Papadopoulos v. Commissioner of Social Security, No. 1:2010cv07980 - Document 27 (S.D.N.Y. 2011)
Court Description: OPINION: Accordingly, because this Court lacks subject matter jurisdiction over Plaintiff's FTCA claim, that claim is dismissed. Because Plaintiff's causes of action under the FTCA, Bivens, Section 1983, and RICO fail as a matter of law, Pl aintiffs motion for summary judgment as to those claims is denied and those claims are dismissed. The Court therefore does not reach Defendant's alternative contention that Plaintiff's non-Social Security claims should be dismissed as frivolous. For the reasons set forth above, this case is remanded for further evidentiary proceedings and Plaintiff's non-Social Security claims are dismissed.(Signed by Judge Robert W. Sweet on 11/1/2011) (djc) Modified on 11/2/2011 (djc).
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK GREGORY PAPADOPOULOS, Plaintiff, 10 Civ. 7980 (RWS) against- OPINION MICHAEL J. ASTRUE, Commissioner of social De -----------x Sweet, D.J. Plaintiff "Plaintiff") seeking has moved Social Commissioner, has Gregory for Papadopoulos summary ( "Papadopoulos" judgment in disability benefits. Mi Astrue, ("Defendant" for disability review the benefits Plaintiff's non- as Commissioner's well as for or action Security "Commissioner") decision an s Social cross petitioned both for an order dismissing claim t or order aintiff's denying him dismissing al Security causes of act These motions were marked fully submit 2011, and August 10, 2011, respectively. on July 20, For the reasons set forth below, this case is remanded evidentiary proceedings and Plaintiff's non-Soci Security claims are dismissed. I. Prior Proceedings and Facts Alleged Plaintiff earned a Master's of Business Administration from columbia University with honors the president and owner of a 28, 79-80, date financi company. t Due to the dates 177.)1 the activity, 83, and previously worked as that Plaintiff s was On November 24, PI 2008, (Tr. 2000. fits, was disabled due to severe vein problems on both 1 working in 2000 closing of the Specifically, he due company all 70, 72.) In a form completed as Plaintiff alleged that he sion, high blood pressure, and (Tr. to (Tr. for ing that he was disabled 62 71.) part of his application insured ntiff protectively applied for disability insurance benefits, all as of January 1, previous work last disability insurance benefits was June 30, 2001. (Tr. both that that 78.) his he in He stated the he stopped medical owned. 1998 or condition (Tr. 1999, Citations to the administrative record are denoted "Tr.U 2 and 63, the the 78. ) Federal ion Bureau of Invest that was the end of "[s]ince 1998, conspirators, (the (Tr. it." and as I can not "FBI") a "shut down my business and 178.) Plaintiff result stated harassment by [sic] do anything right,lI he could "only think about getting even," and he was extremely depressed. He also 101. ) some leged that he had a shoulder injury. (Tr. (Tr. 99, 101. ) In other reports to the Social Security Administration, Plaintiff indicated that he was evaluated by Dr. Ishman in 2008 for depression and other medical conditions and that he received treatment at Memorial Sloan-Kett ng and Mount Sinai Hospital in 1991 and 1995 for a non-cancerous lung tumor. (Tr. 80 83 I 89-90.) medical Plaintiff affirmed that or informat about his conditions and that he was not scheduled to see any medical source. stated that he received treatment three doctors, (Tr. 84.) no one else had for depress (Tr. 82, 90.) in 2000 He from but he did not recall their names or addresses. He further stated that one of the three doctors was a court appointed psychiat st who told him that he was paranoid. Id. 3 Plaintiff's application was INSUFFICIENT ASSESS social securi initially denied on basis (medical evidence of record] CLMT. FUNCTIONING PRIOR TO THEREFORE CLAIM DENIED AS SUCH." On February 9, proceed without that "THERE IS of last insurance], (Tr. 36). a 2010 At that hearing, right to representation, benefits IN FILE TO ADEQUATELY [date hearing Administrative Law Judge Mark Solomon 176-78). disability (the was held before (Tr. 16 34, "ALJ") ALJ advised Papadopoulos of his and aintiff stated that he wished to (Tr. represent at Plaintiff 18-21.) testified that after he started complaining about harassment by the FBI, 2001), five and prior to date he was last he saw a psychiatrist times at the (Tr. divorce. demand of (June (the "First Psychiatrist") his former wife, aintiff 24 26.) insured alleged prior that 30 I four or to ir the rst Psychiatrist prescribed him medication and assured him that drugs would "make FBI go away." (Tr . PI 24 - 2 5 . ) ntiff further testified that he saw a second psychiatrist (the "Second Psychiatrist") (Tr. 25.) lethargic. names