United States District Court, E.D. New York
MEMORANDUM AND ORDER
K. BRODIE, United States District Judge
Steven Dickman, proceeding pro se, commenced this
action against Defendant Social Security Administration on
November 30, 2017, seeking retroactive social security
benefits. (Compl., Docket Entry No. 1.) Plaintiff's
request to proceed in forma pauperis pursuant to 28
U.S.C. § 1915 is granted for the purpose of this
decision. For the reasons discussed below, the Complaint is
dismissed without prejudice. Plaintiff may refile this action
once he has exhausted his administrative remedies.
Court assumes the truth of the factual allegations in the
Complaint for the purpose of this Memorandum and Order.
Plaintiff is currently seventy-two years old and claims
entitlement to social security benefits on account of his
age. (Compl. at 5.) On September 11, 2015, Plaintiff was
sentenced to thirty-three months of incarceration followed by
two years of supervised release. (Mar. 1, 2017 Letter from
United States Probation Officer Charnice D. Perez
(“Mar. 1, 2017 Letter”), annexed to Compl. as Ex.
B.) On December 27, 2016, Plaintiff was released from custody
and commenced his term of supervised release. (Id.)
Plaintiff alleges that “[f]ollowing December 27, 2016,
[he] was not a ‘resident' of what is characterized
as a ‘halfway house' and was at that time in the
status of ‘probation.'” (Compl. at 2.)
Plaintiff alleges that he was therefore entitled to social
security benefits beginning January 1, 2017, (id. at
3), and is owed retroactive benefits of $1107 per month for
the period of January 1, 2017 through October 31, 2017,
(id. at 5). However, despite multiple requests to
representatives at the Social Security Administration office
located at 7714 17th Avenue in Brooklyn, New York, Plaintiff
has not received proper payment. (Id. at 3-6.)
Standard of review
complaint must plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir.
2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). Although all allegations contained in the complaint
are assumed to be true, this tenet is “inapplicable to
legal conclusions.” Iqbal, 556 U.S. at 678. In
reviewing a pro se complaint, the court must be
mindful that a plaintiff's pleadings should be held
“to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (per curiam) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)); see Harris v.
Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even
after Twombly, the court “remain[s] obligated
to construe a pro se complaint liberally”).
Nevertheless, the Court is required to dismiss sua
sponte an in forma pauperis action if the Court
determines it “(i) is frivolous or malicious; (ii)
fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B);
see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.
2007). In addition, if the Court “determines at any
time that it lacks subject-matter jurisdiction, the Court
must dismiss the action.” Fed.R.Civ.P. 12(h)(3);
see also Cortlandt St. Recovery Corp. v. Hellas
Telecomms., S.À.R.L., 790 F.3d 411, 416-17 (2d
Cir. 2015) (A district court may dismiss an action for lack
of subject matter jurisdiction pursuant to Rule 12(b)(1) when
the court “lacks the statutory or constitutional power
to adjudicate it . . . .” (quoting Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000))).
The Court lacks subject matter jurisdiction over
Court cannot exercise jurisdiction over Plaintiff's claim
because it does not appear that Plaintiff has exhausted his
405(g) of the Social Security Act requires that a plaintiff
first exhaust his administrative remedies prior to seeking
review of a decision of the Commissioner of Social Security
(the “Commissioner”), and that an appeal to
federal court must be from a “final decision” of
the Commissioner. 42 U.S.C. § 405(g); see also Sims
v. Apfel, 530 U.S. 103, 107 (2000); Norman v.
Astrue, 912 F.Supp.2d 33, 40 (S.D.N.Y. 2012)
(“[T]he [Commissioner's] ‘final decision'
is a prerequisite to subject matter jurisdiction in the
district court and consists of two components, a presentment
requirement and an exhaustion requirement.” (quoting
Ryan v. Bentsen, 12 F.3d 245, 247 (D.C. Cir.
1993))). The statute also provides that there shall be no
review other than that provided in section 405(g). 42 U.S.C.
§ 405(h). Under 20 C.F.R. § 404.900, a social
security claimant must obtain a final decision by exhausting
a four-step administrative review process. See 20
C.F.R. § 404.900(a). Moreover, “[t]hese four steps
must be requested by a claimant within certain time periods
and in the following order: (1) initial determination; (2)
reconsideration determination; (3) hearing before an
administrative law judge; (4) and Appeals Council
review.” Brown v. Colvin, No. 16-CV-675, 2016
WL 614675, at *1 (E.D.N.Y. Feb. 12, 2016) (citing 42 U.S.C.
certain circumstances, the exhaustion requirement may be
waived either by the Commissioner or by the Court.
Steadman v. Colvin, No. 14-CV-7495, 2015 WL 4393022,
at *5 (S.D.N.Y. July 14, 2015) (adopting report and
recommendation). The exhaustion requirement may be waived
when: “(1) the claim is collateral to a demand for
benefits; (2) the exhaustion of remedies would have been
futile; and (3) a plaintiff would suffer irreparable harm if
required to exhaust administrative remedies.”
Id. “[N]o one element is critical to the
resolution of the exhaustion issue; rather, a more general
approach balancing the competing considerations to arrive at
a just result, is in order.” Id. (alteration
omitted) (quoting Pavano v. Shalala, 95 F.3d 147,
150 (2d Cir. 1996)).
Plaintiff has not set forth any allegations suggesting that
he obtained a final decision from the Commissioner concerning
a claim for benefits, that an administrative hearing on the
matter was held, or that he complied with the administrative
review process under the Social Security Act. In addition,
Plaintiff does not plead any facts warranting the Court's
waiver of the administrative process. Accordingly, the Court
is without jurisdiction to hear Plaintiff's claim.
See Iwachi v. Massanari, 125 F. App'x 330, 332
(2d Cir. 2005) (“The Commissioner's decision does
not become ‘final' until ‘after the Appeals
Council has denied review or decide the case after
review.'” (first quoting Mathews v.
Chater, 891 F.Supp. 186, 188 (S.D.N.Y. 1995),
aff'd, 101 F.3d 681 (2d Cir. 1996); and then
citing 20 C.F.R. § 404.981, § 416.1481); see
also Joseph v. Soc. Sec. Admin., No. 16-CV-3377, 2017 WL
1067804, at *4 (E.D.N.Y. Feb. 28, 2017), report and
recommendation adopted sub nom Joseph v. Soc. Sec.
Office, No. 16-CV-3377, 2017 WL 1078570 (E.D.N.Y. Mar.
20, 2017); Brown, 2016 WL 614675, at *2.
foregoing reasons, the Court dismisses the Complaint without
prejudice for lack of subject matter jurisdiction.
Fed.R.Civ.P. 12(h)(3). The Court certifies pursuant to 28
U.S.C. § 1915(a)(3) that any appeal from this order
would not be taken in good faith and therefore in forma
pauperis status is denied ...