Opinion
22-CV-8640 (JMF) (BCM)
01-22-2024
LINDA M. TRAVIS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION TO THE HONORABLE JESSE M. FURMAN
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Linda M. Travis received disability insurance benefits from the Social Security Administration (SSA) from 2018 until April 2022, when her payments were suspended. In May 2022, plaintiff submitted a Request for Reconsideration to the SSA, and in June 2022 she submitted a Request for Hearing by an Administrative Law Judge (ALJ). In October 2022, plaintiff filed this action against the Commissioner of Social Security (Commissioner), pursuant to § 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g), seeking immediate judicial review of the suspension of her benefits. In her complaint, plaintiff reported that she had received no response to her Request for Reconsideration or her Request for Hearing. Additionally, she alleged that the suspension was discriminatory, explaining that she had "just come out as a transgender woman prior to Social Security stopping my benefits."
In January 2023, the SSA acted favorably on plaintiff's May 2022 Request for Reconsideration, reinstating her benefits retroactively to April 2022 and issuing a substantial payment for past-due benefits. However, because plaintiff had been enrolled in Medicare Part B at the time of the suspension (and had been paying the premiums via automatic withholding from her disability benefits), and because her Medicare policy remained in effect until September 2022, (when it was cancelled for nonpayment of premiums), the SSA withheld from her past-due award the sum of $680.40, representing her Medicare Part B premiums for the period May-August 2022.
In February 2023, plaintiff filed another Request for Reconsideration with the SSA, this time contesting the $680.40 deduction. In March 2023, the SSA denied that Request for Reconsideration, ruling that the $680.40 in past-due Medicare premiums was properly withheld.
Now before me for report and recommendation (see Dkt. 10) is the Commissioner's preanswer motion (Dkt. 26) to dismiss the case pursuant to Fed.R.Civ.P. 12(b)(1). The Commissioner argues that the Court lacks subject-matter jurisdiction because plaintiff does not seek review of any "final decision" by the SSA, as required by the Act. In the alternative, the Commissioner argues, the case should be dismissed as moot because plaintiff's benefit payments have resumed. Plaintiff opposes the motion and seeks leave to further amend her complaint. For the reasons that follow, I respectfully recommend that defendant's motion be granted and that plaintiff's complaint be dismissed without leave to amend.
I. BACKGROUND
The following facts are taken from plaintiff's pleadings, including their attachments, and from the Declaration of Andrea Wilder, an Assistant Regional Commissioner of the SSA (Wilder Decl.) (Dkt. 28), which serves to authenticate and place before the Court the relevant portions of the SSA's administrative record.
When considering a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), "a court 'may refer to evidence outside the pleadings.'" Eichie v. Kuakazi, 2023 WL 1438327, at *1 (S.D.N.Y. Feb. 1, 2023) (quoting Markova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). Alternatively, the court may take judicial notice of the contents of the SSA's records. See Combier-Kapel v. Biegelson, 242 Fed.Appx. 714, 715 (2d Cir. 2007) (summary order); Miller v. Saul, 2020 WL 5899520, at *3-5 (S.D.N.Y. Jan. 10, 2020) (recommending dismissal of action as time-barred pursuant to Rule 12(b)(6) after taking judicial notice of relevant portions of SSA record), report and recommendation adopted, 2020 WL 4365284 (S.D.N.Y. July 30, 2020).
A. Plaintiff's Benefits are Suspended
On June 5, 2019, the SSA determined that plaintiff was disabled and entitled to benefits under Title II of the Act as of February 2, 2018. Wilder Decl. ¶ 2(a). Plaintiff received benefits without issue until April 2022, when the agency "suspended Plaintiff's benefits . . . on the recommendation of SSA's Office of the Inspector General (OIG), due to information obtained during an ongoing investigation by that office." Id. ¶ (b). On April 18, 2022, the SSA sent plaintiff a notice informing her that:
Based on the information we have, we cannot pay benefits beginning April 2022. In order to continue receiving your benefits, a face to face interview is needed. Please contact your local Social Security office for further information.Wilder Decl. Ex. 1 (4/18/2022 Notice), at 1; see also Compl. (Dkt. 2) at ECF p. 11 (excerpt of same). The notice informed plaintiff that the SSA would "continue to charge a monthly premium for . . . medical insurance under Medicare" and would "send [the] first bill for the premiums within a month." 4/18/2022 Notice at 1.
The 4/18/2022 Notice also informed plaintiff that if she wished to appeal the suspension, she must do so in writing within 60 days, using form SSA-561. 4/18/2022 Notice at 2. In early May 2022, plaintiff submitted a form SSA-561 "Request for Reconsideration," objecting to the suspension of her benefits, which was timely received on May 9, 2022. Wilder Decl. Ex. 3.