of who ei of prescribed medication made him He reported that he did not remember the the two Psychiatrists, that one was located at Mount Sinai and the 4 though he reported had an office on the southwest corner of 96th street and Park Avenue. (Tr. 25 26. ) Plaintiff stated that he was not current seeing a psychiatrist or psychologist because he did not have funds that or any insurance. (Tr. 24. ) At that time, for aintiff stated that he had no money for psychiatric medications and that "no medication will make the FBI go away." The ALJ questioned (Tr. 25.) Papadopoulos respect to the First and Second Psychiat extensively sts: Q: [W] ould you 1 me to hold record open for you to try to get the names of those two doctors that you saw prior to 2001 whi you can send to me and then I'll try to those records? Unless you think they're not around anymore. That, that's up to you. A: The one, I don't know if they're around anymore. Q: Would you like the opportunity to try to see if you have the A: I can try but I don't able to find anything. Q: Okay. A: That goes 12 years back. Q: - know if I'm going to be Well, that's that's okay. 1 you what I'm going to do. 5 with A: Q: But I also don't, Your Honor, with all due respect I don't want to stall this. I applied about 14 months ago, I'm eager to take this case to the Federal Courthouse. Eager. Okay, So, so pretty much you say you don' t you'd be able to get the records? think A: I can try but I, I'd like to get going, you know, with all due respect. Q: That's, sir, it's your case. You know, I'm, you know, my job is to try to help you as much as possible by getting records I can so I can make an informed decision. *** Q: Do you sir? have any questions before we go today, A: Do you want me to try to get those names? Q: Would you like, would you like to? Well, here's - no, tell you what. Here better yet, I'll give you a chance to do that. We're going to give you an envelope with my address on it. I'll give you two weeks to get the names and sent it in and get those. I'll try to subpoena their records to see what they have. If you don't get me the names in two weeks I'll just have to go with what I have, okay? A: Urn-hum. Okay. (Tr. 30 - 3 3 . ) Papadopoulos repeatedly attempted to persuade the ALJ to permit lawsuits him to against place the FBI legal and 6 documents other pertaining proceedings to his into the record administrat this proposition, (Tr. 20 21, 27, After rejecting 31 32). the ALJ again confirmed that he was going to give Plaintiff an envelope with his name on it and two weeks to submit the names of the First and Second Psychiatrists, and that if the ALJ received those within two weeks, he would subpoena those records and make his decision based on that. From the administrat record, it does (Tr. 32 -33. ) not appear that Papadopoulos submitted the names of either Psychiatrist to ALJ. See Tr. 11.) On April (Tr. 5 15). Appeals 20, 2010, Thereafter, Council, the ALJ denied Plaintiff's claim Plaintiff which affirmed requested the decision administrative law judge on August 19, 2010. On October action. In it he 13, 2010, seeks of the as well 1871, 42 U.S.C. § Act, §§ 28 Unknown U.S.C. as 1983 relief under the filed decision pursuant to the Social Security Act, 42 U.S.C. 1383 (c) (3), by of the the (Tr. 1 3.) Papadopoulos review review § Civil the of instant the ALJ 405(g) and/or Rights Act § of ("Section 1983"), the Federal Tort Claims 1346(b), 2671-2680 ("FTCA"), s of the Federal Bureau of Narcotics, 7 Bivens v. Six 403 U.S. 388 (1971), and Racketeer Act, 18 U.S.C. §§ 1961-1968 ("RICO"). Papadopoulos' al FBI that he ifC affidavit in been the investigation for PIa luenced and Corrupt Organizations the the Palm Beach Maf of his complaint im of harassment and a corrupt last thirteen ul Family the support According Palm Beach to (alternately termed ), which he describes as a mafia-type Cuban family with interests in prostitution and drug trafficking, has together with the FBI sought to insure that he cannot work in hopes of exhausting his alleges that down Revcon, in 2000, Inc., resources. In particular, together the FBI and Fanjul Plaintiff's proprietary Plaintiff family shut firm, by ensuring Plaintiff's trades would not clear with any broker. He alleges that he therefore became been able asserts with that his example to produce the preventing to blocking him income since and that he has not that time. Plaintiff FBI and Fanjuls have additionally interfered attempts by any sabled, trading from receive his Soc mail, Security screening retaining a lawyer, interfering with the administrative process. 