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Bitetto v. Commissioner of Social Security

United States District Court, N.D. New York

November 15, 2017

MARCO A. BITETTO, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          FOR PLAINTIFF: MARCO A. BITETTO, Pro se

          FOR DEFENDANT: HON. GRANT C. JAQUITH KRISTINA D. COHN, ESQ. Acting United States Attorney for the Special Assistant U.S. Attorney

          DECISION AND ORDER

          DAVID E. PEEBLES, CHIEF U.S. MAGISTRATE JUDGE

         Plaintiff 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 dismissed.[1]

         I. BACKGROUND

         Plaintiff 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. Id.

         In 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.[2] Id. at 6.

         Plaintiff's appeal to an ALJ of the overpayment determination for the period December 1992 through January 1995 was denied on November 22, 1994.[3] Dkt. No. 11-2 at 4. Since receiving the ALJ's decision, plaintiff has not requested review by the Social Security Appeals Council ("SSAC"). Id.

         II. PROCEDURAL HISTORY

         Plaintiff 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.

         III. DISCUSSION

         Plaintiff's 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).[4] 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 ...


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