Plaintiff and defendant produced different versions of the May 2022 Request for Reconsideration. Compare Amended Complaint (Am. Compl.) (Dkt. 7) at ECF pp. 10-11 (handwritten form SSA-561 dated May 2, 2022, together with U.S. Postal Service Certified Mail Receipt dated May 5, 2022) with Wilder Decl. Ex. 3 (typewritten form SSA-561 dated May 2, 2022, stamped "received" on May 9, 2022). The substance of the "reasons given" for the reconsideration request also varies somewhat between the two versions of the form. However, the present motion to dismiss does not require this Court to resolve these discrepancies.
On June 7, 2022, plaintiff submitted a form HA-501 "Request for Hearing by Administrative Law Judge," explaining that she wanted a hearing because her "benefits were stopped . . . with no warning," she "was not granted an appeal review," and the SSA "has not responded to my numerous requests." Am. Compl. at ECF p. 12.
The only copy of plaintiff's June 2022 Request for Hearing in the record was submitted by plaintiff herself. Wilder does not mention it. For purposes of the pending motion, however, I presume that the June 2022 Request for Hearing was in fact submitted that month.
On September 5, 2022, the SSA informed plaintiff that her Medicare Part B coverage had been stopped due to nonpayment of premiums amounting to $680.40. Am. Compl. at ECF p. 7; Wilder Decl. Ex. 2. Her last month of Medicare Part B coverage was August 2022. Id. Plaintiff does not allege - and there is no evidence in the record to suggest - that she took any action in response to the September 5, 2022 notice.
B. Plaintiff Seeks Judicial Review
Plaintiff filed this action, pro se and in forma pauperis, on October 10, 2022, using a form for seeking "review of a final decision of the Commissioner of Social Security" pursuant to 42 U.S.C. §§ 405(g) or 1383(c)(3). See Compl. at ECF p. 1. In the section of the form in which a plaintiff is asked for the date of the adverse ALJ decision and the date of the adverse decision of the SSA's Appeals Council, plaintiff wrote, "N/A," adding that she had received "no response" from the SSA. Id. at ECF p. 2. In the narrative attachment to her pleading, plaintiff made it clear that she sought review of the 4/18/22 Notice, which informed her that her "disability benefits will no longer be paid" but that "they will continue to charge a monthly premium for medical insurance under Medicare." Compl. at ECF p. 16. Plaintiff asserted that SSA never previously requested "any information from me," and alleged that "this is a direct result of some kind of discrimination penalty" related to her having "just come out as a transgender woman." Id. Plaintiff wrote that the "only alternative" to losing her benefits was "to be interrogated by an investigator" whom plaintiff believed to be the person discriminating against her. Id. Plaintiff also complained that her mother, age 91, was "threatened on a phone call" by the same investigator. Id.
On October 24, 2022, Chief United States District Judge Laura Taylor Swain issued an Order to Amend (Dkt. 5) noting that, although plaintiff used a form complaint for actions brought under § 405(g), her pleading "suggests that [she] did not exhaust her administrative remedies" or "receive a final decision from the Commissioner," and "does not set forth specific facts demonstrating that any failure to exhaust should be excused." Order to Amend at2, 4. Chief Judge Swain directed plaintiff to amend her complaint to "(a) provide the date of the ALJ's decision; (b) provide the date of the Appeals Council letter; (c) provide the date she received the Appeals Council letter; and (d) attach a copy of the Appeals Council letter to her amended complaint," id. at 5, or, in the alternative, to "include facts showing that her failure to exhaust her administrative remedies should be excused." Id.
On November 14, 2022, plaintiff filed her Amended Complaint, again using (in part) a form for seeking "review of the decision of the administrative law judge" under the Act. Am. Compl. at ECF p. 4. In the section of the form in which a plaintiff is asked for the date of the adverse decisions of the ALJ and the Appeals Counsel, plaintiff wrote that "no hearing was granted," and "I was never responded to." Id. at ECF p. 5. In her narrative attachment, plaintiff stated that she "followed all the steps and exhausted all of the administrative remedies . . . required to appeal the non-payment of my social security benefits started on April 18, 2022," id. at ECF p. 1, and attached copies of the relevant documents. Id. at ECF pp. 7-11. Plaintiff also reiterated her discrimination allegations, id. at ECF pp 1-2, citing the Fourteenth Amendment and 18 U.S.C. § 1983 (which the Court construes as a reference to 42 U.S.C. § 1983, governing civil actions against persons acting under color of state law for deprivation of constitutional rights). Her narrative articulates a single "Demand: To Reinstate my disability benefits and any retroactive benefits that have been withheld since April 2022." Id. at ECF p. 2.
