UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STEVEN MICHAEL F.,1
Plaintiff,
-v- CIVIL ACTION NO. 24 Civ. 1820 (RFT)
LEE DUDEK, ACTING COMMISSIONER OPINION & ORDER OF SOCIAL SECURITY,2
Defendant.
ROBYN F. TARNOFSKY, UNITED STATES MAGISTRATE JUDGE Before the Court is Defendant’s mo�on for judgment on the pleadings. (See ECF 22, Def.’s Br.) Also before the Court are Plain�ff Steven Michael F.’s pe��on for review and cross- mo�on for judgment on the pleadings seeking judicial review of a final determina�on by Defendant Lee Dudek, Ac�ng Commissioner of the Social Security Administra�on (the “SSA”), dismissing his request for Appeals Council review of the determina�on by the Administra�ve Law Judge (the “ALJ”) of liability under the Social Security Act (the “Act”) for repayment of overpayments, on the ground of failure to file a �mely request for review. (See ECF 27, Pl.’s Mot. at 1-2.) Having carefully reviewed the administra�ve record (the “Record”) and the submissions of the par�es, and for the reasons set forth below, the Commissioner’s mo�on for judgment on the pleadings is GRANTED; Plain�ff’s cross-mo�on is DENIED; and Plain�ff’s pe��on for review is DISMISSED.
1 To protect Plain�ff’s privacy, he is iden�fied by his first and middle names and last ini�al. 2 Lee Dudek is the Ac�ng Commissioner of the Social Security Administra�on. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, he is subs�tuted as the defendant in this ac�on. BACKGROUND I. Procedural History
In November 2017, Plain�ff was found disabled and en�tled to disability insurance benefits. (R. at 107-17; ECF 22, Def.’s Opp. at 1.)3 The SSA awarded Plain�ff’s children, Angelia F. and Michael F., child’s benefits on Plain�ff’s account; Giovanna F. was assigned as the children’s representa�ve payee (the “Children’s Representa�ve”). (R. at 118-29.) On August 24, 2020, Plain�ff and the Children’s Representa�ve were no�fied that the SSA had overpaid their
benefits. (Id. at 136-49.) On September 17, 2020, Plain�ff submited a request for reconsidera�on. (Id. at 23, 150.) Between January 11, 2021 and January 18, 2021, the SSA sent addi�onal no�ces of overpayment for new amounts to Plain�ff and the Children’s Representa�ve. (Id. at 151-73.) On March 20, 2021 and March 22, 2021, the SSA denied Plain�ff’s request for reconsidera�on and issued no�ces to Plain�ff and the Children’s Representa�ve advising them of their total overpaid amounts due. (Id. at 175-88.)
On April 27, 2021, Plain�ff submited a request for hearing before an ALJ. (Id. at 189-90.) That same day, the Children’s Representa�ve, on behalf of the children, filed addi�onal hearing requests. (Id. at 191-94.) The ALJ issued a decision as to all par�es on March 21, 2023, finding that the SSA cannot waive the overpayments and holding Plain�ff liable for the amounts due for himself and his children. (Id. at 27.)
3 Cita�ons to “R.” are to the administra�ve record, and the page cita�ons are to the black numbers in the top right corner of each page and not to the blue numbers at the top of the page that are part of the ECF numbering system. The ALJ’s March 21 no�ce of decision required Plain�ff to file a writen request for review to the Appeals Council within sixty days of receipt (id. at 20), and Plain�ff is assumed to have received the no�ce five days a�er its issue date. On June 30, 2023, thirty-six days a�er the
deadline set by the ALJ’s no�ce of decision, Plain�ff, through counsel, sent his request for review to the Appeals Council. (Id. at 18-19.) Plain�ff alleges good cause for failing to meet the deadline due to flare-ups of back pain that required over-the-counter medica�on, being somewhat depressed, and feeling embarrassment for needing to go outside the family for legal assistance. (Id.)
