United States District Court, S.D. New York
OPINION AND ORDER
EDGARDO RAMOS, U.S.D.J.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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
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.
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
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. 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.
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.
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
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.
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.
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
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 ...