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Barbara L. v. Commissioner, Social Security Administration

United States District Court, D. Maryland

April 10, 2019

BARBARA L., Plaintiff,


          Stephanie A. Gallagher, United States Magistrate Judge

         On November 9, 2018, Plaintiff Barbara L., who proceeds pro se, petitioned this Court to review an overpayment assessment by the Social Security Administration (“SSA”). ECF 1. The SSA filed a Motion to Dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), on the grounds that Plaintiff did not exhaust her administrative remedies prior to filing her complaint. ECF 9. Plaintiff opposed the motion. ECF 13. I find that no hearing is necessary. See Loc. R. 105.6 (D. Md. 2018). For the reasons explained below, I will grant the SSA's Motion to Dismiss.

         I. FACTS

         The following facts are derived from Plaintiffs complaint and its attachments, and the allegations are assumed true for the purposes of this motion. Plaintiffs husband began receiving Social Security retirement benefits in June, 2011. ECF 1 ¶ 6. In accordance with emailed advice she had received from the SSA, Plaintiff applied for a spousal benefit when she turned 66 years of age, and voluntarily suspended her own retirement benefits until age 70. Id. ¶¶ 7-8. Plaintiff turned 70 years of age on January 21, 2016. Id. ¶ 9. At that point, she began receiving her retirement benefits on her own earnings record, and notified SSA that she should no longer receive the spousal benefit. Id. ¶ 9. Despite Plaintiffs repeated requests that SSA stop sending her the spousal benefit, SSA continued paying her both types of benefits between January, 2016 and February, 2017. Id.

         On March 30, 2017, SSA notified Plaintiff that it had overpaid her spousal benefits between January, 2012 and February, 2017, for a total overpayment of $27, 366. Id. ¶ 10, Att. 8. The notice stated, in contradiction to the prior advice Plaintiff had obtained from SSA, that Plaintiff “should not have received any benefits as a spouse, ” since she had been entitled to collect higher benefits on her own earnings record. Id. ¶¶ 11-13, Att. 8. The notice advised that the overpayment amount would be withheld from Plaintiffs upcoming benefit payments, but stated, “If you request reconsideration and/or waiver within 30 days, the planned withholding of your benefit to recover the overpayment will not take place until your case is reviewed.” Id. ¶ 15, Att. 8. Although Plaintiff filed a Request for Reconsideration on April 17, 2017, SSA immediately began to withhold Plaintiffs monthly distributions to collect the alleged overpayment. Id. ¶ 15.

         Plaintiff visited a local SSA office to inquire why her benefits were being withheld. Id. ¶ 16. After originally claiming not to have a record of the Request for Reconsideration, SSA conceded that her request had been timely filed. Id. ¶¶ 16-17. Nevertheless, on May 3, 2017, SSA sent correspondence to Plaintiff indicating that her $2, 993 monthly benefits would be withheld in full from May, 2017 through a portion of January, 2018, to recover the allegedly overpaid benefits. Id., Att. 12. On November 20, 2017, SSA wrote to advise Plaintiff that she would begin receiving $2, 814 each month, representing a withholding of $179 per month, until her full overpayment amount was paid off in December, 2020. Id. On March 15, 2018, SSA again wrote to Plaintiff stating, “[w]e received your request that we review our decision, ” and noted that she would receive her full benefit payments from March, 2018, although an overpayment balance of $5, 708 remained. Id. On July 10, 2018, SSA wrote and said, “[w]e received your request for an explanation, ” and again affirmed that Plaintiff would receive her full payments with no withholding, although a balance of $5, 708 remained. Id.

         On May 29, 2018, Plaintiff wrote to her United States Congressperson to request assistance with contesting her overpayment assessment. Id., Att. 13. On September 21, 2018, Plaintiff received a new “Notice of Change in Benefits” stating, “Review of your record shows that the true amount of your overpayment is $8, 692.00.” Id., Att. 14. The letter affirmed that Plaintiff would continue to receive her full benefits, without withholdings, and told Plaintiff that she had 60 days to ask for an appeal and review of this decision. Id. Shortly thereafter, SSA wrote Plaintiffs Congressperson to advise that, “A technical expert at the payment center in Chicago looked at the case and decided that the overpayment was correct.” Id., Att. 15. On November 9, 2018, Plaintiff filed her Complaint in this Court, without pursuing any additional administrative remedies.

