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Danien Harper v. Michael J. Astrue

February 17, 2012


The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.


Plaintiff Danien Harper ("Plaintiff"), pro se, brings this action pursuant to § 205(g) and § 1631(c)(3) of the Social Security Act, 42 U.S.C. § 405(g) and § 1383(c)(3), challenging the final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying her March 2002 Plan to Achieve Self-Support. The Commissioner moves to dismiss this action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P."), or alternatively, for a judgment on the pleadings pursuant to Rule 12(c) of the Fed. R. Civ. P. Plaintiff has failed to file any opposition papers with the Court. For the reasons that follow, the Commissioner's motion is granted.

I. Background

Plaintiff filed for Supplemental Security income ("SSI") benefits on June 17, 1999 and was found to be disabled due to a mental impairment. (Administrative and Supplemental Record filed by the Commissioner ("Rec.") at 24, 143.)*fn1 Plaintiff's established disability onset date was June 17, 1999. (Id.) On November 14, 2001, Plaintiff filed for Disability Insurance Benefits ("DIB") due to her mental impairment*fn2 and was approved with an established disability onset date of November 30, 2000. (Declaration of Sandra Escuder dated May 13, 2011 ("Escuder Decl.") ¶ 3.) Plaintiff's DIB payments were terminated during periods when she was engaged in substantial gainful activity.*fn3 During relevant time periods, Plaintiff's DIB payments increased her total income beyond the required threshold and triggered income-based suspension of her SSI payments.*fn4

A. Plaintiff and the PASS Program

The Plan to Achieve Self-Support ("PASS") program was designed to help blind or disabled persons become self sufficient, with the worthy goal of their eventual removal from the Social Security Income rolls. The Code of Federal Regulations governing SSI states in relevant part:

If you are blind or disabled, we will pay you SSI benefits and will not count the part of your income (for example, your or a family member's wages, title II benefits, or pension income) that you use or set aside to use for expenses that we determine to be reasonable and necessary to fulfill an approved plan to achieve self-support. (See §§ 416.1112(c)(9) and 1124(c)(13).) You may develop a plan to achieve self-support on your own or with our help. As appropriate, we will refer you to a State rehabilitation agency or agency for the blind for additional assistance in developing a plan.

20 CFR § 416.1180. In order to qualify for the PASS program an individual must submit a plan that: (1) is designed especially for the beneficiary; (2) is submitted in writing; (3) is approved by the SSA; (4) provides a specific employment goal that the beneficiary has a reasonable likelihood of achieving; (5) provides a step by step plan to reach that goal which is both viable and financially sustainable; (6) is limited to only one employment goal; (7) shows how the employment goal will generate sufficient earnings to substantially reduce or eliminate your dependence on SSI or eliminate your need for Title II disability benefits; (8) provides beginning and end dates for meeting the goal; (9) provides target milestones for meeting the goal; (10) details what expenses will be incurred, and the reasonableness of these expenses; (11) shows what money the beneficiary has and will receive, how he or she will use or spend it to attain the employment goal, and how he or she will meet his or her living expenses; and (12) detail how the money set aside under the plan will be kept separate from his or her other funds. 20 CFR § 416.1181.

The March 2002 PASS

In March 2002, Plaintiff filed a PASS with the Social Security Administration ("SSA"). Plaintiff's plan was to operate her own booth at a hair salon with the ultimate goal of opening up her own salon within five years. (Rec. at 54-65.) Despite providing the required paperwork for her PASS, (Rec. at 179-244), Plaintiff's PASS was denied by the SSA, a decision that was upheld upon her request for reconsideration (Rec. at 37-39; 154-55). Subsequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") to adjudicate her PASS proposal. (Rec. at 41.) On September 10, 2002, a hearing was held before ALJ Wallace Tannenbaum. (Rec. at 22-36.) Plaintiff testified that she attended trade school to be a hair stylist years earlier, obtained a cosmetology license, and subsequently worked as a hair stylist at 18 years of age (Rec. at 26.) In order to currently work in the field of cosmetology, she stated that she would need to return to school in order to refresh her knowledge and skill. (Rec. 25-26.)

Plaintiff also testified that she had been actively looking for work in a hair salon, and just recently was approached by two beauty salon owners who had offered her a booth in their salon. (Rec. at 29.) Plaintiff subsequently declined their offer because she "wanted to make sure that everything was clear" and that she would properly be able to deal with her mental disability as to not suffer a relapse. (Rec. at 30.) Plaintiff also testified that she was receiving daily outpatient treatment at Mount Sinai Hospital. (Rec. at 31-32.) By decision dated October 21, 2002, ALJ Tannenbaum found that the SSA had properly denied Plaintiff's PASS as it failed to meet all the criteria of 20 CFR § 416.1181. In his findings, ALJ Tannenbaum stated, inter alia, that Plaintiff (1) had very limited knowledge about operating a business; (2) had very limited experience in hair styling work; (3) was already enrolled in a vocational program for security work and cleaning work; and (4) had credit card debt that exceeded $3,000. (Rec. at 12-13.) On October 9, 2003, the ALJ's decision became the final decision of the Commissioner after the SSA Appeals Council denied Plaintiff's request for review. (Rec. at 5-7.)

On December 22, 2003, Plaintiff filed the instant Complaint challenging the Commissioner's final decision. Plaintiff's Complaint incorrectly states that the Commissioner denied her disability benefits. As discussed supra, the Commissioner found Plaintiff to be disabled due to a mental impairment on June 17, 1999. Plaintiff, however, is proceeding pro se, and the Court will liberally construe her pleadings, see Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)), and presume Plaintiff's Complaint challenges the denial of her March 2002 PASS. Subsequently, on April 1, 2004, the Court remanded the case back to the Commissioner for additional findings of fact pursuant to 42 U.S.C. 405(g). (See Stipulation and Order dated March 30, 2004, ECF No. 6.) Accordingly, the Appeals Council vacated the final decision of the Commissioner and remanded the case back to the ALJ for further proceedings. (Rec. at 152-53.)

In July 2004, during the pendency of the instant action, Plaintiff filed a new PASS with the SSA with the stated goal of becoming a physician's assistant. (Escuder Decl. ΒΆ 17.) On September 1, 2004, Plaintiff resubmitted the July 2004 PASS with the revised goal of becoming a licensed practical nurse. (Id.) The SSA approved this PASS, however, the PASS was suspended in December 2004 because Plaintiff failed required ...

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