complaint must still "state a U.S. at 570. claim to relief that is plausible on its face" to survive a motion to dismiss. Mancuso v. The Supreme Court recently clarified the Hynes, 379 F. App'x 60, 61 (2d Cir. 2010) appropriate pleading standard in Ashcroft v. (quoting Iqbal, 129 S.Ct. at 1949); see also Iqbal, setting forth a two-pronged approach Harris v. Mills, 572 F.3d 66, 72 (2d Cir. for courts deciding a motion to dismiss. 129 2009) (applying Twombly and Iqbal to pro S.Ct. 1937 (2009). The Court instructed se complaint). district courts to first "identify[ ] pleadings that, because they are no more than IV. DISCUSSION conclusions, are not entitled to the assumption of truth." Id. at 1950. Although Plaintiff's claims against defendant must "legal conclusions can provide the be dismissed because this Court lacks framework of a complaint, they must be jurisdiction to review them. The Court first supported by factual allegations." Id. addresses plaintiff's appeal from the denial Second, if a complaint contains "well- of her disability benefits and subsequently pleaded factual allegations, a court should her civil action for money damages. assume their veracity and then determine whether they plausibly give rise to an A. Legal Framework entitlement to relief." Id. "A claim has facial plausibility when the plaintiff pleads This Court has limited jurisdiction over factual content that allows the court to draw appeals of defendant's decisions regarding the reasonable inference that the defendant disability benefits. Specifically, this Court is liable for the misconduct alleged. The may review "any final decision of the plausibility standard is not akin to a Commissioner of Social Security made after 'probability requirement,' but it asks for a hearing to which [plaintiff] was a party, more than a sheer possibility that a irrespective of the amount in controversy." defendant has acted unlawfully." Id. at 1949 42 U.S.C. § 405(g). However, (internal citations omitted) (quoting and citing Twombly, 550 U.S. at 556--57). [t]he findings and decision of the Commissioner of Social Security

Where, as here, the plaintiff is after a hearing shall be binding upon proceeding pro se, "[c]courts are obliged to all individuals who were parties to construe the [plaintiff's] pleadings . . . such hearing. No findings of fact or liberally." McCluskey v. N.Y. State Unified decision of the Commissioner of Social Security shall be reviewed by administrative determination by the Social any person, tribunal, or Security Administration becomes final. See governmental agency except as 20 C.F.R. §§ 404.900(b), 404.905, 404.921, herein provided. No action against 404.955, 404.981, 422.210. the United States, the Commissioner of Social Security, or any officer or This Court can only review an employee thereof shall be brought . . administrative decision denying disability . to recover on any claim arising benefits where a hearing has been held under this title . . . . unless plaintiff raises a constitutional challenge to the decision. In Sanders, the 42 U.S.C. § 405(h). Supreme Court concluded that because "a petition to reopen a prior final decision may

In order to obtain review of a final be denied without a hearing," it was not decision by the Commissioner, the claimant reviewable absent a "colorable" must follow a four-step administrative constitutional challenge. 430 U.S. at 107-process. Specifically, this includes 09. The Sanders Court noted that section 405(g) "clearly limits judicial review to a

(1) Initial determination. This is a particular type of agency action." Id. at 108. determination we make about your Though Sanders did not specifically deal entitlement . . . to benefits . . . . with a situation where a hearing was

(2) Reconsideration. If you are dismissed, courts have applied Sanders in dissatisfied with an initial that context and this Court agrees with the determination, you may ask us to analysis set forth in those decisions. See, reconsider it. e.g., Milazzo v. Barnhart, No. 05 Civ. 9218

(3) Hearing before an administrative (HB), 2006 WL 2161781, at *1-2 (S.D.N.Y. law judge. If you are dissatisfied Aug. 1, 2006) (concluding that "[d]ismissal with the reconsideration for failure to appear at the hearing does not determination, you may request a constitute a final decision on the merits and hearing before an administrative law consequently cannot be reviewed" under judge. section 405(g), further noting that plaintiff

