Armstrong v. Astrue

• Decision Date: 04 August 2008
• Docket Number: Civ. No. 07-4310 (JNE/RLE).
• Citation: 569 F.Supp.2d 888
• Parties: Aruchunan Anthony ARMSTRONG, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Minnesota

569 F.Supp.2d 888

Aruchunan Anthony ARMSTRONG, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.

Civ. No. 07-4310 (JNE/RLE).

United States District Court, D. Minnesota.

August 4, 2008.

COPYRIGHT MATERIAL OMITTED

Aruchunan Anthony Armstrong, Minneapolis, MN, pro se.

Lonnie F. Bryan, United States Attorney's Office, Minneapolis, MN, for Defendant.

ORDER

JOAN N. ERICKSEN, District Judge.

Based upon the Report and Recommendation of United States Magistrate Judge Raymond L. Erickson, and after an independent review of the files, records and proceedings in the above-entitled matter, it is—

ORDERED:

1. That the Plaintiffs Motion for Summary Judgment [Docket No. 17] is denied, but without prejudice.

2. That the Defendant's Motion to Dismiss [Docket No. 29] is granted, as to the Plaintiffs claims under the Social Security Act, for failure to exhaust his administrative remedies.

3. That the Defendant's Motion to Dismiss [Docket No. 29] is granted, as to the Plaintiffs claims under the Federal Tort Claims Act, for failure to exhaust his administrative remedies, but without prejudice.

4. That the Plaintiffs Complaint is dismissed, in its entirety.

REPORT AND RECOMMENDATION

RAYMOND L. ERICKSON, United States Chief Magistrate Judge.

I. Introduction

The Plaintiff commenced this action, pursuant to Section 205(g) of the Social Security Act, Title 42 U.S.C. § 405(g), seeking a judicial review of the Commissioner's final decision, which reduced his monthly Social Security benefits. The Plaintiff also asserts several tort claims against the Defendant, pursuant to the Federal Tort Claims Act ("FTCA"), Title 28 U.S.C. § 1346(b)(1). The matter is now before the Court upon the Plaintiffs Motion for Summary Judgment, and upon the Defendant's Motion to Dismiss for lack of jurisdiction. The Plaintiff appears pro se, and the Defendant appears by Lonnie F. Bryan, Assistant United States Attorney. For reasons which follow, we recommend that the Plaintiff's Motion for Summary Judgment be denied, but without prejudice, that the Defendant's Motion to Dismiss be granted, and that the Plaintiff's Complaint be dismissed, in its entirety.

II. Factual and Procedural Background.

The Plaintiff first applied for Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI"), in November of 1998. See, Complaint, Docket No. 1, at ¶ 5. His application was denied, and his appeal of that decision was unsuccessful. Id.; see also, Declaration of Earnest Baskerville ("Baskerville Decl."), Docket No. 32, at ¶ 3, Exhibit C. However, on November 17, 2000, the Plaintiff again applied for DIB and SSI, and the State Agency concluded that he was disabled, as of November 1, 2000. Id.; see also, Baskerville Decl, supra at ¶ 3, Exhibit C. Accordingly, the Plaintiff began receiving monthly benefit checks from the Social Security Administration (the "SSA").¹ Id.

On April 10, 2006, the SSA informed the Plaintiff that the State of Minnesota would not pay his monthly Medicare premiums after February of 2006. Id. at ¶ 7; see also, Plaintiff's Exhibits to Complaint, Docket No. 8, at E-1. Accordingly, the SSA advised that the Plaintiff's monthly Social Security benefits would be reduced, in order to cover the costs of his Medicare premiums. Id. The letter also purported to advise the Plaintiff of his options for challenging that deduction. See, Plaintiffs Exhibits to Complaint, supra at E-1 ("Later in this letter, we tell you what to do if you disagree with this change in the amount of your monthly payment."). According to the Plaintiff, he concluded that the deduction, in the amount of $88.50, "was a pittance," and as a result, he "disregarded the matter." See, Complaint, supra at ¶ 7.

Thereafter, on December 29, 2006, the SSA sent the Plaintiff another letter, which advised that the State of Minnesota would not pay his Medicare premiums after December of 2006. Id. at ¶ 8; see also, Plaintiffs Exhibits to Complaint, supra at E-2. Accordingly, the SSA advised that the Plaintiffs monthly Social Security benefits would be reduced, in order to cover the costs of his Medicare premiums. Id. The letter again advised the Plaintiff of his options for challenging the deduction. See, Plaintiffs Exhibits to Complaint, supra at E-2.

The Plaintiff was concerned that the SSA was double-charging him for his Medicare premiums. Id. at ¶¶ 8-9. Accordingly, between December of 2006, and March of 2007, the Plaintiff contacted the SSA several times, both in person, and by telephone, in order to challenge the deduction.² Id. at ¶¶ 10-12.

