Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ross v. Colvin

United States District Court, D. Maryland

July 29, 2015

DANIEL HUBERT ROSS and AUDREY DELORIS ROSS, Plaintiffs,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

THOMAS M. DIGIROLAMO, Magistrate Judge.

Plaintiffs pro se Daniel Ross and Audrey Ross bring this action against Carolyn W. Colvin, Acting Commissioner of Social Security ("Defendant" or the "Commissioner").[1] They seek judicial review of the Commissioner's determinations regarding overpayment of benefits. The Commissioner now moves to dismiss this matter without prejudice for lack of subject-matter jurisdiction because Plaintiffs have not exhausted their administrative remedies and because Plaintiffs do not raise a colorable constitutional claim such as to waive the exhaustion requirement. ECF No. 9. Under Standing Order 2014-01, this matter has been referred to the undersigned for pretrial management and for proposed findings or fact and recommendations under 28 U.S.C. § 636(b)(1)(B) and L.R. 301(5)(b)(ix). No hearing is necessary. L.R. 105(6). For the reasons that follow, it is RECOMMENDED that the Motion to Dismiss (ECF No. 9) be GRANTED and that the case be DISMISSED WITHOUT PREJUDICE under Fed. R. Civ. 12(b)(1) for lack of subject-matter jurisdiction.

BACKGROUND

On May 18, 2011, Plaintiff Daniel Ross filed with the Social Security Administration (the "SSA") an initial application for monthly retirement benefits. D.H. Ross Decl. ¶ 5(a), ECF No. 15; Osborne Decl. ¶ 5(a) & Ex. A, ECF Nos. 9-2, 9-3. In connection with his application, Mr. Ross estimated his anticipated earnings for the year. Osborne Decl. ¶ 5(b) & Ex. A, ECF Nos. 9-2, 9-3.[2] Mr. Ross also affirmed that he understood that, if he earned more than certain amounts, he could be liable for repaying any resulting overpayment of benefits. Osborne Decl. ¶ 5(b) & Ex. A, ECF Nos. 9-2, 9-3.

On May 23, 2011, Mr. Ross was awarded retirement benefits, and the SSA again informed him about certain applicable earnings limits. Osborne Decl. ¶ 5(c) & Ex. B, ECF Nos. 9-2, 9-4. Specifically, the SSA informed Mr. Ross that he could continue to work and still receive retirement benefits, but that, if he exceeded certain earnings limits, his benefit amounts would be reduced. Osborne Decl. ¶ 5(d) & Ex. B, ECF Nos. 9-2, 9-4. The SSA also informed Mr. Ross that, if at any time he anticipated that his earnings would exceed the expected earnings he denoted on his application for retirement benefits, he should contact the SSA and inform it accordingly. Osborne Decl. ¶ 5(d) & Ex. B, ECF Nos. 9-2, 9-4.

On April 17, 2012, Mr. Ross also applied for child's benefits on behalf of Plaintiff Audrey Ross, his disabled daughter. Osborne Decl. ¶ 5(e) & Ex. C, ECF Nos. 9-2, 9-5; D.H. Ross Decl. ¶ 5(e), ECF No. 15. On April 22, 2012, Ms. Ross was awarded monthly child's benefits on Mr. Ross's account, with Mr. Ross named as her representative payee. Osborne Decl. ¶ 5(f) & Ex. D, ECF Nos. 9-2, 9-6; D.H. Ross Decl. ¶ 5(f), ECF No. 15.

In September 2012, the SSA became aware that Mr. Ross's earnings had exceeded the applicable earnings limits. Osborne Decl. ¶ 5(g), ECF No. 9-2. As a result, on September 18, 2012, the SSA notified Mr. Ross that it had overpaid Mr. Ross and his daughter in light of his earnings in 2011. Osborne Decl. ¶ 5(h) & Ex. E, ECF Nos. 9-2, 9-7. The SSA also informed Mr. Ross that he had a right to appeal the overpayment within sixty days of his receipt of the SSA's notice. Osborne Decl. ¶ 5(i) & Ex. E, ECF Nos. 9-2, 9-7. According to the SSA, Mr. Ross did not appeal the overpayment (Osborne Decl. ¶ 5(i), ECF No. 9-2), although Mr. Ross asserts that he did so (D.H. Ross Decl. ¶ 5(i), ECF No. 15). The SSA also informed Mr. Ross that he had a right to request that the SSA waive recovery of the overpayment. Osborne Decl. ¶ 5(j) & Ex. E, ECF Nos. 9-2, 9-7.

