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Parks v. Commissioner of Social Security

United States District Court, S.D. New York

July 17, 2017

MAJOR PARKS, Plaintiff,


          EDGARDO RAMOS, U.S.D.J.

         Before the Court are objections to the Report and Recommendation ("R & R") issued by Magistrate Judge Gabriel W. Gorenstein on October 17, 2016. Doc. 31. This matter was referred to Magistrate Judge Gorenstein for judicial review of a final decision of the Commissioner of Social Security, denying pro se plaintiff Major Parks' ("Plaintiff) request for a review of how his Social Security Disability Insurance Benefits were calculated. In the R & R, Judge Gorenstein recommended granting the Commissioner's motion for judgment on the pleadings. Plaintiff timely objected to the R & R. For the reasons stated herein, the Court ADOPTS the R & R and directs the entry of judgment as recommended.


         On May 11, 2005, the Social Security Administration ("SSA") granted Plaintiff retirement benefits. R & R (Doc. 30) at 2. Plaintiff then filed for Supplemental Social Security ("SSI") benefits on June 16, 2005. Id. On August 29, 2007, after a denial and an appeal, an Administrative Law Judge ("ALJ") awarded SSI benefits to Plaintiff, which included a retroactive component. Id.

         On September 14, 2007, the SSA sent Plaintiff a notice of award (the "2007 determination"). Id. This document explained that the award covered back payments between 2005 and 2007, as well as future payments. Id. However, the notice did not indicate that any deduction would be made from his benefits. Id.

         Plaintiff was represented by Robin Duncan, Esq., from the law firm of Binder and Binder in connection with his application for SSI benefits. Id. at 3. In a separate letter dated September 14, 2007 - the same date as the notice of award - SSA indicated that his lawyer was permitted to charge up to $2, 791, which was deducted from Plaintiffs SSI benefits.[1] Id.

         Plaintiff sought reconsideration of the deduction from his award of attorney's fees, asserting that he had dismissed his lawyer. Declaration of Jean Hall (Doc. 27) ("Dec. JH.") at 8. First, Plaintiff sought review through the SSA's case review mechanism. R & R at 3. The SSA denied his request. Id. Then, Plaintiff requested a hearing before the ALJ. Id. On November 15, 2007 and January 7, 2008, SSA sent letters to Plaintiff at his last known address, 40 Ann Street, 1st Floor New York, NY ("40 Ann Street") requesting documents related to the hearing. Id.; Doc. 32 at 6. Plaintiff failed to return the acknowledgment of receipt form and failed to appear at the hearing. Id. Then, on September 18, 2008 ("2008 hearing"), SSA mailed Plaintiff an order of dismissal, again to 40 Ann Street, noting that no hearing was held as a result of Plaintiffs failure to appear. Id. The order of dismissal concluded that "the prior determination [finding that the deduction of attorney's fees from his SSI benefits was proper] remain[ed] in effect." Tr. 60.[2] Then, on November 17, 2008, SSA mailed Plaintiff another letter finding that the attorney fees were properly deducted because the claim that he fired his attorney was factually unsupported. Dec. JH. at 8.

         One month later, on December 16, 2008, Plaintiff filed another hearing request regarding the attorney fee deduction from the 2007 determination. Dec. JH. at 5-6. He again claimed that the deduction was in error because he had dismissed his attorney. Id. On October 22, 2009, the ALJ held another hearing which Plaintiff attended. Id. Thereafter, on January 15, 2010, the ALJ issued a decision again finding the attorney fee deduction was proper, and mailed this decision to 900 Grand Concourse Apartment Mos Bronx New York, 10451 ("900 Grand Concourse"), the address Plaintiff has provided as his then current address. Id. Plaintiff filed no objections to or appeals from that decision. Id. at 3.

         Almost three years later, on November 25, 2012, SSA issued Plaintiff a notice alerting him to a change in the amount of the monthly benefits he was to receive beginning January 2013. Tr. 59-68, 93. This change of benefits had nothing to do with the prior deduction of attorney's fees. Plaintiff sought reconsideration of amended benefit amount, but the determination was upheld. Tr. 74. Plaintiff then requested a hearing before an ALJ, Tr. 81-84, which was held on December 10, 2013. Tr. 185-91. Prior to his hearing, Plaintiff sent the agency a written submission in which he suggested that he was entitled to a possible refund due to the previous deduction of attorney's fees from his benefits, which he asserted should be counted as earned rather than unearned income. Tr. 178-84. He based his argument on a form he received from the SSA entitled "Information Concerning the Fee Authorization, " which contained the following language:

A claimant may be due more money when the Social Security Administration authorizes a representative's fee and a claimant receives both Social Security and SSI benefits. This is because the social security administration deducts the authorized fee from the amount of the Social Security benefits that count as income for SSI purposes. Then more SSI benefits are due.

Tr. 12, 184. At the hearing, he pressed the position that he was due additional benefits because the attorney's fees should have been considered earned rather than unearned income. Tr. 188-89. Plaintiff testified that his only challenge to the agency's benefit calculation related to the previous deduction of an attorney's fee. Tr. 189-90.

         On December 19, 2013, the ALJ issued a decision affirming that Plaintiffs monthly SSI benefits had been correctly determined. Tr. 14-20. Plaintiff requested review of the ALJ's decision. Tr. 5-13. The ALJ's decision became the final decision of the Commissioner on June 16, 2015, when the Appeals Council denied Plaintiffs request for review. Tr. 2-4. In addition to affirming the ALJ's decision, the Appeals Council noted that Plaintiffs claims regarding any possible underpayment of SSI or other payment of representative's fees were not part of the determination before the ALJ. Tr. 2-3. This action followed.

         As is clear from his various submissions, Plaintiff continues to argue that he is entitled to additional monies because of the payment that was made to his attorneys in connection with the application for SSI benefits, which was deducted from his benefits. He initially argued that the attorney's fees should not have been paid because he had fired his attorneys. As discussed, that argument was rejected. Dec. JH. at 8. He then argued that the SSA misclassified the payment as unearned income.

         In the R & R, Judge Gorenstein found that he was not allowed to even consider the issue raised by Plaintiff because the governing statute, 42 U.S.C. § 405(g), does not permit him to seek judicial review of any decision made in 2008 regarding the attorney fees. R & R at 7. Section 405(g) limits judicial review to only final decisions, and Judge Gorenstein found that Plaintiff did not have a final decision. Id. Therefore, the 2008 hearing dismissing Plaintiffs request for a review, and affirming the attorney fee deduction, was both binding and unreviewable. Id. Thus, Judge Gorenstein recommended that Defendant's motion for judgement on the pleadings should be granted. R & R at 1. The Plaintiff ...

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