C. Plaintiff's Benefits are Reinstated
On January 12, 2023, the SSA granted plaintiff's May 2022 Request for Reconsideration and notified her that it was resuming her disability benefit payments, retroactive to April 2022. Wilder Decl. Ex 4 at ECF pp. 4-5. The SSA stated that plaintiff would "receive payment in the amount of $19,765 which represents what you are due from April 2022 to the present," but that "$680.40 will be withheld for owed Medicare Part B premiums." 1/12/23 Notice at ECF p. 4. On January 17, 2023, the SSA sent plaintiff a similar notice, containing the same information about her retroactive benefits and the $680.40 being withheld, and adding that she would receive $2,365 per month from January 2023 forward. Wilder Decl. Ex 4 at ECF pp. 1-3 (1/17/23 Notice).
On February 16, 2023, the SSA sent plaintiff a notice "in response to your request for reinstatement of your Medicare Part B coverage," informing her that in order to restore her coverage retroactively to September 2022 (when it was cancelled for nonpayment of premiums), plaintiff would have to pay $1,010.20, representing "Medicare Part B premiums owed from 9/2022 to the present." Wilder Decl. Ex 7 (2/16/23 Notice) at ECF p. 2.
On February 20, 2023, plaintiff submitted another form SSA-561 "Request for Reconsideration," in which she objected both to the 1/17/23 Notice (as to the $680.40 being withheld from her past-due benefits for the period May-August 2022) and the 2/16/23 Notice (as to the $1,010.20 bill for the period September 2022-February 2023). Wilder Decl. Ex. 7, at ECF p. 1. Plaintiff argued that she should not have to pay when she "was not covered and did not use medicare benefits." Id. On February 23, 2023, plaintiff submitted a form requesting re-enrollment in Medicare Part B, but only as of March 2023. Id. Ex. 6. On the re-enrollment form, plaintiff explained again that she "did not use the medicare" while her disability benefits were suspended, and therefore, in her view, should not be charged premiums for that period. Id.
On March 8, 2023, the SSA denied plaintiff's February 2023 Request for Reconsideration, notifying her that its January 17, 2023 decision was "affirmed" and that it "correctly withheld" the $680.40. Wilder Decl. Ex. 8 (3/8/23 Notice) at ECF p. 1. The SSA explained that, although "Social Security stopped paying Medicare Part B in May 2022," plaintiff's coverage remained "active from May 2022 to August 2022," during which period it billed her three times for the premiums, but she did not pay them. Id. The 3/8/23 Notice advised plaintiff that if she disagreed with the agency's decision, she could seek an ALJ hearing within 60 days, using form HA-501. Id. at 1-2. On March 10, 2023, plaintiff submitted a form HA-501 "Request for Hearing by Administrative Law Judge," arguing again that she should not be charged for Medicare Part B premiums while her disability benefits were suspended, because "I did not use the benefits." (Dkt. 23 at ECF p. 4.)
The only copy of plaintiff's March 2023 Request for Hearing in the record was submitted by plaintiff herself. Wilder does not mention it. For purposes of the pending motion, however, I presume that the March 2023 Request for Hearing was in fact submitted that month.
On March 10, 2023, the SSA notified plaintiff that her Medicare Part B coverage was reinstated beginning March 2023, and that the premiums ($164.90 per month) would be deducted from her monthly disability check beginning in April 2023. Wilder Decl. Ex. 9, at 1-2. The SSA apparently no longer seeks Medicare Part B premiums for the period September 2022-February 2023.
D. Defendant Moves to Dismiss
On November 21, 2022, the Court entered a scheduling order directing the Commissioner to file any pre-answer motion no later than January 23, 2023. (Dkt. 12.) Thereafter, the Commissioner sought three extensions of her time to move to dismiss, in part "[t]o give the parties time to resolve the issues with plaintiff's gap in Medicare coverage due to non-payment of premiums, and potentially to explore a possible resolution of this action and thereby avoid the need for briefing." (Dkt. 17; Dkt. 19 at 2; Dkt. 24.) In each extension request, the Commissioner's counsel reported that she had attempted, unsuccessfully, to contact plaintiff to obtain her consent to the extension. I granted all three requests (Dkts. 18, 20, 25), ultimately making the motion to dismiss due March 28, 2023.
During this period, although plaintiff did not speak with defendant's counsel, she twice wrote to the Court to elaborate on her claims - in particular, her allegation that the SSA investigator identified in her original Complaint contacted both plaintiff and plaintiff's mother before their benefits were suspended and threatened to do just that. On December 9, 2022, plaintiff wrote that she and her mother "sustained substantial emotional distress" and "egregious financial loss" as a result of this conduct. See 12/9/22 Ltr. (Dkt. 15) at ECF p. 1. On March 10, 2023, she asserted that her mother's benefits "have not been reinstated." 3/14/23 Ltr. (Dkt. 23) at ECF p. 2. In the same letter, plaintiff advised that although her own benefits were no longer suspended, she wished to "continue with this case until resolution," id. at ECF p. 1, because she objected to the assessment of any Medicare Part B premiums while her disability benefits were suspended. Id. Plaintiff advised the Court that she had just "sent in by certified mail a request for a hearing by an Administrative Law Judge[.]" Id.
