United States District Court, E.D. New York
MEMORANDUM & ORDER
K. CHEN, UNITED STATES DISTRICT JUDGE.
Derrek Wright, proceeding pro se, brings this action
under 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking
judicial review of the Social Security Administration's
(“SSA”) determination denying his application for
disability insurance benefits (“DIB”) under Title
II of the Social Security Act (the “Act”). (Dkt.
1.) Pending before the Court is the Acting Commissioner of
Social Security's (“Commissioner”) motion to
dismiss pursuant to Federal Rule of Civil Procedure
(“FRCP”) 12(b)(1). (Dkt. 14.) Because Plaintiff
has failed to exhaust his administrative remedies with
respect to his DIB claim, the Court grants the
Commissioner's motion and dismisses Plaintiff's
September 22, 2015, Plaintiff filed applications for DIB and
Supplemental Security Income (SSI). (Declaration of Cristina
Prelle, Chief of Court Case Preparation and Review, Branch 4
Office of Disability Adjudication and Review, Social Security
Administration (“Prelle Decl.”), Dkt. 15-2, at
¶ 3(a).) On September 28, 2015, Plaintiff's DIB
application was denied because he had not worked long enough
to obtain sufficient quarters of coverage. (Id.) On
April 6, 2016, Plaintiff's SSI claim was approved.
(Id.) There is no evidence in the record that
Plaintiff appealed the denial of his DIB application.
(Id. at ¶ 3(b).) Plaintiff did not file a
request for reconsideration, a hearing with an Administrative
Law Judge (“ALJ”), or review by the Appeals
Council. (Id.) Plaintiff instead commenced this
action seeking judicial review of the denial of DIB on
January 18, 2017. (Dkt. 1.) The parties submitted their fully
briefed motions on September 6, 2017, including
Defendant's motion to dismiss (Dkt. 14), Plaintiff's
response (Dkt. 12), and Defendant's reply (Dkt. 16).
STANDARD OF REVIEW
determining whether the federal courts have subject matter
jurisdiction over a cause of action, a district court must
look to the way the complaint is drawn to see if it claims a
right to recover under the laws of the United States.”
IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049,
1055 (2d Cir. 1993) (citation omitted). Although courts must
accept as true all material factual allegations in the
complaint and draw all reasonable inferences in favor of the
plaintiff, see Morrison v. Nat'l Australia Bank
Ltd., 547 F.3d 167, 170 (2d Cir. 2008), a court may look
beyond the allegations of the complaint and “examine
evidence outside of the pleadings” when it considers a
motion to dismiss for lack of subject matter jurisdiction,
Bryant v. Steele, 25 F.Supp.3d 233, 241 (E.D.N.Y.
2014) (citation omitted). A plaintiff has the burden of
establishing by a preponderance of the evidence that subject
matter jurisdiction exists. Id.
district court's subject matter jurisdiction over the
SSA's denial of DIB is limited. The court has
jurisdiction pursuant to Section 405(g) of the Act, 42 U.S.C.
§ 405(g), which provides, in part:
(g) Judicial review
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.
405(g) . . . has been interpreted to require that, generally
speaking, administrative procedures must be exhausted before
judicial review is available.” Dietsch v.
Schweiker, 700 F.2d 865, 867 (2d Cir. 1983). The Social
Security regulations set forth the administrative remedies
available to an aggrieved claimant. See 20 C.F.R.
§ 404.900(a). Following the initial determination of his
claim, a plaintiff has the opportunity to seek a hearing
before an ALJ, 20 C.F.R. §§ 404.933, 404.936,
404.955, and then have the ALJ's determination reviewed
by the Appeals Council, 20 C.F.R. § 404.968. The Appeals
Council may either grant the request for review and issue its
own decision or deny the request for review and allow the
ALJ's decision to stand as the final decision of the
Commissioner. See 20 C.F.R. § 404.981. After
receiving the “final decision” of the Appeals
Council, the claimant may then seek judicial review of this
decision by filing an action in federal district court within
sixty days after receiving notice of the Appeals
Council's action. Id.; see also 42
U.S.C. § 405(g). Section 405(h) of the Act provides that
the Commissioner's decisions are binding and
non-reviewable, except as provided in Section 405(g). 21
U.S.C. § 405(h). “It is well settled that under 42
U.S.C. §§ 405(g) and (h), judicial review of Social
Security benefit determinations is limited to
‘final' decisions of the Commissioner made after a
hearing[;] that available administrative procedures must be
exhausted and that a final decision is a prerequisite for
subject matter jurisdiction in the District Court.”
Smith v. Barnhart, 293 F.Supp.2d 252, 255 (E.D.N.Y.
2003) (quoting Mathews v. Chater, 891 F.Supp. 186,
188 (S.D.N.Y. 1995)).
Plaintiff commenced this action before seeking a hearing with
an ALJ or requesting Appeals Council review. As a result,
there is no “final decision” for this Court to
review. See 42 U.S.C. §§ 405(g) and (h).
Although the exhaustion requirement may be waived “by
the Commissioner, or, in appropriate circumstances, by the
Court, ” Matthews, 891 F.Supp. at 188, the
Commissioner has not done so here. Additionally, Plaintiff
has failed to present any facts suggesting that he is
entitled to a waiver of the generally-applicable exhaustion
requirement. See Smith v. Schweiker, 709 F.2d 777,
780 (2d Cir. 1983) (“A waiver of the exhaustion
requirement may be inferred where the plaintiffs' legal
claims are collateral to their demand for benefits, where
exhaustion would be a pro forma or futile gesture, or where
the harm suffered ...