(4) Appeals Council review. If you "failed to raise a constitutional issue, and are dissatisfied with the decision of therefore cannot obtain judicial review on the administrative law judge, you that basis"); Lesane v. Apfel, No. CV 98-may request that the Appeals 4738 (RJD), 1999 WL 1288940, at *2-3 Council review the decision. (E.D.N.Y. Nov. 17, 1999) (the court could not review ALJ's dismissal of hearing where 20 C.F.R. § 404.900(a). According to the claimant did not appear for the hearing); Supreme Court, this creates "an orderly Plagianos v. Schweiker, 571 F. Supp. 495, administrative mechanism, with district 497 (S.D.N.Y. 1983) ("[W]hen there was no court review of the final decision of the hearing and determination of the merits by a [Commissioner]." Califano v. Sanders, 430 final decision, there is nothing for the court U.S. 99, 102 (1977). If an administrative to review . . . an application for judicial appeal is not pursued by the claimant, the review fails to state a claim on which relief may be granted."). See also Matos-Cruz v. claim against defendant. As a result, this Comm'r of Soc. Sec., 187 F.3d 622, 622 (1st Court lacks subject matter jurisdiction over Cir. 1998) (unpublished) (court could not the dispute. review the ALJ's decision to dismiss the hearing at plaintiff's request); Brandyburg v. There is no final decision denying Sullivan, 959 F.2d 555, 558-62 (5th Cir. plaintiff disability benefits because no 1992) (plaintiff failed to appear at hearing hearing was held. An ALJ may dismiss a without good cause and court determined it request for a hearing at claimant's request or could not review the decision of the ALJ to at the request of claimant's counsel. See 20 dismiss his request for a hearing). C.F.R. §§ 404.957(a), 404.1710. In this case, claimant's counsel submitted a letter to Some courts have consented to review a the ALJ requesting that the hearing be claim for benefits where no hearing was dismissed. (See Herbst Decl. Ex. 4, 8.) held, but only under circumstances Plaintiff does not allege that counsel coerced suggesting that plaintiff has raised a viable her into requesting dismissal, does not claim constitutional issue. See Hatcher v. that counsel's request on her behalf was Barnhart, No. 06 CV 999 (JG), 2006 WL unauthorized, nor that she was somehow 3196849, at *3-5 (E.D.N.Y. Nov. 4, 2006) misinformed her about the consequences of (concluding that there is no jurisdiction requesting a dismissal of the hearing. See where no hearing is held except, where as in 20 C.F.R. § 404.1740(c). As a result, the case, there is a colorable constitutional counsel's request on plaintiff's behalf is claim based on inappropriate notice);imputed to plaintiff. See Zabala v. Astrue, Crumble v. Sec'y of Health & Human Serv., 595 F.3d 402, 408 (2d Cir. 2010). 586 F. Supp. 57, 58-60 (E.D.N.Y. 1984) Furthermore, in his decision dismissing the (claimant asserted he never received notice hearing request, the ALJ concluded that of his hearing and was never given an opportunity to explain why he did not [t]he record shows that the claimant appear, thereby raising a constitutional was fully advised of the effects of question); Raga v. Secretary of HHS, No. [her request], including dismissal of 5:91 CV 1600, 1992 WL 188825, at *3 the request for hearing with the result (N.D. Ohio Feb. 26, 1992) ("The Court is that the initial determination would not anxious to embrace a result that insulates remain in effect. The undersigned is an administrative decision from judicial satisfied that the claimant scrutiny where the claim is made that the understands the effects of her agency failed to follow its own withdrawal of the request for regulations."). hearing.