Plaintiff also stated that in April 2022, when her disability benefits were suspended, she "let the Social Security office in Peekskill know that while my Social Security benefits were suspended, I would not be using my Medicare benefits[.]" 3/10/23 Ltr. at 1. Plaintiff made no mention of this communication in her February 2023 Request for Reconsideration or her March 2023 Request for Hearing, and does not attach any supporting documentation. Nor does the Wilder Declaration include any request by plaintiff to cancel her Medicare Part B coverage in 2022.
On March 28, 2023, the Commissioner filed the motion now before the Court, supported by the Wilder Declaration and a memorandum of law (Def. Mem.) (Dkt. 26), arguing that "[t]his Court lacks jurisdiction under 42 U.S.C. § 405(g) . . . because there is no decision of the Commissioner subject to court review." Def. Mem. at ECF p. 4. In the alternative, the Commissioner contends, plaintiff's May 2022 Request for Reconsideration, which was granted in January 2023, "resulted in her obtaining all the relief she requested in her Amended Complaint," mooting her claim under the Act. Id. at ECF p. 9.
On March 29, 2023, I directed plaintiff to respond to the motion by April 27, 2023, and listed several questions that would be helpful for plaintiff to answer. (Dkt. 29.) The Commissioner served the motion papers on plaintiff on April 6, 2023, by mail. (See Dkt. 31.) Before that, on March 30, 2023, plaintiff wrote to the Court, stating, "I do [o]ppose the dismissal at this time, due to: 1) I have not received my ALJ hearing from Social Security. 2) The proximate cause of my mother[']s Social Security suspension [is] due to my Transgender status discrimination." 3/30/2023 Ltr. (Dkt. 30) at ECF p. 1. The remainder of plaintiff's March 30, 2023 letter discusses her mother's case, which was pending in Connecticut. Id. By letter dated April 27, 2023, plaintiff requested an extension of time to respond to the motion to dismiss. (Dkt. 32.) I granted the request, extended plaintiff's opposition deadline to May 31, 2023, and reminded plaintiff of the questions set forth in the Court's March 29, 2023 order. (Dkt. 33.)
The questions were: "(i) What decision or determination of the SSA does plaintiff seek to challenge; (ii) What was the date on which that decision or determination was made; (iii) What efforts, if any, has plaintiff made to seek further consideration or review of that decision or determination within the SSA; and (iv) If plaintiff sought further consideration or review, what further decision or determination did the SSA make, and on what date." (Dkt. 29.)
On May 31, 2023, plaintiff filed her two-page Opposition to the Motion to Dismiss (Pl. Opp.) (Dkt. 35), listing the Court's questions but answering none of them. Instead, plaintiff explained that she was in discussions with the Office of Medicare Hearings and Appeals "to see if the Judge will reschedule a hearing to address the penalty, that was incurred, $680.40[.]" Pl. Opp. at 1. Plaintiff added that she was having difficulty accessing defendant's motion papers via PACER, and again discussed her mother's case. Id. at 1-2. On June 21, 2023, the Commissioner served her motion papers on plaintiff for a second time. (See Dkt. 36.)
On June 28, 2023, plaintiff filed a motion for leave to file a supplemental memorandum in opposition to defendant's motion to dismiss (Dkt. 38 at ECF p. 1), attaching her proposed Supplemental Memorandum (Supp. Mem.) (Dkt. 38 at ECF pp. 2-11). I accepted the Supplemental Memorandum on June 29, 2023. (Dkt. 40.)
Citing Mathews v. Eldridge, 424 U.S. 319 (1976), plaintiff argues that any failure on her part to exhaust her administrative remedies should be excused. Supp. Mem. at ECF pp. 3-4. Plaintiff further argues that although the relief she requested in her Amended Complaint "was granted," she should be given leave to amend again, so that she can conduct "discovery regarding the 'Investigation[.]'" Id. at ECF p. 6. The remainder of plaintiff's brief offers, in vague terms, to provide more detail supporting her belief that she and her mother were "treated unusually . . . harsh[ly] and not within the normal process after plaintiff revealed [her] gender status." Id. at ECF p. 8. In this section of her memorandum, plaintiff cites Title VII of the Civil Rights Act of 1964 (prohibiting discrimination in employment), the New York State Human Rights Law, and a variety of other anti-discrimination statutes and regulations. Id. at ECF pp. 7-10. The Supplemental Memorandum neither lists nor answers the questions set forth in the March 29, 2023 order.
