United States District Court, N.D. New York
MARCO A. BITETTO, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
PLAINTIFF: MARCO A. BITETTO, Pro se
DEFENDANT: HON. GRANT C. JAQUITH KRISTINA D. COHN, ESQ.
Acting United States Attorney for the Special Assistant U.S.
DECISION AND ORDER
E. PEEBLES, CHIEF U.S. MAGISTRATE JUDGE
Marco A. Bitetto, who is proceeding pro se, has
commenced this action pursuant to 42 U.S.C. § 405(g)
challenging a decision rendered in 1994 by a Social Security
Administrative Law Judge ("ALJ"), concluding that
plaintiff was overpaid supplemental security income
("SSI") benefits based upon his failure to comply
with the pre-requisites for receiving those payments. The
Acting Commissioner of Social Security has moved to dismiss
the plaintiff's complaint based upon his alleged failure
to fully exhaust administrative remedies before commencing
this action. For the reasons set forth below, defendant's
motion is granted, and plaintiff's complaint is
applied for SSI benefits under Title XVI of the Social
Security Act on June 29, 1983. Dkt. No. 11-2 at 3. Plaintiff
was ultimately found by the agency to be disabled, and thus
eligible for the requested benefits as of that date.
calculating plaintiff's SSI payments, the agency excluded
income and resources necessary to fulfill an approved Plan to
Achieve Self- Support ("PASS"). Dkt. No. 11-2 at 5.
Plaintiff's PASS eligibility, however, was terminated,
effective in November 1992, for non-compliance with his PASS
plan. Id. at 4-5. As a result of that termination,
the income and resources associated with the implementation
of plaintiff's PASS plan, which were previously exempted
in determining his eligibility for SSI benefits, were
thereafter factored into the eligibility calculus.
Id. at 5. The additional income and resources led to
a finding that plaintiff was overpaid SSI benefits in the
amount of $10, 216.00 for the period December 1992 through
January 1995, and an additional amount of $6, 028.00 for the
period of August 1991 through June 1992. Id. at 5-6.
To recoup the amount of the overpayment, the agency reduced
plaintiff's SSI benefits by $50 per month until
2014. Id. at 6.
appeal to an ALJ of the overpayment determination for the
period December 1992 through January 1995 was denied on
November 22, 1994. Dkt. No. 11-2 at 4. Since receiving the
ALJ's decision, plaintiff has not requested review by the
Social Security Appeals Council ("SSAC").
commenced this action on or about May 22, 2017, seeking
judicial review of the ALJ's determination regarding his
overpayment pursuant to 42 U.S.C. § 405(g). Dkt. No. 1.
In response to plaintiff's complaint, the Acting
Commissioner moved for its dismissal on September 7, 2017,
arguing that Bitetto failed to exhaust internal remedies by
first requesting review of the ALJ's determination by the
SSAC before commencing suit. Dkt. No. 11-1. Defendant's
motion, to which plaintiff has not responded, is now ripe for
determination, and has been taken on submission.
challenge to the Acting Commissioner's decision is
brought pursuant to section 205(g) of the Social Security
Act, which is codified at 42 U.S.C. § 405(g). That
section provides, in relevant part, as follows:
Any individual, after any final decision of the
Commissioner of Social Security made after a hearing to which
he was a party, irrespective of the amount in controversy,
may obtain a review of such decision by a civil action
commenced within sixty days after the mailing to him of
notice of such decision or within such further time as the
Commissioner of Social Security may allow.
42 U.S.C. § 405(g) (emphasis added). Because section
405(g) constitutes a waiver by the government of its
sovereign immunity, which would otherwise protect it from
suit, it is subject to strict construction. Bowen v. City
of N.Y., 476 U.S. 467, 479 ...