On January 3, 2024, the Appeals Council denied Plain�ff’s request for review, finding a lack of good cause for un�meliness under current regula�ons. (See id. at 4-5.) On March 8, 2024, sixty days a�er it is assumed that Plain�ff received the no�ce of dismissal, Plain�ff �mely filed this ac�on seeking judicial review of the Appeals Council’s dismissal, pursuant to 42 U.S.C. § 405(g). (See id. at 2; ECF 1, Compl.; ECF 2, Corrected Compl.) On September 6, 2024, Defendant filed a brief opposing Plain�ff’s request for judicial review; Defendant referred to a
mo�on for judgment on the pleadings but does not appear to have filed such a mo�on; nevertheless, I treat Defendant’s filing as a mo�on for judgment on the pleadings. (See generally ECF 22, Def.’s Br.) On December 19, 2024, Plain�ff responded by filing a mo�on for judgment on the pleadings, which included his arguments in support of gran�ng his mo�on; I construe this filing as a cross-mo�on for judgment on the pleadings. (See generally ECF 27, Pl.’s Mot.) On January 2, 2025, Defendant filed a brief in response to Plain�ff’s cross-mo�on and in
further support of its mo�on. (ECF 28, Def.’s Reply.) DISCUSSION I. Legal Standards
“A mo�on for judgment on the pleadings should be granted if it is clear from the pleadings that the moving party is en�tled to judgment as a mater of law.” Hayward v. Comm’r of Soc. Sec., No. 18-CV-10402 (SN), 2021 WL 982296, at *3 (S.D.N.Y. Mar. 16, 2021) (quo�ng Burns Int’l Sec. Servs., Inc. v. Int’l Union, United Plant Guard Workers of Am. (UPGWA) & Its Local 537, 47 F.3d 14, 16 (2d Cir. 1995)); see also Fed. R. Civ. P. 12(c).4
An individual may file a civil ac�on seeking judicial review of any final determina�on made by the Commissioner within sixty days a�er mailing of such no�ce of decision. See 42 U.S.C. § 405(g). “[W]here the SSA’s Appeals Council has dismissed a request for review as un�mely a�er a claimant has obtained a hearing from an ALJ on the merits, that dismissal qualifies as a final decision . . . within the meaning of § 405(g).” Smith v. Berryhill, 587 U.S. 471, 489 (2019). If the SSA dismissed a case on procedural grounds, the court should restrict its
review to the procedural basis for the Appeals Council’s dismissal. See Hayward, 2021 WL 982296, at *3. Procedural decisions are reviewed under an “abuse of discre�on” standard as to the conclusion and under a “substan�al evidence” standard as to factual determina�ons. See id.; see also 42 U.S.C. § 405(g). “[I]f substan�al evidence supports the Commissioner’s determina�on that a claimant did not �mely request review, a court will review the agency’s good cause determina�on for abuse of discre�on.” Hayward, 2021 WL 982296, at *3; see also
Bowen v. City of New York, 476 U.S. 467, 483 (1986). The reviewing court is limited to
4 Unless otherwise indicated, this Opinion and Order omits all internal quota�on marks, cita�ons, footnotes, omissions, emphases, and altera�ons in quoted text. determining whether the SSA’s conclusions were based on the correct legal standard and supported by “more than a mere scin�lla” of evidence. Brown v. Berryhill, No. 15-CV-8201 (VSB) (BCM), 2017 WL 2493275, at *5 (S.D.N.Y. Mar. 3, 2017).
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STEVEN MICHAEL F.,1
Plaintiff,
-v- CIVIL ACTION NO. 24 Civ. 1820 (RFT)
LEE DUDEK, ACTING COMMISSIONER OPINION & ORDER OF SOCIAL SECURITY,2
Defendant.
ROBYN F. TARNOFSKY, UNITED STATES MAGISTRATE JUDGE Before the Court is Defendant’s mo�on for judgment on the pleadings. (See ECF 22, Def.’s Br.) Also before the Court are Plain�ff Steven Michael F.’s pe��on for review and cross- mo�on for judgment on the pleadings seeking judicial review of a final determina�on by Defendant Lee Dudek, Ac�ng Commissioner of the Social Security Administra�on (the “SSA”), dismissing his request for Appeals Council review of the determina�on by the Administra�ve Law Judge (the “ALJ”) of liability under the Social Security Act (the “Act”) for repayment of overpayments, on the ground of failure to file a �mely request for review. (See ECF 27, Pl.’s Mot. at 1-2.) Having carefully reviewed the administra�ve record (the “Record”) and the submissions of the par�es, and for the reasons set forth below, the Commissioner’s mo�on for judgment on the pleadings is GRANTED; Plain�ff’s cross-mo�on is DENIED; and Plain�ff’s pe��on for review is DISMISSED.