By letter dated January 5, 2024 (Dkt. 81), defendant notified the Court that plaintiff's mother's case was dismissed as moot after the mother's disability benefits were reinstated retroactive to the date of suspension. See Travis v. Comm'r of Soc. Sec., No. 3:22-CV-01251-SVN (D. Conn. Sept. 5. 2023) (text-only order) (dismissing case "with prejudice on mootness grounds" because "Plaintiff Joan Travis's benefits have been fully restored and a retroactive payment of benefits has been released").
II. LEGAL STANDARDS
"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). If a federal court determines that subject matter jurisdiction does not exist, it "must dismiss the complaint[.]" Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (internal citation omitted); see also Fed.R.Civ.P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.").
A. Standard on a Motion to Dismiss Pursuant to Rule 12(b)(1)
In considering a motion to dismiss for lack of subject matter jurisdiction, a federal trial court accepts as true all factual allegations in the complaint and draws all reasonable inferences in the plaintiff's favor. See, e.g., Liranzo v. United States, 690 F.3d 78, 84 (2d Cir. 2012); Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). However, the court may also "refer to evidence outside the pleadings." Makarova, 201 F.3d at 113; see also APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003) (quoting LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d Cir. 1999)) ("[W]here jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits."); Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986) ("when, as here, subject matter jurisdiction is challenged under Rule 12(b)(1), evidentiary matter may be presented by affidavit or otherwise"). The plaintiff has the burden of proof and "must prove the existence of subject matter jurisdiction by a preponderance of the evidence." Moser v. Pollin, 294 F.3d 335, 339 (2d Cir. 2002); accord Makarova, 201 F.3d at 113; Architectural Body Rsch. Found. v. Reversible Destiny Found., 335 F.Supp.3d 621, 633 (S.D.N.Y. 2018).
Although the courts "must liberally construe a pro se litigant's papers when considering a motion to dismiss under Rule 12(b)(1)," Jones v. Nat'l Commun. & Surveillance Networks, 409 F.Supp.2d 456, 465-66 (S.D.N.Y. 2006) (citing Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995)), "jurisdictional requirements are not relaxed based on a litigant's pro se status." Alijaj v. Wells Fargo, 2022 WL 392864, at *3-4 (S.D.N.Y. Feb. 9, 2022) (quoting Escoffier v. MFY Legal Servs., 2015 WL 221048, at*1 (S.D.N.Y. Jan. 15, 2015)).
B. Subject Matter Jurisdiction Under the Social Security Act
"A district court's subject matter jurisdiction over the denial of Social Security disability benefits is limited." Smith v. Barnhart, 293 F.Supp.2d 252, 254 (E.D.N.Y. 2003). Like other federal agencies, the SSA is immune from suit except to the extent it has waived that immunity. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). "Absent a waiver of sovereign immunity," claims against the Commissioner, "even claims based on the Constitution[,] are barred." Lynn v. U.S. Dep't of Health & Hum. Servs., 583 F.Supp. 532, 534 (S.D.N.Y. 1984) (citing Contemporary Mission, Inc. v. United States Postal Service, 648 F.2d 97, 104 (2d Cir. 1981)).
"The Social Security Act waives the SSA's sovereign immunity in limited circumstances, including permitting federal courts to review 'final decisions' of the SSA that involve Title II disability claims." Tadeusz Michal S. v. Saul, 2019 WL 4451249, at *2 (N.D.N.Y. Sept. 17, 2019). The Act provides:
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.42 U.S.C. § 403(g). Moreover, § 405(g) provides the only route to judicial review of a decision of the SSA. "No findings of fact or decision of the Commissioner of Social Security shall be reviewed by any person, tribunal, or governmental agency except as herein provided." 42 U.S.C. § 405(h). Thus, the judicial review method set forth in § 405(g) is the exclusive method for judicial review of decisions by the SSA, "irrespective of whether the individual challenges the agency's denial on evidentiary, rule-related, statutory, constitutional, or other legal grounds." Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 10 (2000).
Section 405(g) "clearly limits judicial review to a particular type of agency action, a 'final decision of the [Commissioner] made after a hearing.'" Califano v. Sanders, 430 U.S. 99, 108 (1977) (quoting 42 U.S.C. § 405(g)). Moreover, these requirements are "central to the requisite grant of subject-matter jurisdiction." Weinberger v. Salfi, 422 U.S. 749, 764 (1975). Thus, it is "well settled" that "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." Norman v. Astrue, 912 F.Supp.2d 33, 39-40 (S.D.N.Y. 2012) (quoting Mathews v. Chater, 891 F.Supp. 186, 188 (S.D.N.Y.1995)).
This Court's subject matter jurisdiction is further limited, by article III, § 2 of the United States Constitution, to matters presenting an actual case or controversy. If the issues presented by a case "are no longer 'live' or the parties 'lack a legally cognizable interest in the outcome,'" the case is moot, depriving the court of jurisdiction to hear it. Blackwelder v. Safnauer, 866 F.2d 548, 550 (2d Cir. 1989) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)); see also Lillibask ex rel. Mauclaire v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 (2d Cir. 2005) (when a case becomes moot, "the court . . . loses jurisdiction over the suit, which therefore must be dismissed") (internal quotation marks and citation omitted).