8 his benefits, communications, and otherwise In the following years, Plaintiff has filed a number of actions against the FBI and Fanjuls, as well as an individual named Mineeva, who Plaintiff alleges conspirator of the Fanjuls and FBI. in the Southern District States, 08 Civ. civ. _I_n_v_e_s_t~",,--_i_o_n, 4579 Florida, 10 Civ. (LAP), (RMB) New York, (RLE) , 4574 (LAP), a prostitute and co These actions include four Papadopoulos v. Papadopoulos v. Papadopoulos (LAP) , 4882 10 Civ. 11256 of is v. Federal United Mineeva, 10 Bureau of and Papadopoulos v. Fanj ul, as well as one in the Southern District of Papadopoulos v. Federal Bureau of Investigation, 01 Civ. 8659 (WPD).2 II. Plaintiff's Social Security Claims A. 1 Standard Title II of the Social Security Act provides for the payment of insurance benefits to persons who have contributed to the program and who suf 42 U.S.C. available Income 2 § to 423 (a) (1). indigent program. 42 from a physical or mental disability. These benefits are distinct from those persons under U.S.C. § the 1382 (a) . This complaint was filed on July 20, 2001. 9 Supplemental With Security regard to establishing disability under the Social Security Act( the statute provides in relevant part: [A]n individual shall be determined to be under a disability if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot ( considering his age, education( and work experience, engage in any other kind of substantial gainful work which exists in the national economy . 42 U.S.C. § In 423 (d) (2) (A). this respect, a plaintiff demonstrating disability. See Parker v. 230 31 The (2d Cir. 1980). Act bears the Harris, defines burden of 626 F.2d 225( disability as the inability to engage in substantial gainful activity by reason of a medically determinable physical or mental impairment that could be expected to result in death or that has lasted or could be expected to last for a continuous period of at least twelve months. 42 U.S.C. mental impairment" § 423(d) (1) as "an The Act defines a "physical or impairment anatomical ( physiological ( or psychological that results from abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. 10 § 423 (d) (3). The Secretary has established a evaluation C.F.R. process for Those 404.1520. § evaluating five step sequential disability steps are as claims. See First, follows: 20 the Secretary considers whether the claimant is currently engaged in substantial gainful activi ty. I f he is not, considers whether the claimant has a the Secretary next "severe impairment" which significantly limits his physical or mental ability to do basic If the claimant suffers such an impairment, work activit the third which inquiry meets regulations. or is whether equals Assuming impairment, the claimant's severe fourth one the the claimant listed in claimant inquiry impairment, he capacity to perform his past work. unable to perform his past work, an impairment Appendix does not the 1 have whether, is has has a the listed despite residual Finally, of the functional if the claimant is the Secretary then determines whether there is other work which the claimant could perform. v. curiam) i Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per see also Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987).3 The claimant bears the burden of proof at the first four steps, e, through the determination of his ability to perform his past relevant work despite a severe impairment. The Secretary has the burden as to the last step, i.e., the determination of the claimant's ability to perform other work available in the national economy. See, , 675 F.2d at 467; 638,642 (2d Cir. 1983). 3 11 The Social Security Act provides that upon review of the Commissioner's decision, enter, upon the pleadings judgment affirming, "[t] he and modifying, have power to of the record, a or reversing the decision of the with or without remanding the 42 U.S.C. ff shall transcript Commissioner of Social Security, cause for a rehearing. court 405(g) § During judicial review, "the findings of the Commissioner of Social Security as to fact, any if aside if (1971). it substantial cir. 1996) by substantial evidence, shall be ." Id.; see also Richardson v. Perales, 402 U.S. conclusive. 