1 To protect Plain�ff’s privacy, he is iden�fied by his first and middle names and last ini�al. 2 Lee Dudek is the Ac�ng Commissioner of the Social Security Administra�on. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, he is subs�tuted as the defendant in this ac�on. BACKGROUND I. Procedural History
In November 2017, Plain�ff was found disabled and en�tled to disability insurance benefits. (R. at 107-17; ECF 22, Def.’s Opp. at 1.)3 The SSA awarded Plain�ff’s children, Angelia F. and Michael F., child’s benefits on Plain�ff’s account; Giovanna F. was assigned as the children’s representa�ve payee (the “Children’s Representa�ve”). (R. at 118-29.) On August 24, 2020, Plain�ff and the Children’s Representa�ve were no�fied that the SSA had overpaid their
benefits. (Id. at 136-49.) On September 17, 2020, Plain�ff submited a request for reconsidera�on. (Id. at 23, 150.) Between January 11, 2021 and January 18, 2021, the SSA sent addi�onal no�ces of overpayment for new amounts to Plain�ff and the Children’s Representa�ve. (Id. at 151-73.) On March 20, 2021 and March 22, 2021, the SSA denied Plain�ff’s request for reconsidera�on and issued no�ces to Plain�ff and the Children’s Representa�ve advising them of their total overpaid amounts due. (Id. at 175-88.)
On April 27, 2021, Plain�ff submited a request for hearing before an ALJ. (Id. at 189-90.) That same day, the Children’s Representa�ve, on behalf of the children, filed addi�onal hearing requests. (Id. at 191-94.) The ALJ issued a decision as to all par�es on March 21, 2023, finding that the SSA cannot waive the overpayments and holding Plain�ff liable for the amounts due for himself and his children. (Id. at 27.)
3 Cita�ons to “R.” are to the administra�ve record, and the page cita�ons are to the black numbers in the top right corner of each page and not to the blue numbers at the top of the page that are part of the ECF numbering system. The ALJ’s March 21 no�ce of decision required Plain�ff to file a writen request for review to the Appeals Council within sixty days of receipt (id. at 20), and Plain�ff is assumed to have received the no�ce five days a�er its issue date. On June 30, 2023, thirty-six days a�er the
deadline set by the ALJ’s no�ce of decision, Plain�ff, through counsel, sent his request for review to the Appeals Council. (Id. at 18-19.) Plain�ff alleges good cause for failing to meet the deadline due to flare-ups of back pain that required over-the-counter medica�on, being somewhat depressed, and feeling embarrassment for needing to go outside the family for legal assistance. (Id.)