"A claim becomes moot when interim relief or events have eradicated the effects of the defendant's act or omission, and there is no reasonable expectation that the alleged violation will recur." Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 647 (2d Cir. 1998). Thus, for example, if an ALJ awards disability benefits "retroactively to the date [plaintiff's] application was filed," during the pendency of a lawsuit challenging an earlier, adverse ALJ decision, the case must be dismissed for lack of subject-matter jurisdiction, because "there is no live controversy between the parties." Rivera v. Apfel, 2000 WL 33647061, at *1 (2d Cir. Nov. 14, 2000); see also Diaz v. Blum, 479 F.Supp. 930, 933-34 (S.D.N.Y. 1979) (when the City of New York "stipulated to withdraw" a notice threatening to reduce plaintiff's welfare benefits, plaintiff's constitutional challenge was mooted, as "her claim no longer presents a live controversy as to any alleged deprivation of constitutional rights").
III. APPLICATION OF STANDARDS
A. Discrimination Allegations
In her Amended Complaint, and again in her Supplemental Memorandum, plaintiff alleges that her disability benefits were suspended because she came out as a transgender woman, and therefore that the suspension violated her rights under the Fourteenth Amendment, Title VII, and various other anti-discrimination statutes and regulations. These allegations (even if otherwise adequately pleaded) do not relieve plaintiff from the requirements of § 405(g) or provide any alternative basis on which this Court could exercise subject matter jurisdiction. "[E]ven a constitutional question that is connected to the action arises under the [Social Security] act and must be channeled through the agency." Grice v. Colvin, 97 F.Supp.3d 684, 698 (D. Md. 2015) (citing Shalala, 529 U.S. at 23). Accordingly, judicial review of plaintiff's discrimination allegations can occur only after the Commissioner has made a final decision after a hearing. See Weinberger, 422 U.S. at 760-61 (plaintiffs' constitutional claims arose under the Act because plaintiffs sought to recover social security benefits and the "Social Security Act provides both the standing and the substantive basis for the presentation of their constitutional contentions"); Long Island Ambulance, Inc. v. Thompson, 220 F.Supp.2d 150, 160 (E.D.N.Y. 2002) ("Despite the language in which the plaintiffs' [due process] claims are couched, the claims are 'at bottom' attempts to recover the sum of $545,702.23 which the defendant suspended and applied to an overpayment.").
The primary question for this Court, therefore, is whether any decision to which plaintiff objects qualifies as a final decision of the agency, made after a hearing. "In the absence of a final decision after a hearing, the federal court lacks subject matter jurisdiction to entertain the claim, and it must be dismissed." Leavitt, 171 F. App'x. at 375 (citing Weinberger, 422 U.S. at 764). In addition, the Court must consider whether plaintiff's request for review of the March 2022 suspension of her benefits is moot, due to the reinstatement of those benefits.
B. Exhaustion
Although the term "final decision" is undefined in the Act, the Social Security regulations explicitly set forth the administrative remedies available to an aggrieved claimant. See 20 C.F.R. § 404.900(a). "To obtain a judicially reviewable 'final decision' as construed by SSA regulations, a claimant must exhaust a four-step administrative process." Eichie, 2023 WL 1438327, at *5 (internal citations omitted). This four-step process involves (1) an agency initial determination; (2) reconsideration; (3) hearing before an ALJ; and (4) Appeals Council review. See 20 C.F.R. § 404.900; Smith v. Barnhart, 293 F.Supp.2d at 255. In this case, it is somewhat difficult to pin down which agency decision plaintiff seeks to challenge before the Court. Due in part to the progress of her claims within the agency, her pleadings and briefs have presented a series of moving targets. None of those targets, however, qualifies as a final decision of the Commissioner made after a hearing.
1. The April 2022 Suspension
In her Amended Complaint, plaintiff alleges that she "followed all the steps and exhausted all of the administrative remedies" available to appeal the April 2022 suspension of her disability benefits. Am. Compl. at ECF p. 1. It is true that plaintiff filed a Request for Reconsideration (in May 2022, see Wilder Decl. Ex. 3), followed by a Request for Hearing by Administrative Law Judge (in June 2022, see Am. Compl. at ECF p. 12, at which point the agency had not yet acted on the Request for Reconsideration). However, no ALJ hearing was ever held (because, as it turned out, plaintiff prevailed on her Request for Reconsideration), and consequently no request for review was ever presented to or acted upon by the Appeals Council. Thus, the April 2022 suspension of plaintiff's benefits never ripened into a final agency decision reviewable by this Court.