389, 401 supported is The Commissioner's decision should only be set '" based upon evidence.'ff legal Pratts v. (quoting error or Chater, 94 not supported by F.3d 34, 37 (2d v. Schweiker, 675 F.2d at 467» Substanti evidence in this context has been defined as "'more than a mere scintilla. It means such relevant evidence as a reasonable conclusion. If' Id. mind at might 401 accept (quoting NLRB , 3 0 5 U. S. 197, 22 9 (193 8) ) . substantial evidence, courts as adequate Consolidated to support Edison Co. a v. When reviewing the record for "'review the record as a whole. This means that in assessing whether the evidence supporting the Secretary's position is substantial, we will not look at that evidence in isolation but rather will view it in light of other 12 evidence 122 that (2d Cir. detracts 1990) Human Health Moreover, from it. '" son v . (quoting Services, Sullivan, New York v. 903 904 F. 2d Secretary of F.2d 122, substitute "[t] he court may not 126 (2d Cir. 1990)). its own judgment for that of Secretary, even if it might justifiably have reached a result dif 949 F.2d 57, marks ("It 59 omitted) i is not de novo review." (2d Cir. 1991) see Parker v. the novo whether upon a also function of Jones v. Sullivan, (citation and internal quotation a Harris, reviewing 626 court F.2d at 230-31 to determine de claimant is disabled."). B. Discussion In this case, sequential evaluat step one, the the procedure. ALJ found gainful onset date, through June 30, there were no substantiate impairment that (Tr. 10.) the there were the Plaintiff 2001, or stence the of relevant period. no medical records 13 1520 (a) (4). not engaged 2000, his At in leged the date he was last insured At the second step, signs Commissioner's § had activity from January 1, medi during applied See 20 C. F. R. that substantial for benefits. ALJ a to the ALJ found that laboratory findings medically (Id.) The to determinable ALJ substantiate Plaintiff's allegations of a impairment, impairments combination severe that i.e., an his or limited his significantly ability to perform work-related activities, 2001. impairment prior to June 30, (Tr. 10-12.) The ALJ concluded that Plaintiff had not met burden at period at step issue, two and, thus, January I, 2000 was not disabled through June 30, for 2001. the (Tr. 12. ) An impairment determinable, mental or and 2) physical is imposes § §§ 404.1520 (a) (4) (ii) when it is 1) medically significant limitations to ability activities. See 20 C.F.R. C.F.R. "severe" basic perform 404.1508, ("At the on the work related 404.1521(a)i see also 20 second step, we consider the medical severity of your impairment(s). If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement not disabl . ") . Medical . we will find that you are evidence is necessary at step two, which is underscored in the Commissioner's administrative ruling SSR 85 28, which states: A determination that an impairment(s) is not severe requires a careful evaluation of the medical findings which describe the impairment(s) and an informed judgment about its (their) limiting fects on the individual's physi and mental ability(ies) to perform basic work activities; thus, an assessment of function is 14 inherent in the medical evaluation process itself. At the second step of the sequential evaluation, then, medical evidence alone is evaluated in order to assess the effects of the impairment (s) on ability to do basic work activities. SSR 85-28. In this case, the following medical record evidence exists for the period prior to the alleged onset of disability, January Kettering 1, 2000: Cancer Treatment Center records regarding the from removal Memorial of lipoma in 1992 and follow-up evaluations in 1993. No medical record evidence exists for a Sloan bronchial (Tr. 112 - 3 3 . ) the period at issue-January 1, 200 to June 30, 2001. The following medical record evidence exists from after the date of last insurance on June 30, 2001: Treatment notes from Mount Sinai Hospital indicate that Plaintiff underwent surgical treatment of a right inguinal hernia on August 5, 2005 (Tr. 137-39) and that he underwent left shoulder rotator cuff surgery on July 5, 2007. 15 (Tr. 135 36.) On April 17, 2008, Dr. Raymond Ishman the Ishman Center for Age Management, noted his review of available records and phone conversations Ishman observed that hypertension and Plaintiff's past bronchial 1 ipoma (Id. ) Dr. with Plaintiff's past medi colon polyps surgical and history Ishman diagnosed and July examination of 8, the and he including two unsuccess Plaintiff was overweight. On as 1 04 05.) Dr. history included 104), hypertension, osteopenia, (Tr . Plaintiff. rotator Plaintiff identified removal cuff with hyperlipidemia, of a surgeries. andropause, and found that (Id.) Dr. 2008, Ishman Plaintiff. performed (Tr. 105-07.) a physical Papadopoulos reported that he had been under excessive stress over the past nine months due to a failed relationship, (Tr. 105.) some depression. was Dr. alert and well-appearing, distress. (Id. ) testosterone, Dr. human chorionic cypionate, Lotrel, oriented, and depression, (Tr. gonadotropin Wellbutrin, 106.) (HCG) , aintiff no acute andropause-low bone density, and left ventricular Dr. Ishman prescribed Arimidex, Finasteride, 16 in diagnosed osteopenia low dyslipidemia-high cholesterol, hypertrophy-enlarged heart. Ishman reported that Ishman hypertension, and he complained of and testosterone supplements. (Tr. 106.) Dr. Ishman's final note, dated November 17, 2008, indicates that Plaintiff dropped out of the program due to lack (Tr. 107.) funds. In an undated letter to analyst, Dr. the state agency disability Ishman wrote that he had examined Plaintiff once, and had several phone conversations with him. (Tr. Ishman which prescribed Wellbutrin for depression, indicated he had been on in the past. (Id.) Dr. that he did not see Plaintiff for depression, the expertise depression or to any substantiate other reason, complete any disability forms. On December a 26, claim and he Plaintiff I shman stated he did not have of disability did not Dr. to psychologist L. (Id.) 2008, Meade concluded that state agency there was a consultative Commissioner. 