United States District Court, S.D. New York
CYNTHIA L. ALLEN on behalf of CHRISTIAN J. JIMENEZ, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER
PAUL OETKEN, United States District Judge.
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.
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.”)
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.)
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.)
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.
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
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).
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.
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).
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.)
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 ...