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Burtugno v. Commissioner of Social Security

United States District Court, S.D. New York

August 1, 2018

ANTHONY BURTUGNO, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          J. PAUL OETKEN UNITED STATES DISTRICT JUDGE.

         Plaintiff Anthony Joseph Bortugno, [1] proceeding pro se, challenges the denial of his social security disability benefits for a period from 2007 to 2009. The Commissioner has filed a motion for judgment on the pleadings. For the reasons below, the motion is granted and this case is dismissed for lack of subject matter jurisdiction.

         I. Background

         Bortugno, a former electrician, is unable to work because of his various physical and psychiatric impairments. (Dkt. No. 8 (“Tr.”) at 22, 47.) This case concerns two separate applications for disability benefits filed by Bortugno. First, in February 2008, Bortugno applied for supplemental security income and disability insurance benefits, alleging a disability onset date of January 1, 2008. (Tr. at 20.) On September 25, 2009, administrative law judge Miriam L. Shire (“ALJ Shire”) issued a decision finding that Bortugno was not disabled. (Id.) Second, in October 2009, Bortugno reapplied for disability benefits, alleging an onset date of June 15, 2007. (Tr. at 20, 307-10.) This second application did not mention Bortugno's previous application nor its unfavorable disposition. (Tr. 350-53.) On September 21, 2011, a different administrative law judge, Seth Grossman (“ALJ Grossman”), issued a decision that Bortugno was disabled as of June 15, 2007. (Tr. at 20, 105-09.) ALJ Grossman's September 2011 decision did not mention ALJ Shire's 2009 decision. (Id.)

         Shortly after ALJ Grossman issued his decision, Bortugno's counsel wrote a letter, apparently without Bortugno's agreement (see Tr. 216-17; Dkt. No. 10 at 4), advising ALJ Grossman of Bortugno's 2008 application and requesting to amend Bortugno's claim to reflect a disability onset date of September 26, 2009-the day after ALJ Shire's decision issued. (Tr. at 354.) On November 22, 2011, ALJ Grossman issued a revised favorable decision and changed Bortugno's onset date to September 26, 2009. (Tr. at 116-20.) Bortugno requested review of the amended November 2011 decision.

         On December 5, 2013, the Appeals Council issued a decision (1) affirming ALJ Grossman's finding that Bortugno has been disabled since September 26, 2009, but (2) vacating the decision with respect to Bortugno's disability before September 26, 2009. (Tr. at 124-25.) The Appeals Council explained that ALJ Grossman should have treated Bortugno's October 2009 reapplication as a request to reopen ALJ Shire's September 2009 decision. The Appeals Council consequently remanded the case for ALJ Grossman to “weigh[] the medical evidence in order to determine whether [Bortugno] was entitled to an onset date that preceded [ALJ Shire's] unfavorable, September 25, 2009 hearing decision.” (Tr. at 124.)

         On June 23, 2015, ALJ Grossman issued a decision concluding that there was no “good cause” to reopen the September 2009 decision. (Tr. at 20-23.) Accordingly, Bortugno's onset date remains September 26, 2009. (Tr. at 23.) This suit followed. (See Dkt. No. 1.)

         II. Legal Standard

         “Although subject matter jurisdiction is usually challenged by way of a Rule 12(b)(1) motion to dismiss, it may also be raised on a Rule 12(c) motion for judgment on the pleadings.” U.S. ex rel Phipps v. Comprehensive Cmty. Dev. Corp., 152 F.Supp.2d 443, 448 (S.D.N.Y. 2001); see also Fed. R. Civ. P. 12(h)(3) (“[I]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). “A case is properly dismissed for lack of subject matter jurisdiction . . . when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The plaintiff has the burden of proving subject matter jurisdiction by a preponderance of the evidence. Id.

         Because Bortugno is proceeding pro se, the Court will “read his supporting papers liberally, and will interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).

         III. Discussion

         “Congress prescribes the procedures, conditions, and courts in which a claimant may seek judicial review of an administrative order, ” Bennerman v. Comm'r of Soc. Sec., No. 11 Civ. 6384, 2013 WL 6796351, at *2 (E.D.N.Y. Dec. 23, 2013), and sections 405(g) and (h) of the Social Security Act give district courts jurisdiction to review only “final decision[s]” made by the Commissioner of Social Security. 42 U.S.C. §§ 405(g), (h). Therefore, “[a]s a general rule, federal courts lack jurisdiction to review an administrative decision not to reopen a previous claim for benefits . . . [because] [t]he Commissioner's decision not to reopen a prior determination is not a final decision for the purposes of § 405(g).” Byam v. Barnhart, 336 F.3d 172, 179-80 (2d Cir. 2003).

         “Nevertheless, federal courts may review the Commissioner's decision not to reopen a disability application in two circumstances: where the Commissioner has constructively reopened the case and where the claimant has been denied due process.” Id. at 180. The Court considers whether either condition exists in this case.

         A. ...


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