United States District Court, E.D. New York
MEMORANDUM AND ORDER
L. IRIZARRY Chief Judge
Cairo ("Plaintiff) filed the instant action,
pro se, against the Commissioner of Social Security
("Commissioner") appealing the Commissioner's
decision granting her July 20, 2009 application for
disability insurance benefits and supplemental security
income under the Social Security Act (the "Act").
See Certified Administrative Record ("R"),
Dkt. Entry No. 9 at 119-21, 157. The Commissioner moves for
judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c),
seeking dismissal for lack of subject matter jurisdiction
under Fed.R.Civ.P. 12(b)(1) and because the appeal is
untimely pursuant to Fed.R.Civ.P. 12(b)(6). See Mem.
of Law in Supp. of Def.'s Mot. for J. on the Pleadings
("Def.'s. Mem."), Dkt. Entry No. 13. Plaintiff
opposes the Commissioner's motion. See PL's
Aff in Opp'n to Def.'s Mot. ("PL's
Aff"), Docket Entry No. 11. For the reasons set forth
below, the Commissioner's motion is granted and the
instant appeal is dismissed.
Plaintiff filed her application seeking disability insurance
benefits and supplemental security income under the Act,
Administrative Law Judge Lori Romeo (the " ALJ")
issued a written decision on May 21, 2010, concluding that
Plaintiff was not disabled within the meaning of the Act. R.
8-19. On July 29, 2011, the ALJ's decision became the
Commissioner's final decision when the Appeals Council
denied Plaintiff's request for review. R. 1-4. On August,
8, 2011, Plaintiff filed an appeal seeking judicial review of
the denial of benefits pursuant to 42 U.S.C. § 405(g).
See Cairo v. Commissioner of Social Security No.
11-cv-03839 (DLI), Dkt. Entry No. 1. On March 26, 2013, this
Court issued a Memorandum and Order (“M & O”)
remanding the case to the Commissioner for further
administrative proceedings. See Cairo v. Comm'r of
Soc. Sec., 2013 WL 1232300 (E.D.N.Y. Mar. 26, 2013).
remand, the Appeals Council vacated the ALJ's decision on
April 19, 2013, and directed further administrative
proceedings be held consistent with the M & O. R. 475-77. The
ALJ held two hearings on April 7, 2014, and September 24,
2014. R. 332-401; 302-29. At both hearings, Plaintiff
appeared and was represented by counsel. Id. During
the September 24, 2014 hearing, Plaintiff's counsel
discussed with the ALJ amending Plaintiff's disability
onset date in order to facilitate a favorable decision by the
ALJ. Id. at 321-25. By letter dated November 24,
2014, Plaintiff, through counsel, requested that the ALJ
amend her alleged disability onset date from May 15, 2009, to
January 1, 2013. Compare R. 205, 458, with
R. 658. On March 31, 2015, the ALJ issued a decision finding
that Plaintiff was disabled, eligible for supplemental
security income, and entitled to disability insurance
benefits commencing January 1, 2013. R. 288-301.
1, 2015, the ALJ's decision became the Commissioner's
final decision when the time for the Appeals Council to
review the ALJ's decision expired. R. 289. Plaintiff
filed the instant appeal seeking review of the
Commissioner's decision pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3). Plaintiff asserts that
the Commissioner denied her benefits improperly for the years
2009-2012. Pl.'s Aff. at 1-3.
Legal Standard for Dismissal
a Rule 12(c) motion asserts that a court lacks subject matter
jurisdiction, the motion is governed by the same standard
that applies to a Rule 12(b)(1) motion.” Cruz v.
AAA Carting & Rubbish Removal, Inc., 116 F.Supp.3d 232,
239 (S.D.N.Y. 2015) (internal citation and quotation marks
omitted); Riley v. City of N.Y., 2014 WL 11460471,
at *2 (E.D.N.Y. Oct. 29, 2014). Under Rule 12(b)(1) of the
Federal Rules of Civil Procedure, a defendant may move, in
lieu of an answer, for dismissal of a complaint for
“lack of subject-matter jurisdiction.” In
evaluating a motion to dismiss under Rule 12(b)(1), the court
accepts as true all factual allegations in the complaint;
however, it should not draw inferences favorable to the party
asserting jurisdiction. J.S. ex rel. N.S. v. Attica Cent.
