Melvin v. Soc. Sec. Admin.

• Decision Date: 27 August 2015
• Docket Number: No. 5:14–CV–170–F.,5:14–CV–170–F.
• Citation: 126 F.Supp.3d 584
• Parties: Pamela MELVIN, Plaintiff, v. The SOCIAL SECURITY ADMINISTRATION, et al., Defendants.
• Court: U.S. District Court — Eastern District of North Carolina

126 F.Supp.3d 584

Pamela MELVIN, Plaintiff,

v.The SOCIAL SECURITY ADMINISTRATION, et al., Defendants.

No. 5:14–CV–170–F.

United States District Court, E.D. North Carolina, Western Division.

Signed Aug. 27, 2015.

Pamela Melvin, Fayetteville, NC, pro se.

Elizabeth Pharr McCullough, Kelly Street Brown, Nathan D. Childs, Young, Moore & Henderson, P.A., Michael James, Raleigh, NC, for Defendants.

ORDER

JAMES C. FOX, Senior District Judge.

This matter is before the court on the Motions to Dismiss [DE–51; DE–74] filed by Defendants the Social Security Administration and Assad Meymandi, M.D., respectively. Also before the court are the following motions filed by the pro se Plaintiff Pamela Melvin: Motion for a Stay of the Proceedings [DE–88]; Expedited Motion for a Protection Order with Affidavit [DE–101]; Motions for the Court to Immediately Order SSA's Attorneys to Terminate their Access to her Computer and Smart Phone and to Require Defendants to Respond to her Future Motions [DE– 103]; Motion to File a Delayed Second Amended Complaint [DE–108]; Motion for Leave to File a Second Amended Complaint [DE–109]; Motion for the Court to Change the Caption of this Action [DE–110]; Motion for Leave to File Documents Under Seal [DE–114]; Motion for Defendant Meymandi to Clarify his Statements [DE–120]; Motion to Strike Defendant's SSA [sic] Objections, Statements and Defenses [DE–121]; and Motion to Strike Defendant's [sic] Meymandi's Statements in DE 75, 115, and 118 [DE–122]. These matters are ripe for ruling.

I. BACKGROUND

The allegations in Plaintiff's proposed Second Amended Complaint are as follows. Plaintiff applied for disability benefits in 1995, and was awarded those benefits by an Administrative Law Judge ("ALJ") in 1996 with a backdated disability onset date to 1995. Prop. Sec. Am. Compl. [DE–109–1] ¶¶ 11, 27–33. Subsequently, in 1997, the ALJ who determined that Plaintiff was disabled retired. Id. ¶ 34. Shortly thereafter, Plaintiff received notice from the SSA that it was reopening her claim on the basis that her disability did not start in 1995. Id. ¶ 37. Plaintiff appealed that decision, and had a hearing before another ALJ in February 1998. Id. ¶¶ 37, 39. According to Plaintiff, "[a]t the very start of the hearing, [the second] ALJ stated that Plaintiff's case was reopened because [the first ALJ] died.... All statements made by [the second ALJ] on February 2, 1998 were recorded." Id. ¶ 39. The second ALJ granted Plaintiff's request to continue the hearing, and rescheduled it for May 28, 1998. Id. ¶ 40.

Plaintiff contends that the focus of the May hearing was whether she was disabled at all, and not whether the disability started in 1996 as opposed to 1995; she contends that she was not notified of this determination prior to the start of the hearing. Id. ¶¶ 41–42. Plaintiff asserts that at the close the hearing, the second ALJ "stated to Plaintiff that his supervisors in Washington DC told him that he had to rule that Plaintiff was never disabled or he would lose his job." Id. ¶ 45. Plaintiff contends she requested a copy of the recording of the May 1998 hearing several times, but was never provided with the recording and was informed by various SSA employees that the recording was missing. Id. ¶¶ 53–71. At some point, Plaintiff was again awarded disability benefits, with a backdated disability onset date to 1995. Additionally, in the early 2000s, Plaintiff submitted to the U.S. Department of Veterans Affairs ("VA") a service-connected compensation claim that included, but was not limited to, a claim for mental and emotional distress and depression resulting from sexual abuse she alleges she encountered while serving in the Army in the 1970s.Id. ¶ 76.

In May 2004, Plaintiff received a letter from the SSA stating that her disability benefits were terminated and that she had been overpaid $54,628. Id. ¶ 95. About a year and a half later, in January 2006, Plaintiff filed an application for Social Security Disability Insurance Benefits, stating that she was disabled to due, inter alia, Rheumatoid arthritis