The Commissioner argues that because the April 2022 suspension of plaintiff's benefits was "due to an investigation," it was not even an "initial determination," as that term is defined in 20 C.F.R. § 404.900(a)(1), and therefore, although the suspension was "reviewable" by the SSA, it was "not [] subject to judicial review." Def. Mem. at ECF p. 7 (quoting 20 C.F.R. § 404.903). The Court need not reach this question in order to dispose of the pending motion to dismiss.
In her Supplemental Memorandum, plaintiff argues that the four-stage exhaustion requirement ordinarily applied in cases brought under the Act are "waivable," Supp. Mem. at ECF p. 3, and should be waived in this case under the test set forth in Mathews v. Eldridge and its progeny. Id. at ECF pp. 3-3. Plaintiff is correct that a court may waive administrative exhaustion requirements where "a claimant's interest in having a particular issue resolved promptly is so great that deference to the agency's judgement is inappropriate." Mathews v. Eldridge, 424 U.S at 329. In the context of social security benefits, courts do so only after finding: "(1) that the claim is collateral to a demand for benefits, (2) that exhaustion would be futile, [or] (3) that plaintiffs would suffer irreparable harm if required to exhaust administrative remedies."Pavano v. Shalala, 95 F.3d 147, 150 (2d Cir.1996); accord Eichie, 2023 WL 1438327, at *6. Nevertheless, "[e]xhaustion is the rule, waiver the exception." Pavano, 95 F.3d at 150 (quoting Abbey v. Sullivan, 978 F.2d 37, 44 (2d Cir. 1992). In this case, as in Pavano, those factors do not support exhaustion.
In Pavano, the Second Circuit held that the district court erred when it excused the usual administrative exhaustion requirements for a class of Medicare beneficiaries and their assignees seeking reimbursement for "anesthesia modifiers." 95 F.3d at 150-51.
First, plaintiff's claim is not collateral to her demand for benefits. Plaintiff expressly demands that the Court "[r]einstate my disability benefits and any retroactive benefits that have been withheld." Am. Compl. at ECF p. 2. Thus, "the issue in suit is identical to the administrative demand." Pavano, 95 F.3d at 150. Plaintiff concedes as much when she acknowledges that, since her benefits have been reinstated, the relief sought in her amended complaint "was granted." Supp. Mem. at ECF p. 7.
Second, there is no possible basis on which to conclude that administrative review would be "futile." By the time the Commissioner's motion to dismiss was filed, the first level of administrative review had already been successful, resulting in the reinstatement of plaintiff's benefits.
Finally, nothing in the record suggests that plaintiff risked or suffered irreparable harm from the suspension of her benefits, which lasted approximately ten months in the aggregate before her benefits were reinstated and she received a retroactive award for the period of suspension. "Irreparable harm is a high bar 'where the harm suffered in the interim would be irreparable in the sense that no post hoc relief would be adequate.'" Eichie, 2023 WL 1438327, at *6 (quoting Smith v. Schweiker, 709 F.2d 777, 780 (2d Cir. 1983)). To clear that bar, a plaintiff must raise "at least a colorable claim that because of his physical condition and dependency upon the disability benefits, an erroneous termination would damage him in a way not recompensable through retroactive payments." Mathews v. Eldridge, 424 U.S. at 331.
Here, while plaintiff alleges generically that she (and her mother) sustained "substantial emotional distress" and "egregious financial loss" due to the "Social Security commission actions," 12/9/22 Ltr. at ECF p. 1, she offers no specific facts that would distinguish her from the millions of other disability claimants who also experience emotional distress and financial hardship when the agency issues an adverse benefits decision - but who are routinely required to exhaust their administrative remedies before seeking District Court review. See, e.g., Eichie, 2023 WL 1438327, at *7 (plaintiff's allegation that a 3-year gap in his disability payments "caus[e]d anxiety and stress that affects [Plaintiff's] disability" did not satisfy the "irreparable harm" prong, particularly where plaintiff's benefits had subsequently been reinstated).
Because each of the relevant factors weighs against plaintiff, I conclude that this is not a case in which the exhaustion requirement can be waived. Consequently, this Court lacks jurisdiction to review the April 2022 suspension of plaintiff's benefits, 2. The January 2023 Withholding
I reach the same conclusion regarding what appears to be plaintiff's current claim: that when her benefits were retroactively reinstated in January 2023, the SSA should not have withheld $680.40 from her award to cover her Medicare Part B premiums for the months of May-August 2022. Once again, plaintiff filed a Request for Reconsideration (in February 2023, see Wilder Decl. Ex. 7, at ECF p. 1) followed by a Request for Hearing by Administrative Law Judge (in March 2023, see Dkt. 23 at ECF p. 4, after the agency denied her Request for Reconsideration). However, there is no indication in the record that the ALJ hearing has occurred, much less that the ALJ's decision was adverse and that the Appeals Council agreed (or denied review). Thus, even assuming, arguendo, that the January 2023 decision to withhold the $680.40 was an "initial determination" that could ripen into a final decision of the Commissioner, no such final decision is now before this Court. Consequently, this Court lacks jurisdiction to consider whether the $680.40 was properly withheld.