Sch., 386 F.3d 107, 110 (2d Cir. 2004). “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). “A plaintiff asserting subject matter
jurisdiction has the burden of proving by a preponderance of
the evidence that it exists.” Id. In
determining the existence of subject matter jurisdiction, a
district court may consider evidence outside the pleadings.
reviewing the complaint, the Court is mindful that,
“[a] document filed pro se is to be liberally
construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted).
Accordingly, the Court interprets the complaint “to
raise the strongest arguments that [it] suggest[s].”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474 (2d Cir. 2006) (emphasis omitted); Weixel v. Board of
Education of the City of New York, 287 F.3d 138, 146 (2d
Cir. 2002). While the heightened pleading standards set by
Twombly and Iqbal are not necessarily
dispensed with in considering pro se submissions,
the court still must construe pro se complaints
liberally. Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009). Nevertheless, this liberal construction requirement
does not absolve a pro se plaintiff of the
obligation to “‘plead sufficient facts to state a
claim that is plausible on its face.'”
Chukwueze v. NYCERS, 891 F.Supp.2d 443, 450
(S.D.N.Y. 2012) (internal citation omitted).
Judicial Review Under the Social Security Act
42 U.S.C. § 405(g), “[a]ny individual, after any
final decision of the Commissioner of Social Security made
after a hearing to which he was a party, . . . may obtain a
review of such decision” by initiating a civil action
in federal district court. The Second Circuit has held that
“judicial review over Social Security determinations
pursuant to 42 U.S.C. § 405(g) ‘makes no provision
for judicial review of a determination favorable to the
complainant.'” Heller v. Comm'r of Soc.
Sec., 328 F. App'x 74, 75 (2d Cir. 2009) (Summary
Order) (quoting Jones v. Califano, 576 F.2d 12, 19
(2d Cir. 1978)).
Commissioner argues that, because the decision Plaintiff
received was fully favorable to her, it is not reviewable by
this Court under the Act. Def.'s. Mem. at 4-6. The Court
agrees. Here, although Plaintiff originally alleged a
disability onset date of May 15, 2009, R. 205, her attorney
“with [Plaintiff's] consent . . . request[ed] that
the onset of disability be amended to January 1,
2013[.]” R. 658. Subsequently, the ALJ issued a
decision finding that Plaintiff “has been disabled . .
. since January 1, 2013.” R. 300-301. The ALJ's
decision was fully favorable to Plaintiff, as it adopted the
amended disability onset date Plaintiff requested.
Accordingly, the appeal is dismissed because the Court lacks
jurisdiction to review a fully favorable decision. See
Bennerman v. Commisioner of Soc. Sec., 2013 WL 6796351,
at *3 (E.D.N.Y. Dec. 23, 2013); Figueroa v. Comm'r of
Soc. Sec., 2013 WL 3481317, at *3 (S.D.N.Y. July 11,
2013); Coles v. Astrue, 2012 WL 695849, at *3
(E.D.N.Y. Mar. 5, 2012).
argues that the ALJ denied her benefits for “the years
2009, 2010, 2011, and 2012.” Pl.'s Aff. at
The Court liberally construes Plaintiff's argument to
contend that the Commissioner's decision was not fully
favorable. In the Second Circuit, absent evidence of coercion
or deception, “counsel's concession and amendment
of the period under review [are] within his authority”
and “the attorney's conduct is imputed to [the
plaintiff].” Zabala v. Astrue, 595 F.3d 402,
408 (2d Cir. 2010). Here, the record states that Plaintiff
“appeared in person, ” R. 304, at the September
24, 2014, where her counsel and the ALJ discussed amending
the disability onset date. After the hearing, Plaintiff does
not assert, and there is no evidence in the record, that she
was coerced or deceived into “consent[ing]” to
amend the disability onset date. R. 658. Accordingly,
Plaintiff's argument is meritless and does not alter the
conclusion that she received a fully favorable decision from
the Commissioner based on the disability onset date she
proposed. As such, ...