Crosby v. Social Security Administration

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Richard S. Crosby
v. Civil No. 22-cv-234-SE
Opinion No. 2022 DNH 099
Social Security Administration
O R D E R
Richard Crosby, proceeding pro se, brought suit in
Hillsborough County (New Hampshire) Superior Court against the
Social Security Administration (“SSA”), alleging that the SSA
fraudulently altered his last-insured date, which led to a
termination of his social security disability insurance
benefits. The SSA removed the case to this court and moves to
dismiss the complaint under Federal Rules of Civil Procedure
12(b)(1), for lack of subject matter jurisdiction, and 12(b)(6),
for failure to state a claim upon which relief can be granted.
Doc. no. 5.
After the SSA’s motion was fully briefed, Crosby filed a
“Petition the Court for Consideration” (doc. no. 16), a
“Secondary Petition the Court for Consideration” (doc. no. 17),
and a “Motion to Amend Statement of Case” (doc. no. 21). In
those filings, Crosby clarifies and adds allegations to his
complaint in response to the SSA’s motion to dismiss. In light
of Crosby’s pro se status, the court considers document nos. 16,
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17, and 21 to be addenda to the complaint. Because the
allegations in the addenda do not change the shortcomings of
Crosby’s claims, the court rules on the motion without affording
the SSA the opportunity to file a renewed motion to dismiss that
addresses the additional allegations.
Background1
At some point prior to November 2014, Crosby applied for
social security disability insurance benefits. On November 7,
2014, an SSA Administrative Law Judge (“ALJ”) issued a decision
on Crosby’s application. The ALJ found that Crosby was disabled
and entitled to disability insurance benefits, beginning on
March 1, 2013.
1 The facts in this section are taken from Crosby’s
complaint, including the addenda, and the SSA Appeals Council’s
decision that determined that Crosby was not entitled to
disability insurance benefits. The court considers the decision
because it was included with the SSA’s motion to dismiss,
Crosby’s claims arise out of the decision, and Crosby does not
dispute the document’s authenticity. Trans-Spec Truck Serv.,
Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008)
(“When . . . a complaint’s factual allegations are expressly
linked to—and admittedly dependent upon—a document (the
authenticity of which is not challenged), that document
effectively merges into the pleadings and the trial court can
review it in deciding a motion to dismiss under Rule 12(b)(6).”)
(quotation and brackets omitted).
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On April 10, 2015, the SSA Appeals Council (“Council”)
notified Crosby of its intention to reopen the ALJ’s decision
based upon a revised report from the Internal Revenue Service
(“IRS”) that triggered the SSA to reconsider certain years of
Crosby’s reported self-employment income. In light of the IRS
report, the Council proposed to issue a decision finding that
Crosby was not entitled to disability benefits based on a
disability onset date of March 1, 2013. The notice gave Crosby
30 days to submit any comments or new and material evidence. He
did not do so.
On July 6, 2015, the Council issued a final decision,
finding that the updated evidence showed that Crosby was not
entitled to disability benefits as of March 1, 2013 (“Final
Decision”). The Council explained that a social security
disability claimant is not entitled to benefits unless the
claimant has “20 Social Security credits (5 years of work under
Social Security) during the 10-year period ending with the
quarter in which one becomes disabled.” Doc. no. 5-3 at 4.
Updated evidence showed that certain of Crosby’s self-employment
earnings from 2003 and 2004 were removed from his record.
Consequently, Crosby did not have the required 20 credits on
March 1, 2013. Instead, he last had the required credits on
March 31, 2006. Because Crosby was not disabled on March 31,
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2006, the Council determined that he was not entitled to
disability benefits.
The notice of the unfavorable decision informed Crosby of
the process necessary to seek review of the Final Decision. It
explained that Crosby could only ask for court review by filing
a civil action in the United States District Court for the
judicial district in which he lives. The notice also stated that
Crosby needed to file the action within 60 days after receiving
the decision. Crosby was informed that he could ask the Council
for an extension if he could not file for court review within 60
days. Crosby took neither action. Approximately seven years
later, Crosby brought this suit in state superior court against
the SSA, alleging that the SSA committed fraud in removing from
his record his self-employment earnings from 2003 and 2004,
which led to the termination of his disability benefits. The SSA
removed the case to this court.2
2 In his most recent addendum filed after the SSA’s motion
to dismiss, Crosby states that in addition to his claim for
fraud, “[t]his is also a case of civil conspiracy” and “breach.”
Doc. no. 21, ¶¶ 11, 12. He does not allege adequately the
elements of those claims and, viewed generously, they appear to
be based on the same allegations as his fraud claim. Even if he
had alleged additional claims, the court would dismiss those
claims for the reasons stated below.
