Case Name in Social Security Case - Unavailable

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).
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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-
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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
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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.
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