2009, psychiatric (Tr. 154-57.) Haruyo Fujiwaki, evaluation Plaintiff (Tr. insufficient upon which to determine that Plaintiff was disabled. On December 2, for intend Meade completed a psychiatric review technique form. 53.) Dr. 103.) at the evidence (Tr. 140.) ph.D. performed request reported 140 that of the he was obliged to close his business due to a conspiracy and that he 17 saw a psychiatrist in a private office on a weekly basis for two months in 1998, Papadopoulos due to depression. reported that he (Tr. had Specifically, 154. ) been suffering from "psychological trauma inflicted upon him by the FBI" and that as a result his depression had worsened. Id. that had been monitoring Plaintiff conveyed that the FBI Dr. Fujiwaki noted his telephone communi cat , put cameras outside his house, tri sabotage his business, harassed his son, and caused the divorce from his (Id. ) wi depressive disorder disorder NOS i (Tr. 157.) that, simple Dr. not Fujiwaki otherwise schizophrenia, diagnosed specified paranoidi vocationally, directions independently, ("NOS") Dr. i with anxiety dependence. Fuj iwaki concluded aintiff was able to follow and understand and and Plaintiff and alcohol Based upon this examination, to instructions, maintain attention perform and simple tasks concentration to a certain extent; but he may have difficulty maintaining a regular schedule, learning new tasks, making appropriate decisions, performing complex tasks, due to persecutory delusions, and and may have difficulty relating with others and dealing with stress appropriately. (Tr. difficulties were dependence. Id. 156.) Dr. Fujiwaki stated that Plaintiff's caused by psychotic symptoms and alcohol He further concluded that the results of the examination appeared to be consistent with psychiatric problems 18 and substance abuse problems, and these may significantly interfere with Plaintiff's ability to function on a daily basis. (1d. ) As diagnoses Defendant and impairment concedes, opinion which Dr. indicate significantly Fujiwaki's that Plaintiff limited his basic work-related activities by that time. examination, had ability a mental perform Summ. (Def. to J. Mem. 13; see also Tr. 154-57.) On the same date, at the request of the Commissioner, Plaintiff was examined by Dr. physician. (Tr. complaint as 161-64.) "I suffer Robert Dickerson, a consultative Dr. Dickerson noted Plaintiff's chief from a psychological trauma inflicted upon me by federal agents" as well as his history of high blood pressure and other heart disease. no medical problems due to (Tr. 161.) hypertension. Plaintiff reported (Id.) Dr. Dickerson diagnosed Papadopoulos with depression and post-traumatic stress syndrome, and concluded that he had no physical 1 imi tations . (Tr. 163 - 64 . ) Thus, the record reflects a twelve-year gap in medical treatment that encompassed the period from January 1, 2000, when Plaintiff alleges his disability began, 19 through June 30, 2001, when Plaintiff was last insured for disability insurance benefits. Defendant properly found determinable 10 12.) argues that that this Plaintiff did not The Commissioner correct lS at issue because Arnone v. Bowen, 404.131 § insured status in There basis ent his led to without more, Dr. zophrenia, See Tr. that the evidence of period present 1989) disability, 1977 benefits./I (Tr. NOSi ("regardless unless Arnone s date last insured], (citations Fujiwaki's report, disorder, paranoid (2d Cir. i omitted)). which diagnosed anxiety disorder, 154-57), cannot serve NOSi as a a disability finding before June 3D, 2001. Instead, are gaps issue. ("you must have disability 882 F.2d 34,37-38 Plaintiff with depress and medically the end of (a) became disabled before March 31, be a quarter in which you become disabled") seriousness cannot ALJ iff had to be insured when his disability See 20 C.F.R. he the 2001 cannot serve as the disability basis for a finding the have impairment during the period at iff's disability after June 30, of reason, remand is the administrat appropriate record . 