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Allen v. Commissioner of Social Security

United States District Court, S.D. New York

March 23, 2017

CYNTHIA L. ALLEN on behalf of CHRISTIAN J. JIMENEZ, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          J. PAUL OETKEN, United States District Judge.

         Plaintiff Cynthia Allen (“Ms. Allen”) brought this action against the Commissioner of Social Security (“the Commissioner”), on February 16, 2016, after receiving a notice that her son, Christian Jimenez (“Mr. Jimenez”), while previously found disabled as a minor, was no longer considered disabled under the standard of disability applied to adults, leading to the cessation of his monthly disability payments. (Dkt. No. 2 (“Compl.”); Dkt. No. 9, Ex. 1.) On May 31, 2016, the Commissioner moved to dismiss the Complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for failure to exhaust administrative remedies. (Dkt. No. 7.) For the reasons that follow, the motion to dismiss is granted.

         I. Background

         Because Defendant moves to dismiss under Rule 12(b)(1), the following facts are taken from the parties' submissions and include information outside the operative complaint. See Louis v. Comm'r of Soc. Sec., No. 09 Civ. 4725, 2010 WL 743939, at *1 (S.D.N.Y. Mar. 2, 2010) (“In considering a Rule 12(b)(1) motion . . . a court may refer to evidence outside of the pleadings.”)

         On March 3, 2015, the Social Security Administration (“SSA”) issued a notice to Mr. Jimenez (in care of Plaintiff), indicating that, while he previously had received benefits as a disabled child, he “no longer qualified for Supplemental Security Income (SSI)” under the standard of disability for adults. (Dkt. No. 9, Ex. 1 at 1.) The notice also informed Mr. Jimenez of his right to appeal the decision by submitting a request within sixty days. (Id.) If Mr. Jimenez wanted his benefits to continue through the appeal, the notice instructed that he should file his request for reconsideration within ten days. (Id.) Mr. Jimenez submitted a request for reconsideration on May 7, 2015 (within the sixty-day window but outside the ten-day period required to continue payments), asking, among other things, that he continue to receive benefits during the appeal even though the submission was made more than ten days after the notice was issued. (Dkt. No. 9, Ex. 2.) That request remains pending before the agency. (Dkt. No. 8 at 2.)

         On March 7, 2015, the SSA issued a notice to Mr. Jimenez that a “second installment” of payment of past due benefits would be paid to him in the amount of $2, 199.00 (Dkt. No. 15-2 at 1), which Ms. Allen claims the Commissioner has failed to issue (Dkt. No. 15-3 at 3). This alleged failure to pay past due benefits is also the subject of Mr. Jiminez's request for reconsideration still pending with the SSA. (Compl. ¶¶ 11(f), 12; Dkt. No. 9, Ex. 2.)

         Ms. Allen filed this lawsuit on February 16, 2016, raising the same issues as those raised in the still-pending request for reconsideration before the agency. Because Ms. Allen failed to exhaust her administrative remedies, Defendant contends that this Court lacks subject matter jurisdiction and that the action should be dismissed without prejudice.

         II. Discussion

         “Dismissal of a case for lack of subject matter jurisdiction under Rule 12(b)(1) is proper ‘when the district court lacks the statutory or constitutional power to adjudicate it.'” Ford v. D.C. 37 Union Local 1549, 579 F.3d 187, 188 (2d Cir. 2009) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). “In considering a Rule 12(b)(1) motion, courts must construe all ambiguities and inferences in a plaintiff's favor.” Louis, 2010 WL 743939, at *1. “[T]he burden is on the plaintiff to prove by a preponderance of the evidence that jurisdiction exists.” Id.

         In this case, Ms. Allen seeks relief against the Commissioner of Social Security, which implicates sovereign immunity and this Court's subject matter jurisdiction at the motion to dismiss stage. See Guthrie v. U.S. Fed. Bureau of Prisons, No. 09 Civ. 990, 2010 WL 339759, at *3 (S.D.N.Y. Jan. 26, 2010) (“The doctrine of sovereign immunity falls under subject matter jurisdiction and thus is properly addressed under Rule 12(b)(1).” (citing FDIC v. Meyer, 510 U.S. 471, 475 (1994))). “Absent a waiver, sovereign immunity shields the Federal Government and its agencies, ” including the SSA, “from suit.” Meyer, 510 U.S. at 475. Therefore, waiver of sovereign immunity is a “prerequisite” for subject matter jurisdiction in federal district courts. United States v. Mitchell, 463 U.S. 206, 212 (1983).

         Sections 405(g) and (h) of the Social Security Act waive sovereign immunity in social security cases, providing for judicial review only “after any final decision of the Commissioner of Social Security made after a hearing to which [the individual] was a party.” 42 U.S.C. §§ 405(g), (h). “Thus, before any person may bring an action in federal court regarding a decision about Social Security benefits, he must exhaust administrative remedies by securing a final decision from the Commissioner of Social Security.” Louis, 2010 WL 743939, at *2.

         SSA regulations provide that a claimant must complete a four-step administrative review process in order to obtain a final decision subject to judicial review. 20 C.F.R. § 416.1400(a). This process includes: (1) an initial determination; (2) a request for reconsideration; (3) a decision by an administrative law judge after a hearing; and (4) a request for review by the SSA Appeals Council. Id. §§ 416.1400(a)(1)-(4). The regulations further define an “initial determination, ” the first step of the review process, as a determination that is “subject to administrative or judicial review.” Id. § 416.1402. Only after the completion of the full four-step administrative process does a claimant receive a “final decision of the Commissioner, ” which triggers the right to judicial review under the statute. 42 U.S.C. § 405(g). Not all decisions or actions of the SSA are initial decisions subject to the four-step administrative review process and judicial review. See 20 C.F.R. § 416.1403(a).

         Here, Ms. Allen asks this Court: (1) to review the notice indicating that her son is no longer eligible for disability benefits; (2) to issue an order compelling Defendant to pay the final balance of any past due benefits; and (3) to review the cessation of disability benefits to her son. (See Compl. ¶ 14; Dkt. No. 15-3 at 2.)

         First, she has failed to exhaust administrative remedies with respect to these claims, each of which was made in Mr. Jiminez's request for reconsideration and is currently pending before the Commissioner. (Dkt. No. 9, Ex. 2.) Indeed, Ms. Allen does not allege in her complaint that she has exhausted her administrative remedies such that the Court has subject matter jurisdiction over her claims. See Louis, 2010 WL 743939, at *1. Rather Ms. Allen argues that this Court should waive the exhaustion requirement because “[p]ursuing the appeal process is futile as defendant[] has determined to violate ...


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