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Discussion
The SSA moves to dismiss, arguing that the court lacks
subject matter jurisdiction because Crosby initiated the action
in state court. The SSA contends that judicial review of SSA
cases involving disability insurance benefits must be brought in
federal district court in the first instance. The SSA also
argues that even if this court has jurisdiction, it should
dismiss Crosby’s complaint because his claim is barred by the
applicable statute of limitations.
In his response to the SSA’s motion (“objection”),3 Crosby
states that he does “not contest the final ruling related to
[his] disability case.” Doc. no. 11 at 1. He contends that
instead he is bringing a claim for fraud under New Hampshire
law, based on the SSA’s actions in connection with his
application for disability benefits. See id. at 1-2.
I. Challenge to the Final Decision
Despite Crosby’s representation to the contrary in his
objection, his complaint and objection demonstrate that he is
3 Although Crosby’s filing responded to the issues raised in
the motion to dismiss, he titled the filing: “Motion to Amend
Statement of Case.” Doc. no. 11. He subsequently submitted
various filings which, as discussed above, the court construes
as addenda to the complaint. Therefore, the court construes
document no. 11 as an objection to the SSA’s motion to dismiss
and considers the arguments therein in resolving the motion.
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challenging the SSA’s Final Decision. His complaint states that
his disability claim was denied because of the SSA’s allegedly
fraudulent actions and complains that those actions “changed
[his] insured date thereby making [him] no longer qualify for
disability.” Doc. no. 1-1 at 2; see doc. no. 21, ¶ 6 (“One year
after [Crosby] applied for disability the SSA altered his work
history in such a way as to push back his last insured date by
seven years thereby making him no longer fully insured.”). In
his objection, he states that the “fraud that has been
committed” is that the SSA altered his earnings and that his
promised disability benefits were then taken away. Doc. no. 11
at 2.
Crosby’s claim challenging the Final Decision cannot
survive the SSA’s motion to dismiss for two reasons. First, the
court lacks subject matter jurisdiction because 42 U.S.C. §
405(g) requires a plaintiff to file any action seeking judicial
review of a final social security benefits determination “in the
appropriate district court, in general that of the plaintiff’s
residence or principal place of business.” Weinberger v. Salfi,
422 U.S. 749, 764 (1975) (discussing the requirements of §
405(g)). Crosby filed this action in New Hampshire Superior
Court, and the SSA’s removal of the case to this court does not
allow the court to acquire subject matter jurisdiction. See
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Antonio M. v. Soc. Sec. Admin. Comm’r, No. 2:22-CV-00035-JDL,
2022 WL 2274864, at *2 (D. Me. June 23, 2022).
Second, even if the court did have jurisdiction, it would
still dismiss the complaint because Crosby initiated this case
after the expiration of the applicable statute of limitations
period. As stated in the Final Decision and in § 405(g), a
claimant seeking judicial review of a final SSA decision must
file a court action or seek an extension from the Council within
60 days of receiving notice of the decision.
In his complaint and addenda, Crosby states that he did not
receive notice of the Final Decision until recently.
Specifically, he alleges that the SSA mailed the Final Decision
to 717 Toulouse Street when he actually lived at 713 Toulouse
Street and, therefore, he did not receive the decision when the
SSA mailed it. He claims that he did not discover the decision
until March 5, 2022.
Even if Crosby received notice of the Final Decision on
March 5, 2022, as he claims, his challenge to the decision would
be untimely. Crosby filed this action in superior court on May
13, 2022. See doc. no. 1-1 at 1, 3, 6. Thus, Crosby initiated
this action 69 days after he allegedly received notice of the
Final Decision, which is outside the 60-day limitations period
established in § 405(g).
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II. Fraud
Even if Crosby were not challenging the SSA’s Final
Decision and instead intended to bring a claim for fraud, the
court would still dismiss his complaint. Putting aside that
Crosby has not pleaded a fraud claim with particularity as
required by Federal Rule of Civil Procedure 9(b), the court does
not have jurisdiction over such a claim because the SSA has not
waived its sovereign immunity with respect to that claim.4
Crosby asserts in his objection that he is alleging a claim
for common law fraud under New Hampshire law. However, a
plaintiff may not assert a state-law claim against the United
States or its agencies unless the government has waived its
sovereign immunity. Sanchez v. United States, 740 F.3d 47, 50
(1st Cir. 2014). The Federal Tort Claims Act (“FTCA”) serves as
a limited waiver of that immunity for torts committed by the
federal government, its agencies, and employees and provides the
exclusive remedy to compensate plaintiffs for such claims. Roman
v. Townsend, 224 F.3d 24, 27 (1st Cir. 2000).