20 here . " \ Where there . we have, on numerous occasions, remanded to the development of the evidence.' (quoting Parker original) i 1999) gaps the Sobolewski, Pratts v. 1/ Harris, 626 see also Rosa v. (same) i in v. [Commissioner] F.2d Callahan, 985 administrative F.Supp. record, for Chater, at 94 39 (alteration 235) F. 3d at in 168 F. 3d 72, at 314 remand further 82 (2d Cir. ("Where there are to the Commissioner for further development of the evidence is in order.ff) . "It is the rule judge in a in trial, light benefits of our circuit that must 'the proceeding,' even Pratts v. Chater, counsel. Secretary of HHS, if F.3d 41, 168 47 F.2d 751, F.3d (1996). 755 770, 774 (2d Cir. nature a represented is of by (quoting Echevarria v. (2d Cir. (2d 1982)) i Cir. 1999) i 1999) i see also v. Chater, Perez v. Rosa 77 The regulations describe this duty stating we make a determination that are not ed, [and] will make every reasonable effort to help you get medical from permission to develop your complete medical you di reports we will 79 claimant 94 F.3d at 37 685 F.3d 72, "[b]efore that, non-adversarial the 167 Callahan, unlike a firmatively develop the record' essentially 11 'the ALJ, your own request the medical sources reports. The regulations also state that, 11 20 history when C.F.R. you § give us 404.1512(d). "[w]hen the evidence we receive 21 from your treating physician or other medical source is inadequate for us to determine whether you are disabled, [w]e will first recontact your treating physician. medical source to determine whether available." we need is readi Defendant notes Papadopoulos complained to Dr. or was the additional 20 C.F.R. that there § is no evidence (See Tr. that Ishman that he had been harassed ct im of a conspi Fuj iwaki. information 404.1512(e). against by the FBI 104-07), while one year later, Plaintiff voiced to Dr. . or other 154.) (see Tr. se complaints Defendants argue that \\ [t] his suggests that plaintiff's impairment became severe or disabling from 2008 to 2009, benefits." (Def. several years after he was last insured for Summ. J. Mem. 13.) This is speculation at best, given the multi year gap in the record. While submit medical relevant the ALJ evidence period, the provided of ALJ his had Plaintiff disability an lop the administrative record. further steps troubling in 1 to develop of the record for the relevant period, opportunity pertaining affirmat to obligation to the to That the ALJ did not take record the obvious an here is in medical particul evidence of Plaintiff's testimony not only 22 regarding the possibili one treating medication physician to "make of relevant medical evidence including who the aintiff FBI go away I testified but II proscribed also Papadopoulos I testimony relating to where those doctors were located, as the ALJ's clear In iently Specif ically, information, relevant of the potential to develop the to ALJ make led any the ALJ failed import of appropriate to obtain any, let the record determination. alone adequate from two possible treating psychiatrists during the period. Accordingly, the ALJ failed duty in Plaintiff's case. See Pratts v. Because would so plainly help "further findingsll proper disposition of Papadopoulos' in this case. as well (Tr. 30 - 3 3 . ) 4 those records. suff understanding him claim, Chater, to fulfill his 94 F.3d at 37. to assure the remand is appropriate Id. at 39. 5 Additionally, the first of Plaintiff's many cases against the FBI was filed in July of 2001, not long after the date of his last insurance. While this fact is not part of the administrative record and is in any event insufficient to demonstrate a disability, as non medical evidence from outside of the relevant period, it underscores the need for the ALJ to construct a full record of the relevant period in order to ensure the proper disposition of Plaintiff's claim. S The Commissioner argues that remand is not appropriate in order to consider new and material evidence on a showing of good cause. However, '" [tlhis is a case where the Court has found that the ALJ failed to develop a sufficient record to determine whether there is substantial evidence to support the denial of the plaintiff's claim of disability. It is not a case where the Commissioner [or claimantl seeks a remand for the consideration of new and material evidence which was omitted from the record for good cause.'ff Rosa v. Callahan, 168 F. 3d at 83 n.8 (quoting 1998 WL 150996, *9 (S.D.N.Y. March 31, 1998)). 23 III. Plaintiff's Remaining Claims For the Social Security A. reasons set forth below, Plaintiff's aims are dismis Legal Standards ially A ficient complaint may be di ssed for lack of subject matter jurisdiction under Rule 12 (b) (1) asserted basis Patents L. P. 367 68 (S.D.N.Y. 970 non- F. for v. Supp. is sdiction Int' 1 2000) 246, jurisdiction j Bus. 249 v. (S.D.N.Y. challenged, Gaskill, omitted) . not Machs. Peterson v. i jurisdiction rests with Thomson is ¢ sufficient. 