Judge v. Colvin, No. 2:2012cv02633 - Document 28 (E.D.N.Y. 2014)
Court Description: MEMORANDUM & ORDER granting 21 Motion to Dismiss for Lack of Jurisdiction; For the foregoing reasons, the Commissioners motion is GRANTED and this action is DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. The Court certifies that 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 for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444--45, 82 S. Ct. 917, 920, 8 L. Ed. 2d 21 (1962). The Clerk of the Court is directed to amend the docket to reflect that Carolyn W. Colvin is now the Social Security Commissioner, to mark this matter CLOSED, and to mail a copy of this Memorandum and Order to pro se Plaintiff. So Ordered by Judge Joanna Seybert on 9/3/2014. C/M to pro se Pltff via FCM. C/ECF to Judgment Clerk. (Coleman, Laurie)
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Judge v. Colvin Doc. 28 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------X ROBERT E. JUDGE, Plaintiff, MEMORANDUM & ORDER 12-CV-02633(JS) -againstCAROLYN W. COLVIN, Social Security Commissioner,1 Defendant. ---------------------------------------X APPEARANCES For Plaintiff: Robert E. Judge, pro se P.O. Box 327 Huntington, NY 11743 For Defendant: Loretta E. Lynch, Esq. United States Attorney’s Office Eastern District of New York 610 Federal Plaza, 5th Floor Central Islip, NY 11722 SEYBERT, District Judge: On (“Plaintiff”) Security Act, May 22, commenced as 2012, this amended, plaintiff action 42 Robert pursuant to U.S.C. § 405(g), E. Judge the Social challenging defendant the Commissioner of Social Security’s (“Defendant” or the “Commissioner”) denial of his application for disabled adult children’s benefits. Currently pending before the Court is the Commissioner’s motion to dismiss this action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure The Clerk of the Court is directed to amend the docket to reflect that Carolyn W. Colvin is now the Social Security Commissioner. 1 Dockets.Justia.com 12(b)(1). For the following reasons, the Commissioner’s motion is GRANTED. BACKGROUND On April 12, 2005, Plaintiff filed a claim, pursuant to 42 U.S.C. § 402(d)(1), for disabled adult child’s benefits based on the earnings of his father, who died on March 28, 1983. See Judge v. Astrue, No. 09-CV-4058, 2011 WL 1810468, at *1 (E.D.N.Y. May 10, 2011). According to § 402(d)(1), an individual may be entitled to disabled adult child’s benefits based on the record earnings of an insured deceased person if: (i) the claimant is eighteen years of age or older; and (ii) suffers from a disability that began before he attained twentytwo years of age. Plaintiff, born on January 25, 1955, claimed that he had been disabled since January 5, 1975. Following (“ALJ”) issued Plaintiff’s judicata. a a hearing, decision application, Id. on finding the Id. Administrative September that it 19, was Law 2005 barred Judge denying by res The ALJ decided that the application sought the same benefits as a previous application from Plaintiff, which had been denied on September 14, 1995. Id. Plaintiff next filed an action in the United States District Court for the Eastern District of New York under Docket Number 05-CV-5160 on November 3, 2005. Id. On September 6, 2007, Judge Arthur D. Spatt remanded the case to the Social Security Administration (“SSA”) for additional proceedings, pursuant to the fourth sentence of 42 U.S.C. § 405(g), when it became apparent that the SSA could not locate copies of the September 14, 1995 decision denying Plaintiff’s disabled adult child’s benefit application (on which the res judicata ruling was predicated) as well as the notices advising him of that decision, of his failing to appeal. right to appeal, and of consequences from Id. Following remand, on June 10, 2008, Plaintiff appeared, without counsel, and again testified before the ALJ. Id. The hearing was adjourned to August 20, 2008 in order to obtain medical expert testimony. Id. On August Plaintiff once again appeared without counsel. Id. hearing, de the ALJ assessed Plaintiff’s claim 20, 2008, At this novo and concluded that on October 31, 2008 Plaintiff was not disabled prior to January 12, 1977, and disabled adult child’s benefits.2 declined to assume jurisdiction therefore Id. not entitled to After the Appeals Council over Plaintiff’s case, the decision of the ALJ became the final decision of Commissioner. Id. Plaintiff filed another action in the United States District Court for the Eastern District of New York under Docket The ALJ may have inadvertently listed the wrong date, as Plaintiff was born on January 25, 1955. 