Plaintiff does not argue - perhaps because there is no colorable argument to be made - that this Court should waive the administrative exhaustion requirements for her $680.40 claim for reimbursement of the withheld Medicare premiums.
C. Mootness
If and to the extent plaintiff still seeks review of the SSA's March 2022 decision suspending her benefits, that claim is now moot, and therefore would be subject to dismissal pursuant to Rule 12(b)(1) even if plaintiff had satisfied the administrative exhaustion requirements. She acknowledges in her Supplemental Memorandum that all of the relief sought in her Amended Complaint "was granted." Suppl. Mem. at ECF p. 7. Consequently, "there is no live controversy between the parties," Rivera, 2000 WL 33647061, at *1, and her case must be dismissed for lack of subject matter jurisdiction.
D. Leave to Amend
The Second Circuit has cautioned that district courts should not dismiss apro se complaint "without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Although district courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects, this accommodation is not available where amendment would be futile. See Munroe v. Aetna Medicare, 2023 WL 5105306, at *3 (S.D.N.Y. Aug. 9, 2023); Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).
"[T]he standard for denying leave to amend based on futility is the same as the standard for granting a motion to dismiss." Carroll v. Trump, 590 F.Supp.3d 575, 579 (S.D.N.Y. 2022) (quoting IBEW Loc. Union No. 58 Pension Tr. Fund & Annuity Fund v. Royal Bank of Scotland Grp., PLC, 783 F.3d 383, 389 (2d Cir. 2015)). To show that an amendment would not be futile, plaintiff "must, '[a]t the very least . . . provide some indication of the substance of the contemplated amendment in order to allow the Court to apply the standards governing Rule 15(a).'" United States ex rel. Hussain v. CDM Smith, Inc., 2018 WL 11217206, at *1 (S.D.N.Y. Jan. 31, 2018) (quoting St. Clair Shores Gen. Employees Ret. Sys. v. Eibeler, 745 F.Supp.2d 303, 316 (S.D.N.Y. 2010)).
In this case, plaintiff has already filed an amended complaint - in response to the Chief Judge's Order to Amend - and I have, in effect, permitted to her to amend again, by accepting the new factual allegations she made in her letters and her Supplemental Memorandum. See Forrest v. City of New York, 2023 WL 2432493, at *5 (S.D.N.Y. Feb. 1, 2023) (in a pro se case, the court may, "in its discretion, consider factual allegations made in the plaintiff's opposition papers 'as supplementing the Complaint, at least to the extent they are consistent with the allegations in the Complaint.'") (quoting George v. Pathways to Hous., Inc., 2012 WL 2512964, at *6 n.7 (S.D.N.Y. June 29, 2012)), report and recommendation adopted, 2023 WL 2433115 (S.D.N.Y. Mar. 9, 2023). Moreover, although she now requests leave to further amend, see Supp. Mem. at ECF p. 7, plaintiff does not suggest that she could plead around the jurisdictional defects identified above. Rather, she offers to add more factual detail concerning her discrimination allegations. Id. at ECF pp. 7-8.
"In the absence of any identification of how a further amendment would improve upon the Complaint, leave to amend must be denied as futile." Eibeler, 745 F.Supp.2d at 316 (quoting In re WorldCom, Inc. Sec. Litig., 303 F.Supp.2d 385, 391 (S.D.N.Y. 2004)). Since no jurisdictional basis exists for plaintiff's discrimination claims, it would be futile to permit plaintiff to amend for the purpose of elaborating on the factual bases for those claims.
The Court is not unsympathetic to the difficulties that plaintiff may have faced when her benefits were suspended, nor to the challenges she has experienced in pursuing her administrative remedies. However, until and unless she is aggrieved by a "final decision of the Commissioner of Social Security made after a hearing to which [she] was a party," this Court lacks jurisdiction to hear her claims against the Commissioner.
IV. CONCLUSION
For the reasons set forth above, I recommend, respectfully, that defendant's motion be GRANTED and that this action be dismissed without leave to amend.
In light of plaintiff's past difficulties in accessing filings through PACER, the Clerk of Court is respectfully directed to mail a copy of this report and recommendation to plaintiff at:
107 Lake St.
Cortlandt Manor, NY 10567
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this report and recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Jesse M. Furman at the Thurgood Marshall United States Courthouse 40 Foley Square New York, New York 10007, and to the chambers of the undersigned Magistrate Judge. Any request for an extension of time to file objections must be directed to Judge Furman. Failure to file timely objections will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 Fed.Appx. 486, 487 (2d Cir. Nov. 27, 2018); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).