Hecht v. Barnhart, 00 CV 3996(JM).

• Decision Date: 26 August 2002
• Docket Number: No. 00 CV 3996(JM).,00 CV 3996(JM).
• Parties: Daniel HECHT, by his Co-Guardian, Donald Hecht, Plaintiff, v. Jo Anne BARNHART, Commissioner of the Social Security Administration,<SMALL><SUP>1</SUP></SMALL> Defendant.
• Court: U.S. District Court — Eastern District of New York

217 F.Supp.2d 356

Daniel HECHT, by his Co-Guardian, Donald Hecht, Plaintiff, v. Jo Anne BARNHART, Commissioner of the Social Security Administration,¹ Defendant.

No. 00 CV 3996(JM).

United States District Court, E.D. New York.

August 26, 2002.

COPYRIGHT MATERIAL OMITTED

Kassoff, Robert, Lerner & Robert, LLP, Rockville Centre, NY (Charles Robert, of counsel), for Plaintiff.

Alan Vinegrad, United States Attorney, Eastern District of New York, Central Islip, NY, By Vincent Lipari, A. U.S.A., for Defendant.

Memorandum of Decision and Order

SPATT, District Judge.

On May 12, 2000, the Social Security Administration ("SSA") determined that Daniel Hecht was eligible for Supplemental Security Income (SSI) payments. The SSA reduced his monthly benefits, however, because he received monthly disbursements from his Supplemental Needs Trust to pay his room and board. Plaintiff moves for a remand pursuant to the sixth sentence of 42 U.S.C. § 405(g) and the Commissioner of Social Security ("Commissioner") cross-moves for a judgment affirming the decision, arguing that the Commissioner properly determined the amount of SSI benefits to award plaintiff and that his final decision must, therefore, be affirmed under 42 U.S.C. §§ 405(g) and 1383(c)(3).

Background

Daniel Hecht ("Daniel") was born on December 14, 1974. When Daniel was three months old, he suffered from a severe reaction to a pertussis inoculation and became permanently disabled. He cannot walk, talk, or perform any activities of daily living. On May 2, 1988, Daniel received a settlement from a malpractice lawsuit in the amount of $500,000. In 1992, funds from the settlement were placed in a conservatorship account. In April 23, 1996, the Supreme Court, Nassau County, issued an order transferring the funds to a Supplemental Needs Trust Fund ("SNT") pursuant to Article 81 of New York's Mental Hygiene Law and appointed Daniel's parents as co-guardians. The court granted Daniel's parents the power to make reasonable expenditures for Daniel's supplemental needs, including monthly expenditures in the amount of $750.00 for room and board.

On April 30, 1996, Plaintiff filed an application for SSI disability benefits. On June 14, 1996, Plaintiff filed a second application for SSI disability benefits. On June 27, 1996, the Social Security Administration ("SSA") denied Plaintiff's first application because it determined that Daniel had unearned monthly income in the amount of $750. On August 2, 1996, Plaintiff requested reconsideration. On May 14, 1998, the SSA granted Plaintiff's second application but reduced the monthly SSI payment based on his receipt of monthly income for food, clothing, or shelter. The SSA valued Daniel's income at $176.66 for June through December 1996, at $181.33 for January through December 1997, and at $184.66 for January through May 1998. On May 19, 1998, Plaintiff appealed this decision. On February 12, 1999, SSA issued a re-determination notice on Plaintiff's first application and determined that Daniel was eligible for reduced SSI payments for those months.

On February 22, 1999, Plaintiff requested a hearing before an administrative law judge. On September 15, 1999, Administrative Law Judge Emanuel Poverstein reversed the decision of the SSA and determined that because the Supplemental Needs Trust funds were excluded as a resource for SSI purposes, any use of the funds for room and board should be excluded as well. On November 3, 1999, Plaintiff was advised that the Appeals Council intended to review ALJ Poverstein's decision. On May 12, 2000, the Appeals Council vacated ALJ Poverstein's decision and issued a new decision finding that the disbursements from the SNT to pay from Daniel's room and board constituted chargeable unearned income in the form of in-kind support and maintenance.