On September 21, 2012, Mr. Ross requested the SSA to waive recovery of the overpayment. Osborne Decl. ¶ 5(k), ECF No. 9-2; D.H. Ross Decl. ¶ 5(k), ECF No. 15. According to the SSA, Mr. Ross indicated that he did not intend to submit any documentation in support of his request (Osborne Decl. ¶ 5(k), ECF No. 9-2), although Mr. Ross asserts that he "needed time to drive home, gather the necessary documentation, [and] return to the Agency; however, the Agency was rushing all claimants in its office to finish and leave so it could close its doors until the next day for business as it pertained to social security benefits" (D.H. Ross Decl. ¶ 5(k), ECF No. 15).

On September 24, 2012, the SSA denied Mr. Ross's request for waiver of recovery of his overpayment. Osborne Decl. ¶ 5( l ), ECF No. 9-2; D.H. Ross Decl. ¶ 5( l ), ECF No. 15. According to the SSA, Mr. Ross did not appeal the SSA's September 24, 2012, denial of his request for a waiver (Osborne Decl. ¶ 5( l ), ECF No. 9-2), although Mr. Ross asserts that he did so (D.H. Ross Decl. ¶ 5( l ), ECF No. 15).

On March 25, 2013, Mr. Ross filed with the SSA another request for waiver of recovery of his overpayment. Osborne Decl. ¶ 5(m), ECF No. 9-2; D.H. Ross Decl. ¶ 5(m), ECF No. 15. Mr. Ross subsequently scheduled an in-person appointment at the SSA's office in Camp Springs, Maryland. Osborne Decl. ¶ 5(m), ECF No. 9-2; D.H. Ross Decl. ¶ 5(m), ECF No. 15. On April 2, 2013, Mr. Ross met with an SSA representative and agreed that $170 per month would be withheld from his monthly retirement benefits to reduce the amount of the overpayment until the overpayment was repaid. Osborne Decl. ¶ 5(n) & Ex. F, ECF Nos. 9-2, 9-8.

On January 7, 2014, Mr. Ross filed with the SSA another request for waiver of recovery of the overpayment. Osborne Decl. ¶ 5(o), ECF No. 9-2; D.H. Ross Decl. ¶ 5(o). ECF No. 15. On September 19, 2014, Plaintiffs filed a Complaint in this Court. ECF No. 1. On September 24, 2014, the SSA denied Mr. Ross's request for waiver of recovery of the overpayment. Osborne Decl. ¶ 5(p) & Ex. G, ECF Nos. 9-2, 9-9: D.H. Ross Decl. ¶ 5(p), ECF No. 15. According to the SSA, Mr. Ross did not appeal this denial (Osborne Decl. ¶ 5(q), ECF No. 9-2), although Mr. Ross asserts that he did so (D.H. Ross Decl. ¶ 5(q), ECF No. 15).

On October 27, 2014, Plaintiffs supplemented or amended their Complaint. ECF Nos. 3, 4. The Commissioner seeks to dismiss Plaintiffs' Amended Complaint under Fed.R.Civ.P. 12(b)(1) for lack of subject-matter jurisdiction because of Plaintiffs' failure to exhaust administrative remedies. ECF No. 9. In response, Plaintiffs filed an Opposition (ECF No. 12) and a corrected Opposition (ECF No. 14).

STANDARD OF REVIEW

Motions to dismiss for lack of subject-matter jurisdiction are governed by Fed.R.Civ.P. 12(b)(1). The plaintiff bears the burden of proving that subject-matter jurisdiction properly exists in the federal court. See Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999). In a 12(b)(1) motion, the court "may consider evidence outside the pleadings" to help determine whether it has jurisdiction over the case before it. Richmond, Fredericksburg & Potomac R.R. Co. v. United Stales, 945 F.2d 765, 768 (4th Cir. 1991); see also Evans, 166 F.3d at 647. The court should grant the 12(b)(1) motion "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Richmond, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.