B. Appeal from Denial of Benefits (Herbst Decl. Ex. 1 at 3.) Thus, there is no final decision for review by this Court

As set forth below, it is clear that there is because a hearing was not held. See, e.g., no final decision by the defendant for this Plagianos, 571 F. Supp. at 497; Matos-Cruz, Court to review. Furthermore, plaintiff 187 F.3d at 622 (collecting cases). failed to raise a colorable constitutional

Nor does plaintiff assert a colorable on a Social Security appeal," and further constitutional claim. As a threshold matter, alleges that the Social Security plaintiff does not allege any constitutional Administration "ignored to give" her violations in her complaint. In any event, it disability benefits "from 2006" and failed to is apparent that defendant followed "liv[e] up to their financial obligation." appropriate agency procedure. As an initial (Compl. Civ. at 2-3; see also Pl.'s Letter to matter, the Notice of Hearing sent to the Court filed on July 23, 2010 (alleging plaintiff indicated that failure to appear that plaintiff "went through their process and without good cause could result in dismissal they failed me" after plaintiff filed an appeal of the hearing request. (Herbst. Decl. Ex. 7 to the Appeals Council which was denied).) at 1.) Plaintiff was notified by mail that her dismissal request was granted and set forth Plaintiff is barred from bringing a civil procedures plaintiff had to follow to appeal action against the SSA for monetary relief the decision to the Appeals Council. (Id. based on violations of the Social Security Ex. 1 at 1.) The Appeals Council denied Act (the "Act") because there is no private plaintiff's request for review, concluding right of action under the SSA. As noted that plaintiff did not provide any basis for above, federal courts are vested with subject reversal. (Id. Ex. 3.) matter jurisdiction only over "final decisions" of social security claims. See 42 In sum, the Court has no subject matter U.S.C. § 405(g). The Social Security Act jurisdiction over plaintiff's appeal of the does not bestow a private right of action for Commissioner's decision denying her monetary relief. See Maloney v. Soc. Sec. benefits. Admin., No. 02-CV-1725 (JFB)(SMG), 2006 WL 1720399, at *9 (E.D.N.Y. June 19,

C. Civil Action 2006), aff'd 517 F.3d 70 (2d Cir. 2008); see also Krauss v. Bowen, Nos. 80 CV 2638, 83

Similarly, this Court has no subject CV 0237, 1989 U.S. Dist. LEXIS 2458, at matter jurisdiction over plaintiff's claim for *2 (E.D.N.Y. Mar. 1, 1989) ("[T]he Social monetary relief based on the defendant's Security Act does not confer any right to an denial of her disability benefits. There is no action for consequential or punitive damages private right of action under the Social resulting from the denial of disability Security Act. In the alternative, even if benefits." (collecting cases)). there was a private right of action, plaintiff has failed to state a claim for which relief In any event, even assuming arguendo may be granted. that this Court has subject matter jurisdiction over plaintiff's civil action against the SSA, In her complaint against the Social her claims also fail to state a claim for which Security Administration ("SSA" or relief may be granted. To the extent "defendant"), plaintiff asserts that she is plaintiff is attempting to allege violations of entitled to monetary damages because the her constitutional rights by the SSA, the SSA failed to grant her request for disability SSA is immune from suit. Generally, benefits. Specifically, plaintiff asserts that plaintiffs whose constitutional rights have the jurisdiction over her civil suit is "based been violated by employees of the federal government may recover money damages administrative process. 487 U.S. at 423.*fn1 pursuant to Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 * * * U.S. 388 (1971). A Bivens claim "alleging violation of a constitutional right may be In sum, the Court dismisses for lack of brought against a federal officer in his subject matter jurisdiction both plaintiff's individual capacity. However, a Bivens appeal from the defendant's denial of claim against a federal agency is precluded, disability benefits, as well as plaintiff's as an action against a federal agency is essentially a suit against the United States, and Bivens actions against the United States claim against the SSA for monetary damages.


For the foregoing reasons, the Commissioner's motion to dismiss is granted in its entirety. The Clerk of Court shall enter judgment accordingly and close this case.


JOSEPH F. BIANCO United States District Judge

Dated: August 31, 2011

Central Islip, New York

Plaintiff is proceeding pro se. The attorneys for defendants are: Loretta E. Lynch, United States Attorney, by Arthur Swerdloff, Eastern District of New York, 271 Cadman Plaza East, Brooklyn, New York 11201.

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