4 As discussed above, the SSA argues that this court does
not have subject matter jurisdiction, but it does so only in the
context of Crosby’s failure to file this case in federal
district court. Nevertheless, it “is black-letter law that a
federal court has an obligation to inquire sua sponte into its
own subject matter jurisdiction.” McCulloch v. Velez, 364 F.3d
1, 5 (1st Cir. 2004).
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Crosby’s fraud claim against the SSA is based on
allegations that the agency unlawfully altered his work history
and past earnings, resulting in the termination of his
disability insurance benefits. That claim cannot survive for two
reasons.
First, Crosby’s fraud claim against the SSA arises out of
his efforts to recover social security disability benefits and,
as such, it is barred by 42 U.S.C. § 405(h). That statute
provides that “[n]o action against the United States, the
Commissioner of Social Security, or any officer or employee
thereof shall be brought under [the FTCA] to recover on any
claim arising under” Subchapter II of the Social Security Act,
which provides for the payment of Social Security benefits. “The
Supreme Court has broadly construed this provision to bar
claims, even if they might be said to arise under other laws as
well, when the plaintiff seeks to recover Social Security
benefits and the Social Security Act ‘provides both the standing
and the substantive basis’ for the claims.” Agcaoili v. Thayer,
365 F. App’x 372, 375 (3d Cir. 2010) (quoting Weinberger v.
Salfi, 422 U.S. 749, 760–61 (1975)). Thus, a district court
lacks jurisdiction to consider fraud claims asserted against the
SSA or an SSA employee and arising out of the alleged wrongful
withholding of benefits. Agcaoili, 365 F. App’x at 375; Jensen
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v. Rubin, No. 3:21-CV-482 (SRU), 2022 WL 119237, at *8 (D. Conn.
Jan. 12, 2022) (“Under Section 405(h), Jensen cannot state a
claim of fraud against the SSA for wrongful determination of
overpayment leading to fraudulent recoupment.”); Knight-Bey v.
Bacon, No. 8:19CV330, 2020 WL 1929075, at *3 (D. Neb. Apr. 21,
2020) (“Plaintiff’s fraud claims directly relate to the SSA's
erroneous distribution of benefits. This is exactly the kind of
claim 42 U.S.C. § 405(h) prohibits.”), aff’d, No. 20-2011, 2020
WL 6743475 (8th Cir. Sept. 28, 2020); Papadopoulos v. Astrue,
No. 10 CIV. 7980 RWS, 2011 WL 5244942, at *11 (S.D.N.Y. Nov. 2,
2011) (“Section 405(h) expressly forecloses FTCA claims against
the Government under 28 U.S.C. § 1346 based upon the wrongful
withholding of benefits under the Social Security Act.”).
Second, even if § 405(h) did not foreclose Crosby’s fraud
claim, the court would still lack jurisdiction over the claim.
28 U.S.C. § 2680(h) provides that the FTCA does not waive
sovereign immunity for torts “arising out of . . .
misrepresentation” or “deceit.” Thus, “any claim by [a]
Plaintiff based on the state tort claim of fraud is excluded
from the FTCA’s limited waiver of sovereign immunity against a
governmental agency such as the SSA.” Jones v. Soc. Sec. Admin.,
No. 3:18-CV-1792-L, 2018 WL 5631504, at *2 (N.D. Tex. Oct. 31,
2018) (citing § 2680(h)).
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For these reasons, the SSA is entitled to dismissal of
Crosby’s complaint.
III. Crosby’s Available Options
Although Crosby cannot pursue his claims in this case, as
the SSA notes in its reply memorandum, he may pursue his
allegations of wrongdoing through other avenues. A claimant may
ask the SSA to reopen a final determination or decision at any
time in certain enumerated instances, including to correct
errors made in the calculation of “self-employment income to
individuals or periods . . ., which would have given him or her
insured status at the time of the determination or decision if
the earnings had been credited to his or her earnings record at
that time . . . .” Id., § 404.988(c)(7). The SSA may also reopen
a disability benefits decision at “any time if [i]t was obtained
by fraud or similar fault.” 20 C.F.R. § 404.988(c)(1). To the
extent that Crosby seeks to challenge the SSA’s actions with
regard to his self-employment income for 2003 and 2004, he may
consider asking the SSA to reopen his disability benefits case.
Conclusion
For the foregoing reasons, the defendant’s motion to
dismiss (doc. no. 5) is granted. All other pending motions are
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denied as moot. The clerk of court shall enter judgment
accordingly and close the case.
SO ORDERED.
__________________________
Samantha D. Elliott
United States District Judge
August 18, 2022
cc: Richard S. Crosby, pro se
Heather A. Cherniske, Esquire
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