121 I the ines, Once burden See F.Supp.2d Continental 1997). if the subject of 349, Inc., matter establishing party asserting that it exists. 315 U.S. party asserting 442, subject 446 (1942) matter court has subject matter jurisdiction. United State, 201 F.3d 110, 113 (2d Cir. 2000) See (citations jurisdiction has the burden of proving, by a preponderance of the evidence, the TM See i Makarova that v. see also Gallo Internal Revenue Serv., 950 v. United States 24 F. Supp_ 1246, 1248 _ _ _ _ _ _ _ _L -_ _ _ _ _ _ _ _ _ _ (S.D.N.Y. 1997) ~_ ,21 F.3d502, 507 (2dCir. 1994)). In considering a 12(b) (6), the (citing Robinson v. Overseas Court motion to dismiss pursuant construes the complaint to Rule liberally, "accept all factual legations in the complaint as true, and drawing I inferences reasonable Chambers v. Time Warner, (citing Gregory v. Though the court complaint as true, the plaintiff's Inc., 282 F.3d 147, 152 Daly, must in 243 F.3d accept 687, the 691 factual v. Twombly, 550 U.S. 544, 555 (2007)). must true, \ state to face. '" contain Iqbal, (2d Cir. 2001)). a it is "not bound to accept as true a 129 S. Ct. 1937, 1949 (2009) complaint (2d Cir. 2002) allegations conclusion couched as a factual allegation." U. S. II a suffic (quoting Bell Atl. To survive dismissal, factual claim to f 129 S.Ct. at 1949 Ashcroft v. Iqbal, that matter, is accepted as ausible (quoting "a on its 550 U.S. at 570). In other words, plaintiffs must allege sufficient facts to "nudge [ plausible. their II claims ~~~~, across the line from conceivable to 550 U.S. at 570. In addressing the present motion, the Court is mindful that Papadopoulos is proceeding 25 se. "Since most pro se plaintiffs lack familiarity [courts] requirements, liberally, applying a sufficiency than N.Y., 232 F.3d compliance (2d Cir. when Bd. (2d Cir. the pleading complaints a Elections 2000). their complaint in City of Courts "interpret st arguments that they v. Coombe, 174 F.3d 276, 279 (2d Cir. v. Hopkins, 14 F.3d 787, 790 (2d Cir. evant 2006) se reviewing st "pro se status with of standard to evaluate would 'to raise Triestman v. law. '" flexible 139-40 Burgos However, pro construe ~~~----------~--~ (quoting 1994)) . formalities Lerman v. II McPherson suggest. '" 1999) more 135, [pro se pleadings] must [they] submi t ted by counsel. with Fed. rules 'does not of a party from procedural Bureau of Prisons, (quoting Traguth v. Zuck, and substantive 470 F.3d 471, 710 F.2d 90, 95 477 (2d Cir.1983)). B. Discussion i. Bivens Claims At jurisdiction the over States or FBI action is the threshold, any the B --- claim lacks made subject against of Social 26 Security. matter the The only named defendant in this case. Commiss Court At ted in s the same time, the complaint liberally could includes be allegations construed as that when alleging interpreted that Plaintiff's constitutional rights were violated by the FBI. Under the doctrine of sovereign immunity, the United States "is immune from suit save as it consents to be sued . and the terms of its consent to be sued in any court define that court's suit. jurisdiction to entertain the Mitchell, 445 U.S. omitted) . federal 535, Accordingly, lack courts 538 (1980) absent (citation and quotation marks a subject United States v. 1I waiver of matter sovereign immunity, jurisdiction over a plaintiff's claims against the United States. See FDIC v. Meyer, 510 U.S. 471, 475 (1994). Courts may not find sovereign immunity to exist unless Congress has expressed' States, v. [the waiver] 355 F.3d 144, Nordic ViII in 150 Inc., ------------------~~------- absence of such Makarova v. Sovereign a United immunity statutory (2d Cir. 503 text. 2004) U.S. 30, 33 the court lacks States, 201 F.3d 110, applies waiver of "'unequivocally Adeleke v. United (quoting United States waiver, protection II a not (1992)). In jurisdiction. 113 only (2d the See Cir. 2000). the United to States per se, but also to "a federal agency or federal officers [acting] in their official capacities. IJ v. Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994). 27 Overseas In Bivens, 403 U.S. 388, the Supreme Court recognized a private cause of action for damages against a federal official his personal capacity for conduct violating the Constitution. However, the United States has not waived its sovereign immunity with respect to constitutional claims seeking money damages that are brought directly against the United States. 