On January 3, 2024, the Appeals Council denied Plain�ff’s request for review, finding a lack of good cause for un�meliness under current regula�ons. (See id. at 4-5.) On March 8, 2024, sixty days a�er it is assumed that Plain�ff received the no�ce of dismissal, Plain�ff �mely filed this ac�on seeking judicial review of the Appeals Council’s dismissal, pursuant to 42 U.S.C. § 405(g). (See id. at 2; ECF 1, Compl.; ECF 2, Corrected Compl.) On September 6, 2024, Defendant filed a brief opposing Plain�ff’s request for judicial review; Defendant referred to a
mo�on for judgment on the pleadings but does not appear to have filed such a mo�on; nevertheless, I treat Defendant’s filing as a mo�on for judgment on the pleadings. (See generally ECF 22, Def.’s Br.) On December 19, 2024, Plain�ff responded by filing a mo�on for judgment on the pleadings, which included his arguments in support of gran�ng his mo�on; I construe this filing as a cross-mo�on for judgment on the pleadings. (See generally ECF 27, Pl.’s Mot.) On January 2, 2025, Defendant filed a brief in response to Plain�ff’s cross-mo�on and in
further support of its mo�on. (ECF 28, Def.’s Reply.) DISCUSSION I. Legal Standards
“A mo�on for judgment on the pleadings should be granted if it is clear from the pleadings that the moving party is en�tled to judgment as a mater of law.” Hayward v. Comm’r of Soc. Sec., No. 18-CV-10402 (SN), 2021 WL 982296, at *3 (S.D.N.Y. Mar. 16, 2021) (quo�ng Burns Int’l Sec. Servs., Inc. v. Int’l Union, United Plant Guard Workers of Am. (UPGWA) & Its Local 537, 47 F.3d 14, 16 (2d Cir. 1995)); see also Fed. R. Civ. P. 12(c).4
An individual may file a civil ac�on seeking judicial review of any final determina�on made by the Commissioner within sixty days a�er mailing of such no�ce of decision. See 42 U.S.C. § 405(g). “[W]here the SSA’s Appeals Council has dismissed a request for review as un�mely a�er a claimant has obtained a hearing from an ALJ on the merits, that dismissal qualifies as a final decision . . . within the meaning of § 405(g).” Smith v. Berryhill, 587 U.S. 471, 489 (2019). If the SSA dismissed a case on procedural grounds, the court should restrict its
review to the procedural basis for the Appeals Council’s dismissal. See Hayward, 2021 WL 982296, at *3. Procedural decisions are reviewed under an “abuse of discre�on” standard as to the conclusion and under a “substan�al evidence” standard as to factual determina�ons. See id.; see also 42 U.S.C. § 405(g). “[I]f substan�al evidence supports the Commissioner’s determina�on that a claimant did not �mely request review, a court will review the agency’s good cause determina�on for abuse of discre�on.” Hayward, 2021 WL 982296, at *3; see also
Bowen v. City of New York, 476 U.S. 467, 483 (1986). The reviewing court is limited to
4 Unless otherwise indicated, this Opinion and Order omits all internal quota�on marks, cita�ons, footnotes, omissions, emphases, and altera�ons in quoted text. determining whether the SSA’s conclusions were based on the correct legal standard and supported by “more than a mere scin�lla” of evidence. Brown v. Berryhill, No. 15-CV-8201 (VSB) (BCM), 2017 WL 2493275, at *5 (S.D.N.Y. Mar. 3, 2017).
In determining whether a claimant has shown good cause for missing a deadline to request review, the SSA considers: (1) what circumstances kept the claimant from making a �mely request; (2) whether an ac�on by the SSA misled the claimant; (3) whether the claimant did not understand the requirements of the Act, other legisla�on, or court decisions; and (4) whether the claimant had any physical, mental, educa�onal, or linguis�c limita�ons that
prevented �meliness. 20 C.F.R. § 404.911(a). The regula�ons provide examples of good cause, including, as relevant here, that the claimant was “seriously ill and w[as] prevented from contac�ng [the SSA] in person, in wri�ng, or through a friend, rela�ve, or other person,” and whether “[u]nusual or unavoidable circumstances exist, including the circumstances described in paragraph (a)(4) of this sec�on, which show that you could not have known of the need to file �mely, or which prevented you from filing �mely.” Id. § 404.911(b).