2 Number 09-CV-4058. (Def.’s Br., Docket Entry 23, at 2.) On May 5, 2011, this Court remanded that case to the Commissioner for further administrative proceedings because Plaintiff, proceeding pro se, was not fully apprised of his availability to obtain legal representation and thus did not submit a waiver of the right to counsel. See Judge, 2011 WL 1810468, at *3-4. Upon remand, the Appeals Council vacated the October 21, 2008 ALJ decision and proceedings. remanded the case (Def.’s Br. at 3.) to a new ALJ for further On March 20, 2012, following another hearing, the new ALJ issued a decision finding that Plaintiff was not entitled to disabled adult child’s benefits. (Def.’s Br. at 3.) Plaintiff timely filed exceptions to that decision with the Appeals Counsel on April 17, 2012. Br. at 3.) (Def.’s While a decision from the Appeals Council was still pending, Plaintiff commenced the instant action. (Def.’s Br. at 3.) DISCUSSION Defendant now seeks to dismiss this action for lack of subject matter jurisdiction. The Court will first address the applicable legal standard before turning to Defendant’s motion more specifically. I. Standard of Review “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) 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). resolving a motion jurisdiction, materials to the Court beyond questions. the dismiss may for lack consider pleadings to of subject affidavits resolve In matter and other jurisdictional See Morrison v. Nat’l Australia Bank, Ltd., 547 F.3d 167, 170 (2d Cir. 2008). The Court must accept as true the factual allegations contained in the complaint, but it will not draw argumentative inferences in favor of Plaintiffs because subject matter jurisdiction must be shown affirmatively. See id.; Atlanta Mut. Ins. Co. v. Balfour Maclaine Int’l Ltd., 968 F.2d 196, 198 (2d Cir. 1992); Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Makarova, 201 F.3d at 113. II. The Commissioner’s Motion to Dismiss Before a court may properly consider a decision of the Commissioner, § 405(g) requires that available administrative remedies. a claimant exhaust all See Maloney v. Harris, 526 F. Supp. 621, 622 (E.D.N.Y. 1980), aff’d, 657 F.2d 264 (2d Cir. 1981). Even then the Social Security Act authorizes a civil action only to review a “final decision of the Commissioner of Social Security made after a hearing . . . .” 42 U.S.C. § 405(g). What constitutes a “final decision” is defined by the Commissioner’s regulations, Weinberger v. Salfi, 422 U.S. 749, 766, 95 S. Ct 2457, 2467, 45 L. Ed. 522 (1975), which establish the administrative process for obtaining a final decision subject to judicial review, 20 C.F.R. § 416.1400(a). Courts have usually deferred to the policy reasons behind this administrative scheme, noting that “an interpretation that would allow a claimant judicial review simply by filing and being denied a petition to reopen his congressional purpose . . . .” claim would frustrate the Califano v. Sanders, 430 U.S. 99, 108, 97 S. Ct. 980, 986, 51 L. Ed. 2d 192 (1977). Here, there is no final decision because the Court remanded to the ALJ, Plaintiff then filed exceptions to the ALJ’s decision, and the Appeals Council apparently assumed jurisdiction but did not render its own decision or remand to the ALJ. See 20 C.F.R. §§ 404.983-404.984; see also Jackson v. Asture, No. 09-CV-1290, 2010 WL 3777732, at *1 n.1 (E.D.N.Y. Sept. 21, 2010) (“When a case is remanded by a district court and, in turn, to an ALJ for further proceedings, the decision of the ALJ constitutes the final decision of the Commissioner unless the Appeals Council thereafter assumes jurisdiction (1) at the claimant’s request, or (2) absent such request, in its discretion within 60 days after the ALJ’s decision.”). Defendant’s submissions demonstrate that Plaintiff requested that the Appeals Council take jurisdiction and that the appeal is still currently pending.3 Entry 22, ¶ 4(j) & Ex. 9.) state of affairs. before the Plaintiff has not disputed this Accordingly, there is no “final decision” Court, jurisdiction. (See Ortiz Decl., Docket therefore depriving it of subject matter See, e.g., Perez v. Apfel, 22 F. App’x 67, 67 (2d Cir. 2001) (“Perez filed her complaint while her request for review of the ALJ’s Appeals Council. administrative court lacks Martin v. decision was still pending before the Appellant has therefore failed to exhaust her remedies subject Astrue, and, matter No. as a consequence, jurisdiction 07-CV-0928, 2008 over WL the her district claim.”); 314524, at *3 (N.D.N.Y. Feb. 4, 2008) (holding that the court lacked subject matter jurisdiction because the plaintiff filed her complaint only seven days after the ALJ’s decision and she therefore did not give the Appeals Council the opportunity to potentially assume jurisdiction). CONCLUSION For the foregoing reasons, the Commissioner’s motion is GRANTED and this action is DISMISSED WITHOUT PREJUDICE for lack Defendant indicates that the Appeals Council may have discontinued its review until this Court has made a determination. (See Docket Entry 26.) There is no indication, however, that the Appeals Council has denied review or decided the case. 3 of subject matter jurisdiction. The Court certifies that 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 for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444—45, 82 S. Ct. 917, 920, 8 L. Ed. 2d 21 (1962). The Clerk of the Court is directed to amend the docket to reflect that Carolyn W. Colvin is now the Social Security Commissioner, to mark this matter CLOSED, and to mail a copy of this Memorandum and Order to pro se Plaintiff. SO ORDERED. /s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J. Dated: September 3 , 2014 Central Islip, NY
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