21 F.3d at 510. federal In addition, officers in the See Robinson, " [b]ecause an action against. official capacities is essentially a suit against the United States, such suits are also barred under the doctrine waived." Id. of sovereign Bivens unless such immunity is (citations omitted) . Accordingly, a immunity, to the extent that Plaintiff is asserting claim against the FBI or the United States, it is dismissed for lack of subject matter jurisdiction. ii. RICO and Section 1983 Claims Similarly, the Court lacks subject matter jurisdiction over Plaintiff's RICO and 42 U.S.C. § 1983 claims because neither statute waives the Government's sovereign immunity. 28 It is well established that the United States has not consented to suit under Section 1983. & Surveillance Commc'n (S.D.N.Y. 2006). Networks, -----..!.--='- 409 F. , Jones v. Nat'l Supp. 2d Section 1983 provides a cause 456, 466 action when plaintiffs are deprived of constitutional rights by any person acting "under color custom, or usage, of any statute, ordinance, regulations, of any State or Territory of the District of Columbia." 42 U.S.C. § 1983. Federal defendants act under color of federal law, not state law, and thus are not subject to suit under Section 1983. Veterans Affairs, properly dismissed v. 1991) Nghiem 323 Fed. respect to Nghiem's state actors, See §§ v. App'x 16, 18 them because these Prisons, 937 lie against federal officers." Dep't 1991) ("With apply only the United immunity with respect (citations omitted)); F.2d 26, 30 to 42 U.S.C. n.4 § (2d Cir. 1983 cannot States to has RICO not claims. waived See Jones, 409 F. Supp. 2d at 466. 29 its United States v. Bonanno Organized Crime Family of La Cosa Nostra, i to (citations omitted)). kewise, F.2d 20, 22-26 (2d Cir. 1989) of the district court statutes and not federal officials." Bureau of States (2d Cir. 1981 and 1983 claims, ("An action brought pursuant sovereign United 879 Accordingly, Plaintiff's Section 1983 and RICO claims are dismissed. iii. FTCA Claims The FTCA provides that "a suit against the United States is the exclusive remedy for a suit for damages for injury \ resul ting from any employee the negl igent or wrongful F. Supp. 2679(b) (1) 608-09 c ing Cir. Hightower v. " 2d 146,153 and (2d or omissions of the Government while acting within the scope of his office or employment' 205 act (S.D.N.Y. Rivera 1991)). v. "The 2002) United FTCA United States, (quoting 28 U.S.C. States, requires 928 that F.2d a § 592, claimant exhaust all administrative remedies before filing a complaint in federal Ctr., 403 2675 (a) the court./I F.3d Celestine 76, 82 v. (2d Mt. Cir. Vernon 2005) i see Health also 28 U.S.C. § ("An action shall not be instituted upon a claim against unless United States the claimant shall have first presented the claims to the appropriate federal agency."). The for claims Social against Securi ty Act. Security the Act government Section 405 (h) precludes arising FTCA under expressly forecloses 30 jurisdiction the Social FTCA claims against the Government U. S. c. under 28 1346 based upon the § wrongful withholding of benefits under the Social Security Act. See 42 U.S.C. the § Secretary, 405 (h) or ("No action against any officer or the United States, employee thereof shall be brought under section 1331 or 1346 of title 28 to recover on any claim arising under [Title IIJU). Moreover, even if such a claim were permissible, there is no jurisdiction under the FTCA unless filed an administrative claim, which See 28 U.S.C. § 2675(a). Plaintiff has first aintiff has failed to do. The requirement that an administrative claim be filed and finally denied "is jurisdictional and cannot be waived. u Keene Corp. v. United States, 700 F.2d 836, Cir.) (citation omitted), cert. denied, 464 U.S. 864 also See Robinson, Celestine, 403 21 F. 3d at 510. F.3d at 82 administrative claim was filed. Further, (1983) (citations Plaintiff has not 841 (2d see i omitted) alleged that i an the Commissioner has provided declarations evincing that neither the Social Security Administration nor the FBI has been able to locate such a claim in its records. See Decl. of Mark Ledford Decl. of Susan Harrison 1 (Dkt. No. 23).) 31 2 (Dkt. No. 22) i Accordingly, jurisdiction over because this aintiff's Court FTCA lacks claim, subj ect matter that claim is dismissed. iv. Conclusion Because Plaintif f' s Bivens, Section Plaintiffs motion 1983, for and causes of action under the RICO summary fail as a judgment as to denied and those claims are dismissed. not reach Defendant's alternative matter those of FTCA, law, claims is The Court therefore does contention that Plaintiff's non-Social Security claims should be dismissed as frivolous. Conclusion For the reasons set forth above, this case is remanded for further evidentiary proceedings and Plaintiff's Security aims are dismissed. It is so ordered. New York, NY November / ' 2011 U.S.D.J. 32 non-Social
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