         Plaintiff alleges in her Complaint that, in a 2017 publication, SSA noted that the Bipartisan Budget Act of 2015 had closed a “loophole” which had “allowed some married individuals to start receiving spousal benefits at full retirement age, while letting their own retirement benefit grow by delaying it.” Id. ¶ 14, Att. 9 (printout from The SSA publication acknowledged that the rule closing the loophole applied only prospectively, not retroactively. Id. ¶ 14, Att. 9 (“If you voluntarily suspended benefits prior to April 30, 2016, you may remain in voluntary suspense status, and the new law will not affect you.”).


         Federal Rule of Civil Procedure 12(b)(1) governs motions to dismiss for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). While the plaintiff bears the burden of proving that a court has jurisdiction over the claim or controversy at issue, a Rule 12(b)(1) motion should be granted “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Ferdinand-Davenport v. Children's Guild, 742 F.Supp.2d 772, 777 (D. Md. 2010) (quoting Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999)). In a motion to dismiss for lack of subject matter jurisdiction, the pleadings should be regarded as “mere evidence on the issue, ” and courts may “consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Evans, 166 F.3d at 647 (quoting Richmond, Fredericksburg & Potomac R.R. v. Unites States, 945 F.2d 765, 768 (4th Cir. 1991)).

         A plaintiff carries the burden of establishing subject matter jurisdiction. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (citing Thomson v. Gaskill, 315 U.S. 442, 446 (1942); Goldsmith v. Mayor of Balt., 845 F.2d 61, 63-64 (4th Cir. 1988)). However, a pro se plaintiff's complaint should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1987) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)) (quotation and citation omitted). Pro se filings, “however unskillfully pleaded, must be liberally construed.” Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994) (citing Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)). Where a plaintiff has failed to exhaust administrative remedies before bringing a claim, the action should be dismissed under Rule 12(b)(1). See Khoury v. Meserve, 268 F.Supp.2d 600, 607 (D. Md. 2003), aff'd, 85 Fed.Appx. 960 (4th Cir. 2004).

         III. ANALYSIS

         The SSA argues that this Court lacks jurisdiction over Plaintiff's appeal because she failed to exhaust her administrative remedies before filing suit, and is not therefore appealing from a final decision of the Commissioner. ECF 9. The SSA, as an agency of the United States Government, enjoys immunity from suit absent express waiver. See F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). The applicable waiver of immunity in this case is found in the Social Security Act, which provides the statutory basis for Plaintiff's appeal.[1] ECF 1. That Act provides, in relevant part, that “[a]ny individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party . . . may obtain a review of such decision by a civil action[.]” 42 U.S.C. § 405(g). In Plaintiff's case, no hearing was ever held. Plaintiff's Request for Reconsideration of the March 30, 2017, Notice of Change in Benefits remains pending, and Plaintiff has not filed a Request for Reconsideration of the September 21, 2018, Notice of Change in Benefits, instead opting to file her complaint in this Court.[2]

         Plaintiff contends that “the actions SSA took on [Plaintiff's] claim for reimbursement constituted a ‘final decision . . . made after a hearing, '” while also acknowledging that Plaintiff has only received initial overpayment determinations, and has filed one petition for reconsideration which remains unresolved. ECF 13 at 6. The term “final decision” is undefined in the Act, and its meaning is left, instead, “to the [Commissioner] to flesh out by regulation.” Weinberger v. Salfi, 422 U.S. 749, 766 (1975). Social Security regulations provide that a claimant must complete a four-step administrative review process to obtain a judicially reviewable final decision. 20 C.F.R. § 404.900(a). First, an individual claiming entitlement to benefits receives an initial determination. 20 C.F.R. § 404.902. If the claimant is not satisfied with the determination, the claimant may request the SSA to reconsider the decision. 20 C.F.R. § 404.907. After the second step, reconsideration, if the claimant is still not satisfied with the determination, the claimant may request a hearing before an Administrative Law Judge (“ALJ”). Id.; 20 C.F.R. § 404.929. The claimant must request a hearing within sixty (60) days after the claimant receives notice of the previous determination or decision, unless the Commissioner grants a written request for more time. 20 C.F.R. § 404.933(b). Finally, if the claimant is not satisfied with the ALJ's determination at the third step of the review, the claimant may request review by the Appeals Council (“AC”). 20 C.F.R. § 404.967. The AC may deny the request for review and allow the ALJ's decision to stand as the final decision of the Commissioner, or it may grant the request for review and issue its own decision. 20 C.F.R. § 404.981. In either event, the claimant may then seek judicial review of the ...

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