United States District Court, E.D. New York
CARL T. BANNON, Plaintiff,
SOCIAL SECURITY ADMINISTRATION, Respondent.
MEMORANDUM & ORDER
A. MATSUMOTO JUDGE
November 20, 2017, plaintiff Carl T. Bannon, proceeding
pro se, filed the instant complaint seeking the
reinstatement of his Social Security benefits after his
January 10, 2017 release from incarceration. On February 2,
2018, plaintiff submitted a letter supplementing his
complaint, (Letter, ECF No. 4), and on February 14, 2018,
plaintiff submitted an amended complaint. (Amended Complaint,
ECF No. 6.) Plaintiff's request to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915 is granted
solely for the purpose of this Order. For the reasons below,
the action is dismissed without prejudice. Plaintiff may
re-file his complaint, if necessary, when he has exhausted
his administrative remedies.
following facts are taken from plaintiff's complaint and
amended complaint. Plaintiff was released from incarceration
on January 10, 2017 and was briefly detained thereafter at a
halfway house. (Compl., ECF No. 1 at 2.) On August 17, 2017,
plaintiff received "defendant's computation and
commitment ... in the 'full monthly' benefit sum of
$984.00." (Compl. at 1.) He seeks the payment of $10,
824.00 ($984.00 per month from February 2017 to December
2017) and an order voiding defendant's claim of
overpayment of benefits.
amended complaint includes the "SSA-1099" form he
recently received, which identifies the total amount of
benefits paid to Plaintiff in 2017. (Am. Compl. at 5.)
Plaintiff objects to the calculation of benefits reflected in
the 1099, stating that the form "specifies an unlawful
deduction from the Social Security benefits to which
[plaintiff is] entitled." (Am. Compl. at ¶ 3.)
Although Plaintiff attaches an undated letter addressed to
the Social Security's Northeastern Program Center in
Jamaica, New York, concerning the wiring of funds to the
wrong bank account, the withholding of funds and his
confusion over changes in calculation of his benefits,
(Attachment to Am. Compl., ECF No. 6 at 9), plaintiff appears
to acknowledge that he has not complied with the rigid
exhaustion requirements of the Social Security Administration
("SSA"). (See Am. Compl. at ¶ 5.) Plaintiff
seeks a waiver of the requirement to exhaust administrative
remedies on the basis of his repeated conversations with
Social Security Administration ("SSA")
representatives at the Far Rockaway office, his advanced age
(plaintiff is approximately 85 years old), veteran status,
and homelessness. (Am. Compl. at ¶ 7.)
28 U.S.C. § 1915(e)(2)(B), a district court shall
dismiss an in forma pauperis action where it is
satisfied that the action "(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."
avoid dismissal, a 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 will be considered plausible on its face
"when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
must construe a pro se litigant's pleadings
liberally, Erickson v. Pardus, 551 U.S. 89, 94
(2007); Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009), and a pro se complaint should not be
dismissed without granting the plaintiff leave to amend
"at least once when a liberal reading of the complaint
gives any indication that a valid claim might be stated,
" Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794,
795 (2d Cir. 1999) (internal quotation marks and citations
omitted). Nevertheless, "a pro se plaintiff
must still comply with the relevant rules of procedural and
substantive law, including establishing that the court has
subject matter jurisdiction over the action." Wilber
v. U.S. Postal Serv., No. 10-CV-3346 (ARR), 2010 WL
3036754, at *1 (E.D.N.Y. Aug. 2, 2010) (internal quotation
marks and citations omitted).
plaintiff's failure to exhaust administrative remedies
with respect to claims that arise under the Social Security
Act, 42 U.S.C. § 301 et seq. ("the
Act"), ordinarily deprives a district court of
jurisdiction to review those claims. Under 42 U.S.C. §
405(g), federal courts are vested with subject matter
jurisdiction only over "final decisions" of social
security claims. A final decision, pursuant to 42 U.S.C.
§ 405(g), occurs when a social security claimant
exhausts a four-step administrative review process.
See 20 C.F.R. § 404.900(a). These 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.
See Id. Although the administrative steps prescribed
by the Commissioner of Social Security must be exhausted in
order to obtain a final decision, this requirement is
waivable by the Commissioner or the court in certain
circumstances. Mathews v. Eldridge, 424 U.S. 319,
328 (1976) ("The waivable element is the requirement
that the administrative remedies prescribed by the Secretary
be exhausted. The nonwaivable element is the requirement that
a claim for benefits shall have been presented to the
Secretary."). Waiver may occur when the following
circumstances are present: "(1) the claim is collateral
to a demand for benefits; (2) the exhaustion of remedies
would be futile; and (3) plaintiff would suffer irreparable
harm if required to exhaust administrative remedies."
Dickman v. Social Security Administration, No.
17-cv-7062-MKB 2017 WL 6734183, at *2 (December 29, 2017)
(quoting Steadman v. Colvin, No. 14-cv-7495, 2015 WL
4393022, at *5 (S.D.N.Y. July 14, 2015) and Pavano v.
Shalala, 95 F.3d 147, 150 (2d Cir. 1996)); Escalera
v. Comm'r of Soc. Sec, 457 Fed.Appx. 4, 6 (2d Cir.
2011) (affirming district court's dismissal of social
security action for failure to exhaust administrative
the court is sympathetic to plaintiff's challenges, the
court declines to waive the exhaustion of the administrative
remedies available to plaintiff. Plaintiff's complaint
concerns a demand for benefits and there is no indication
that the remedies available to plaintiff, but not yet
pursued, would be futile. See Escalera, 457
Fed.Appx. at 6 ("Escalera's claim is not collateral
to his demand for benefits, as it involves a demand for
benefits and investigation into his wage earnings.").
Plaintiff's frustration with what he characterizes as the
"irrational implacable attitude of the [SSA]" is
not sufficient to show that administrative review of his
concerns would be futile, because the administrative process
provides an opportunity for agency review of an initial
determination. 20 C.F.R. § 404.900(a). Indeed,
exhaustion is required in order to "prevent premature
interference with agency processes" and to give the
agency "an opportunity to correct its own errors, to
afford the parties and the courts the benefit of its
experience and expertise, and to compile a record which is
adequate for judicial review." (Weinberger v.
Salfi, 422 U.S. 749, 765 (1975).
plaintiff exhausts his administrative remedies, his action is
premature and this court is without jurisdiction to hear his
claim for benefits. See Escalera, 457 Fed.App'x
at 7; Iwachi v. Massanari, 125 Fed.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.'" (quoting Mathews v. Chater, 891
F.Supp. 186, 188 (S.D.N.Y. 1995)); Brown v. Colvin,
No. 16-CV-675 (JG), 2016 WL 614675, at *2 ...