On April 23, 2007, after concluding that his efforts had been unsuccessful, the Plaintiff filed a Request for Reconsideration. Id. at ¶ 13. The Plaintiff contends that, on June 27, 2007, he received a Reconsideration decision, which denied his request for a refund. Id. at ¶ 14, citing Plaintiffs Exhibits to Complaint, supra at B-1. In his Complaint, the Plaintiff alleges that, on September 21, 2007, he mailed a Request for Hearing to his local SSA office, and he included an explanation for his failure to file the Request within the sixty (60) day time limit. Id.

The Plaintiff also alleges that, on October 3, 2007, before receiving any response from his local SSA office, he mailed the same Request for Hearing, with the same explanation for his late filing, to the SSA office in Minneapolis, Minnesota. Id. In addition, the Plaintiff alleges that, on October 3, 2007, he traveled to his local SSA office, in order to submit a copy of his Request for Hearing in person, but the SSA refused to accept the Request for Hearing, because it was not accompanied by the Reconsideration decision. Id. at ¶¶ 16-17.

Accordingly, on October 19, 2007, the Plaintiff commenced this action, in which he asserts four (4) tort claims against the Defendant. First, the Plaintiff asserts a claim for negligence, based upon the SSA's allegedly erroneous deduction from his monthly benefits, which the Plaintiff asserts caused him a financial injury. See, Complaint, supra at ¶¶ 19-27. Second, the Plaintiff asserts a claim for negligence per se because, he contends, that the SSA's negligence caused him physical injury, by depriving him of the funds to pay for his over-the-counter medications. Id. at ¶¶ 28-31.

The Plaintiff also asserts two (2) claims for negligent infliction of emotion distress ("NIED"), against Ms. McCanon, and Mr. Baker, who are alleged to be SSA employees. Id. at ¶¶ 32-49. In his Complaint, the Plaintiff does not assert any facts which relate to either Ms. McCanon, or Mr. Baker.³ However, in his Affidavits, the Plaintiff provides additional background, which explains the basis for his claims against Ms. McCanon and Mr. Baker.⁴

With respect to the Plaintiffs claim against Mr. Baker, in his Third Affidavit, the Plaintiff avers that he visited his local SSA office in October of 2007, in order to challenge the deduction from his monthly benefits. See, Plaintiff's Third Affidavit, Docket No. 13, at ¶¶ 1, 3. The Plaintiff avers that Mr. Baker, who he identifies as an SSA employee, brought the Plaintiff to a cubicle, so as to discuss the deduction. Id. at ¶¶ 3-14. According to the Plaintiff, Mr. Baker explained that an erroneous deduction had been made, and that the Plaintiff would eventually receive a refund check. Id. at ¶¶ 3-14.

The Plaintiff then asked to speak with Mr. Baker's supervisor. Id. at ¶ 17. The Plaintiff avers that Mr. Baker agreed to find a supervisor, but that Mr. Baker also made what the Plaintiff deems an offensive, abusive, and inappropriate, comment to him. Id. at ¶¶ 18-23. The Plaintiff contends that he responded by shouting angrily at Mr. Baker. Id. at ¶ 23. In his Complaint, the Plaintiff asserts a claim for NIED, based upon Mr. Baker's "verbally abusive action," against Mr. Baker's employer, the Defendant. See, Complaint, supra at ¶¶ 41-49.

With respect to the Plaintiffs claim against Ms. McCanon, some additional background is required. On June 4, 2007—in the midst of the Plaintiffs efforts to challenge the deduction from his monthly benefits—the Plaintiff received a letter from the SSA, which advised that his benefits would cease, based upon the SSA's determination that his health had improved, and that he was no longer unable to work. See, Plaintiffs Exhibits to Complaint, supra at E-3. In the letter, the SSA advised that the Plaintiff had sixty (60) days to appeal the decision to cease his benefits. Id. It also advised that, if the Plaintiff wished to continue receiving benefits during his appeal, he must submit a request for the continuation of benefits, within ten (10) days. Id.

In his Second Affidavit, the Plaintiff avers that he requested an appeal, and requested a continuation of benefits during the appeal, by sending a letter to the SSA on June 11, 2007. See, Plaintiffs Second Affidavit, Docket No. 12, at 2. However, on June 13, 2007, the Plaintiff spoke to Ms. McCanon who, he avers, is an SSA employee, and who advised the Plaintiff that his letter was not sufficient to request a continuation of benefits. Id. at ¶ 3. In a subsequent voicemail message, Ms. McCanon advised that she had spoken with her supervisor, Mr. Fugina, and Ms. McCanon confirmed that the Plaintiffs benefits would cease if he did not submit appropriate paperwork, for a continuation of benefits, by June 15, 2007. Id. at ¶¶ 3-4. The Plaintiff understood that he was being directed to submit all of his paperwork relating to his appeal, rather than just his request for a continuation of benefits, within ten (10) days. Id. at ¶¶ 4-19. The Plaintiff avers that his conversation with Ms. McCanon caused him to suffer acute anxiety and depression. Id. at ¶ 5.

The Plaintiff further attests that, on June 19, 2007, he subsequently called the local SSA office to clarify when his appeal documents were due. Id. at ¶ 27. He was advised that his letter was insufficient to initiate an appeal, and that he should complete a...