, depression, anxiety, and military service-connected Post Traumatic Stress Disorder ("PTSD"). Id. ¶ 75. Plaintiff contends that as part of the 2006 application, she signed a consent form permitting Defendant to obtain the medical records of private doctors and doctors at the Veterans Administration ("VA") who had treated her. Id. ¶ 78. She also had to submit to examinations with two additional doctors, including Defendant Meymandi. Id. ¶ 78. Plaintiff asserts that during Meymandi's April 11, 2006, evaluation, she provided information in response to his questions, including "that she never used drugs, that she was not and had never married, that she never dated after leaving the Army, a list of her jobs since leaving the Army including that she was a police officer ..." Id. ¶ 234. She also told Meymandi about things she "experienced while she was in the United States Army in the 1970s including, but not limited to ... the stalking and attackes [sic] [by a male service member] and the sexual abuse of [another service member], and the sexual harassment of other males, and that as a result, caused her to never dated [sic], marry, and to prefer asexual men-type clothing after leaving the Army." Id. ¶ 235. Plaintiff alleges that at the close of the evaluation, Meymandi told her "that she did have PTSD and that with proper counseling, she could overcome her past and get married." Id. ¶ 237. Subsequently, Plaintiff sought a copy of Meymandi's evaluation from Meymandi directly, but was told she could only receive a copy of the evaluation from the SSA. Id. 84, 87–88.

Plaintiff alleges that later in 2006, she was informed that SSA had granted her 2006 application for benefits, and found her "to be disabled as of September 2005 as the result of mood disorders and anxiety-related disorders." Id. ¶ 261. Plaintiff further requested a waiver of the recoupment of the $54,628 that SSA alleged she had been overpaid, and the SSA denied her request for waiver on July 12, 2006. Id. ¶ 97. Plaintiff filed an appeal of the decision to deny the request for waiver on July 17, 2006, but before the appeal was heard, she filed an action in this court on August 4, 2006, naming the Commissioner of the Social Security Administration as a defendant. See Melvin v. Barnhart, No. 5:06–CV–306–FL ("2006 action").

As summarized in an order issued by the Hon. Louise Flanagan, United States District Judge, in the 2006 action plaintiff asserted "that defendant did not adequately explain the basis for the decision, and that defendant's [sic] denied plaintiff her right to file a review and personal conference, as set out in 20 C.F.R. § 404.510 et seq., prior to recovering the overpayment." Melvin v. Barnhart, No. 5:06–CV–306–FL, slip. op. at 4 (E.D.N.C. April 11, 2007). Defendant in the 2006 action filed a motion to remand, stating:

The Commissioner is unable to locate the plaintiff's claim file and hearing tape, and is therefore requesting a remand to search for the file and tape. If the claim file and tape cannot be located within a reasonable amount of time, the plaintiff's claim will be remanded to an Administrative Law Judge to offer the plaintiff an opportunity for a new hearing and for reconstruction of the file.

Melvin v. Barnhart, No. 5:06–CV–306–FL, October 5, 2006 Motion to Remand. Judge Flanagan allowed the motion to remand, stating that "[i]f the file and hearing tape are not located within a reasonable time, the Commissioner is directed to reconstruct the file and to prove the plaintiff with the opportunity for a de novo hearing before an Administrative Law Judge." Melvin v. Barnhart, No. 5:06–CV–306–FL, slip op. at 1 (E.D.N.C. Oct. 13, 2006). Plaintiff promptly filed a motion to reconsider, and Defendant filed a motion to dismiss. Judge Flanagan allowed Defendant's motion to dismiss, detailing Defendant's efforts to allow Plaintiff to exhaust her administrative remedies, and finding that the court lacked subject matter jurisdiction because of Plaintiff's failure to exhaust those remedies. She further instructed "defendant to treat plaintiff's filing of complaint in this action to have represented a protective filing of the administrative appeal referenced in the July 12, 2006 notice, and to proceed to an expedited administrative review of that and any other pending appeal(s) filed by plaintiff, with plaintiff being afforded all appropriate rights of due process as set forth in the Commissioner's regulations." Melvin v. Barnhart, No. 5:06–CV–306–FL, slip op. at 13 (E.D.N.C. April 11, 2007).

In 2009, Plaintiff filed another action in this court, Melvin v. Social Security Administration, 5:09–CV–235–FL ("2009 action"), "seeking monetary and injunctive relief and invoking the Privacy Act, 5 U.S.C. § 552a, the Freedom of Information Act ("FOIA"), 5 U.S.C. § 522, the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 –2680, and the Fifth Amendment to the United States Constitution." See Melvin v. Social Security Administration, 5:09–CV–235–FL, slip. op. at 1–2 (E.D.N.C. May 13, 2010). She alleged "deficiencies in the SSA's treatment of her administrative appeal, specifically asserting that the SSA (1) failed to comply with this court's order in Melvin v. Barnhart, No. 5:06–CV–306–FL (E.D.N.C. Apr. 11, 2007), directing it to grant plaintiff an expedited review of her administrative appeal, (2) failed to respond to her document requests pursuant to FOIA and the Privacy Act, and (3) failed to maintain plaintiff's administrative disability benefits record." Id.

Judge Flanagan construed some of Plaintiff's claims in the 2009 action as stating Fifth Amendment Procedural Due Process claims, and dismissed those claims for lack of subject matter jurisdiction. See Melvin v. Social Security Administration, 5:09–CV–235–FL, slip op. at 6–7 (E.D.N.C. May 13, 2010). Judge Flanagan also dismissed Plaintiff's claim under the FTCA for lack of subject matter...