On July 11, 2000, Plaintiff filed this action. In this complaint, Plaintiff alleges that (1) Defendant has breached his Article II, Section 3 Constitutional duty to "take care that the laws be faithfully executed." by failing to follow the holdings in Christensen v. Harris Cty., 529 U.S. 576, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000), White v. Apfel, 167 F.3d 369 (7th Cir.1999), Ruppert v. Bowen, 871 F.2d 1172 (2d Cir. 1989), and Jackson v. Schweiker, 683 F.2d 1076 (7th Cir.1982); (2) Defendant violated the Due Process Clause of the Constitution by failing to set forth in his awards and denial notices the standards used to compute benefits and citations to applicable regulations; (3) Defendant violated the Due Process Clause of the Constitution by presuming the availability of assets that were in a trust that stated that the trustees were not to distribute the funds if it would result in a loss of government entitlements; (4) Defendant violated "the Equal Protection Clause of the Constitution by denying the mentally incapacitated plaintiff SSI benefits which are provided to competent SSI recipients because the SSA Commissioner presumes the availability of resources under the jurisdiction of the State Court for which there has not been an order to distribute the funds for `support and maintenance' which results in the denial of SSI benefits because a different standard is applied to incompetent SSI recipients than applied to competent SSI recipients;" (5) Defendant "implemented an arbitrary and capricious policy and practice not to apply" 20 C.F.R. § 416.1201, regarding the liquidity of resources; (6) Defendant "implemented an arbitrary and capricious policy and practice not to apply" 20 C.F.R. § 416.1130(b), regarding the definition of in-kind support and maintenance; and (7) Defendant violated Plaintiff's "federal and state statutory rights" in violation of 42 U.S.C. § 1983.

Plaintiff seeks an award of full benefits retroactive to the initial date of his SSI application, and injunctive relief, including orders that the Commissioner end his policy and practice of not "acquiesc[ing]" to the White holding and to "State Court orders that limit the use of funds under the jurisdiction of State Court Judges," that the Commissioner implement a policy and practice of issuing notices and agreements and issue an accurate POMS² section pursuant to 20 C.F.R. § 416.1242, and that the Commissioner amend the SSA regulations to establish a national standard in compliance with the Jackson holding.

On August 7, 2001, Plaintiff moved to remand the case for the reasons set out in the complaint. On October 11, 2001, Defendant cross-moved for judgment affirming the final decision of the SSA.

I. Plaintiff's Motion to Remand

A. Remand for purposes of complying with Executive Orders

Plaintiff first argues that Defendant has failed to comply with Executive Orders 13217, 12606, 12612, and 12778. Plaintiff seeks a remand pursuant to the sixth sentence of 42 U.S.C. § 405(g) to provide the SSA with an opportunity to comply with these Executive Orders. In this regard, the law is clear that there is no private right of action to enforce obligations imposed on executive branch officials by executive orders. Zhang v. Slattery, 55 F.3d 732, 747 (2d Cir.1995), cert. denied, 516 U.S. 1176, 116 S.Ct. 1271, 134 L.Ed.2d 217 (1996). Rather, an executive order is privately enforceable only if it is issued pursuant to a statutory mandate or delegation of congressional authority. Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1336 (4th Cir.1995). In fact, Executive Order 13217 states that it is

intended only to improve the internal management of the Federal Government and does not create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.

Accordingly, Plaintiff's request for a remand on this basis must be denied.

B. Plaintiff's Due Process Claim

Relying on Ford v. Shalala, 87 F.Supp.2d 163 (E.D.N.Y.1999), Plaintiff argues that Defendant violated the Due Process Clause of the Constitution because the May 14, 1998 notice did not inform him of the standards used in computing benefits with a citation to the applicable regulations. Plaintiff therefore seeks an order remanding the case "in order that the defendant has an opportunity to comply with Judge Sifton's unappealed Ford decision."

In Ford, Chief Judge Sifton held that notices sent to SSI applicants denied those applicants due process of law when they did not identify the provision of federal law, federal regulation, or POMS citation that the Commissioner applied to make determinations to grant or deny, change, or terminate benefits. Id. at 186. Here, the parties agree that the May 14, 1998 notice falls within the dates in the definition of the Ford class. Further, it is clear that the May 14, 1998 notice does not meet the Ford requirements. Defendant argues, however, that a remand would be inappropriate because the relief to class members ordered in Ford is the modification of further notices, not remands of pending court cases. Defendant also contends that Plaintiff did not suffer any prejudice from the lack of legal citations since Plaintiff appealed the notice and the Commissioner's final decision did provide the applicable legal citations.

The final judgment in the Ford case specifies that the class members' remedy is the modification of future notices. Ford v. Apfel, 2000 WL 281888, at *1 (E.D.N.Y. January 13, 2000). Therefore, the decision in Ford does not compel this Court to remand this case so that the SSA can provide Plaintiff with a statement containing the citations upon which the SSA relied in reducing his benefits. Further, this Court agrees with Defendant that there is no reason to remand this case since the final decision provided the legal citations applicable to the SSA's calculation of his benefits. Accordingly, Plaintiff's request for a remand for the purpose of obtaining a new notice with citations is denied.

C. Defendant's failure to follow the holdings in Christensen, Wh...