II. The Appeals Council Did Not Abuse Its Discre�on Plain�ff does not contest that his filing was un�mely. Instead, Plain�ff asserts there was good cause to enlarge the deadline to file his request for review due to flare-ups of his chronic back pain requiring over-the-counter medica�on, his depression, and his embarrassment for needing to go outside the family for legal assistance. (R. at 18-19.) The Appeals Council did not
abuse its discre�on when it concluded that Plain�ff had failed to demonstrate good cause: the Appeals Council applied the proper legal standard and its conclusion was appropriately supported. (See id. at 4-5 (ci�ng 20 C.F.R. §§ 404.911, 404.968).) Plain�ff received proper no�ce from the ALJ’s no�ce of decision of the deadline to file a
request for Appeals Council review and how the deadline would be calculated. (R. at 4, 20-21.) The relevant ques�ons are whether Plain�ff was “seriously ill” and “prevented from contac�ng [the Appeals Council] in person, in wri�ng, or through a friend, rela�ve, or other person,” or whether there were “[u]nusual or unavoidable circumstances,” including physical or mental limita�ons, “which prevented [Plain�ff] from filing �mely.” 20 C.F.R. § 404.911(b). Under the
circumstances of this case, the two inquiries are essen�ally the same – whether Plain�ff’s physical and/or mental health condi�ons prevented him from filing �mely. Plain�ff asserts that he missed the deadline because he began experiencing flare-ups of his severe and constant back pain, which required the use of over-the-counter medica�ons and prevented him from managing his daily ac�vi�es and which made it extremely difficult for him to meet deadlines. (ECF 27, Pl.’s Mot. at 2-3.) Plain�ff argues that his inability to func�on was
further exacerbated by his depression, and that the combina�on of chronic pain and depression led to extreme fa�gue and lack of concentra�on. (See id. at 3.) Plain�ff’s back pain and depression may have prevented him from ac�ng independently to �mely file his request with the Appeals Council, but Plain�ff provides no explana�on for how the debilita�ng back pain, which Plain�ff was trea�ng with over-the-counter medica�on, combined with depression, prevented him from seeking aid from a lawyer, family member, or
friend. As the Commissioner points out, Plain�ff worked with counsel in connec�on with his request for reconsidera�on by the ALJ. (See ECF 22, Def.’s Opp. at 1, 6 (ci�ng R. at 150).) He also is working with counsel in connec�on with this cross-mo�on for judgment on the pleadings. (See ECF 27, Pl.’s Mot. at 3.) He therefore had connec�ons with lawyers who could have helped him �mely file with the Appeals Council.
Plain�ff argues that he was too embarrassed to find legal assistance to meet the deadline. (R. at 18.) However, he provides no explana�on for why the embarrassment became overwhelming in connec�on with making a �mely filing with the Appeals Council, when he had previously worked with a lawyer in connec�on with seeking benefits (and has subsequently worked with a lawyer). Nor has Plain�ff explained why he could not have sought help from a
family member. Plain�ff’s disability, standing alone, is not sufficient to meet his burden of showing good cause for the un�mely filing. See, e.g., Dority v. Comm’r of Soc. Sec., No. 14-CV- 0285, 2015 WL 5919947, at *5 (N.D.N.Y. Oct. 9, 2015) (applying 20 C.F.R. § 404.91 and finding that “[a]lthough an ALJ must take into considera�on a plain�ff[’s] mental limita�on in determining good cause, evidence that a plain�ff suffers from a mental impairment, or even that the impairment is considered severe, does not in and of itself, generate good cause for
failure to atend a hearing”). Plain�ff has not shown that he was prevented from contac�ng the SSA in wri�ng or through a proxy due to serious illness. See 20 C.F.R. § 404.911(b)(1). Ul�mately, it is a plain�ff’s burden to demonstrate good cause for failure to �mely file, and Plain�ff here has not come forward with evidence or even specific arguments about his situa�on (as opposed to generali�es about chronic pain and depression). In the absence of such evidence or argument, I can find no abuse of discre�on by the Appeals Council. See Binckes v.
Comm’r of Soc. Sec., No. 20-CV-0635 (AMD), 2021 WL 1026568, at *2-3 (E.D.N.Y. Mar. 16, 2021) (affirming the Appeals Council’s dismissal of the plain�ff’s un�mely request for review, because the plaintiff had failed to provide “corroborating evidence” establishing good cause for missing the filing deadline); see also Jacqueline E. v. Saul, No. 17-CV-0414, 2020 WL 1234949, at *5 (W.D.N.LY. Mar. 13, 2020) (“As it is the claimant’s burden to show good cause, the [C]Jourt can find no abuse of discretion where [the p]laintiff failed to present any retrospective documentation regarding h[is] untimely filing.”). CONCLUSION
For the foregoing reasons, the Commissioner’s motion for judgment on the pleadings is GRANTED; Plaintiff’s cross-motion for judgment on the pleadings is DENIED; and this matter is DISMISSED. The Clerk of Court is respectfully requested to terminate all pending motions and close this case. Dated: February 25, 2025 New York, New York SO ORDERED. □
ROBYN F. TARNOFSKY United States Magistrate Judge