1:24-cv-00166•Case Name in Social Security Case - Unavailable
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE RICHARD CROSBY v. Civil No. 24-CV-166-LM-TSM COMMISSIONER, SOCIAL SECURITY ADMINISTRATION REPORT AND RECOMMENDATION This is Richard Crosby’s fifth suit in this court that arose from the Social Security Administration’s (“SSA”) decision in 2015 to deny him benefits.1 On preliminary review, the undersigned magistrate judge recommended that the district judge dismiss this case for failure to state a claim upon which relief might be granted. Doc. no. 4. Crosby then filed a motion to compel (doc. no. 7), which the district court construed to be an addendum to his complaint and referred the complaint with the addendum to the undersigned for reconsideration in light of the procedures provided in 20 C.F.R. Part 401. End. Or. Aug. 23, 2024. On reconsideration, the undersigned addressed the procedures provided by § 401.100 and concluded that the regulation was inapposite to the relief Crosby seeks in this case. Doc. no. 9, at 1-2. Instead, under 20 C.F.R. § 402.15(b), the Privacy Act provides the means for an individual, such as Crosby, to have access to his own records from the SSA. Id. at 2. The undersigned concluded, however, that the circumstances in this case required Crosby to exhaust administrative 1 The court dismissed the prior four suits. See Crosby v. Social Security Administration, 22-cv- 234-SE, Op. No. 2022 DNH 099 (D.N.H. Aug. 18, 2022); Crosby v. Social Security Administration, 22-cv-469-SM (D.N.H. Nov. 21, 2022) (app’d Dec. 1, 2022); Crosby v. Social Security Administration, 23-cv-108-LM (D.N.H. Feb. 10, 2023) (app’d Mar. 6, 2023 and aff’d July 14, 2023); Crosby v. Social Security Administration, 23-cv-379-SE-AJ (D.N.H. Aug. 14, 2023) (app’d Aug. 30, 2023). Case 1:24-cv-00166-LM-TSM Document 12 Filed 09/23/24 Page 1 of 4
2 remedies through the SSA before proceeding with a claim or claims under the Privacy Act and that Crosby had not shown exhaustion. Id. at 3. The undersigned granted Crosby an opportunity to show that he had exhausted the SSA’s administrative remedies. Id. Crosby then filed an amended complaint in which he alleged that he has asked the SSA for the underlying documentation pertaining to the decision to deny him benefits in 2015 and that the SSA has not provided the documentation. Crosby did not cite specific requests and responses or provide copies of the requests he made and responses he received. The undersigned then gave Crosby another opportunity to demonstrate exhaustion by filing a final amended complaint in which he: “(1) alleges the specific steps he took to exhaust administrative remedies with dates and recipients identified, (2) alleges the responses he received with dates and senders identified, and (3) appends copies of all cited documents.” End. Or. Sept. 17, 2024. In response, Crosby filed an amended complaint in which he asserts that he is unable to exhaust SSA administrative remedies “without full access to the SSA’s records regarding missing years from [his] work history.” Doc. no. 11, at 1. He further states that he is unable “to determine the full scope of what needs to be addressed or appeal these administrative decisions effectively.” Id. Crosby also states that he “has made substantial efforts to exhaust the SSA’s administrative remedies” and that “these efforts have been obstructed by the SSA’s failure to provide complete and transparent access to relevant records.” Id. at 2. Crosby alleges that he has made “multiple good-faith efforts to obtain the missing records” and that “the SSA’s responses have been limited, incomplete, or delayed.” Id. “Exhausting administrative remedies under the Privacy Act requires more than merely asking for the documents,” and instead, “a plaintiff must submit a Privacy Act request to the agency and seek review within the agency under the agency’s regulations.” Lantry v. Kendall, No. 23-cv- Case 1:24-cv-00166-LM-TSM Document 12 Filed 09/23/24 Page 2 of 4
3 473-RDM, 2024 WL 1366788, at *8 (D.D.C. Mar. 31, 2024). Notably, Crosby did not provide specific identification of his requests for documentation sent to the SSA or copies of any requests for documentation or any responses received. As such, Crosby has not demonstrated that he exhausted or even attempted to exhaust SSA administrative remedies. Crosby appears to argue that exhaustion would be futile because he needs documentation from the SSA before he can request the documents he requires to pursue an appeal of the denial of his benefits, but that circular reasoning does not establish futility. See Taylor v. U.S. Treasury Dep’t¸127 F.3d 470, 477 (5th Cir. 1997) (holding that exhaustion under the Privacy Act would be futile if “the administrative agency will clearly reject the claim”); see also Duarte v. Saul, 20-cv-151-JCS, 2021 WL 1516241, at *7 (N.D. Cal. Apr. 16, 2021) (holding that futility is not shown under the Privacy Act in claim seeking documents from the SSA based on “individual irregularities that allegedly had the effect of denying benefits to the plaintiff”) (internal quotation marks omitted). Crosby did not comply with the court order to demonstrate exhaustion for purposes of maintaining a Privacy Act claim. His allegations that he is unable exhaust administrative remedies are unsupported and cannot be credited on this record. Because Crosby has been given two opportunities to demonstrate exhaustion and has failed to do so, to the extent he intended to allege a claim under the Privacy Act, the district judge should dismiss that claim. The remainder of his complaint should be dismissed for failure to state a claim on which relief may be granted for the reasons stated in the prior report and recommendation (doc. no. 4). CONCLUSION For the foregoing reasons, the district judge should dismiss the complaint (doc. no. 1) and the motion to compel (doc no. 7). Any objections to this Report and Recommendation must be Case 1:24-cv-00166-LM-TSM Document 12 Filed 09/23/24 Page 3 of 4
4 filed within fourteen days of receipt of this notice. See Fed. R. Civ. P. 72(b)(2). The fourteen-day period may be extended upon motion. Only those issues raised in the objection(s) to this Report and Recommendation are subject to review in the district court. See Sch. Union No. 37 v. United Nat’l Ins. Co., 617 F.3d 554, 564 (1st Cir. 2010). Any issues not preserved by such objection(s) are precluded on appeal. See id. Failure to file any objections within the specified time waives the right to appeal the district court’s Order. See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016). Talesha L. Saint-Marc United States Magistrate Judge September 23, 2024 cc: Richard Crosby, pro se. Case 1:24-cv-00166-LM-TSM Document 12 Filed 09/23/24 Page 4 of 4
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