     10-1851-cv
     Escalera v. Commissioner of Social Security



                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.



            At a stated term of the United States Court of Appeals for the Second Circuit,
     held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in
     the City of New York, on the 23rd day of November, two thousand eleven.

     PRESENT:
                 ROSEMARY S. POOLER,
                 BARRINGTON D. PARKER,
                 RAYMOND J. LOHIER, Jr.,
                       Circuit Judges.
     _________________________________________

     Mario Escalera,

                        Plaintiff-Appellant,

                        v.                                                    10-1851-cv

     Commissioner of Social Security,

                 Defendant-Appellee.
     _________________________________________

     FOR APPELLANT:                        Mario Escalera, pro se, Brooklyn, NY.

     FOR APPELLEE:                         Varuni Nelson, Kathleen A. Mahoney, and Arthur Swerdloff,
                                           Assistant United States Attorneys, on behalf of Loretta E.
                                           Lynch, United States Attorney, Eastern District of New
                                           York.
       Appeal from a judgment of the United States District Court for the Eastern District

of New York (Cogan, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

        Appellant Mario Escalera, proceeding pro se, appeals from the district court’s
dismissal of his Social Security action for failure to exhaust administrative remedies. We
assume the parties’ familiarity with the underlying facts, procedural history of the case, and
issues on appeal.

        In reviewing a district court’s dismissal of an action for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1), we review factual findings for clear error and legal
conclusions de novo. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
Likewise, we review a dismissal based on failure to exhaust administrative remedies de
novo. See Nichols v. Prudential Ins. Co. of Am., 406 F.3d 98, 105 (2d Cir. 2005)
(collecting cases). Pursuant to 42 U.S.C. § 405(g), an individual must obtain a “final
decision of the Commissioner of Social Security” (the “Commissioner”) before a district
court can review a Social Security benefits determination. The requirement of a “final
decision” has two components: (1) a jurisdictional, non-waivable requirement that a claim
for benefits has been presented to the agency, and (2) a waivable requirement that the
administrative remedies prescribed by the Commissioner have been exhausted.1 See
Bowen v. City of N.Y., 476 U.S. 467, 483 (1986); Mathews v. Eldridge, 424 U.S. 319, 328
(1976).

      The Social Security Act does not define the term “final decision,” but it empowers
the Commissioner to set out the procedures for obtaining a final decision. See 42 U.S.C.

       1
          Although the district court based its dismissal on a lack of subject matter jurisdiction,
the failure to exhaust is a waivable (i.e., non-jurisdictional) requirement under Section 405(g).
See Bowen, 476 U.S. at 483. Dismissal may not have been appropriate under Rule 12(b)(1), and
as the Commissioner’s motion involved consideration of matters outside the pleadings, dismissal
would have been improper under Rule 12(b)(6). See Friedl v. City of N.Y., 210 F.3d 79, 83 (2d
Cir. 2000). Nevertheless, since Escalera had “unequivocal” notice that the Commissioner’s
motion might be treated as one for summary judgment and of the nature and consequences of
summary judgment, as well as an opportunity to present opposing evidence (of which he took
advantage), the district court’s judgment was appropriate even if treated as a grant of summary
judgment pursuant to Rule 56. Hernandez v. Coffey, 582 F.3d 303, 307–08 (2d Cir. 2009)
(“[P]ro se parties must have ‘unequivocal’ notice of the meaning and consequences of
conversion to summary judgment.”); see also Cost v. Soc. Sec. Admin., 770 F. Supp. 2d 45, 49
(D.D.C. 2011) (converting motion to dismiss for failure to exhaust administration remedies in
Social Security case to a motion for summary judgment).

                                              2
§ 405(a); Weinberger v. Salfi, 422 U.S. 749, 766 (1975). In turn, the Commissioner has
devised a four-step process by which a claimant must exhaust administrative remedies
before proceeding to federal court. First, a claimant files an application for benefits and
receives an initial determination. 20 C.F.R. § 404.902. Second, if a claimant is dissatisfied
with the initial determination, he may seek reconsideration by filing a written request
within 60 days. 20 C.F.R. §§ 404.907, 404.909(a)(1). The reconsideration determination
is binding unless a claimant requests a hearing before an administrative law judge (“ALJ”)
within 60 days of receiving notice of the reconsideration determination. 20 C.F.R.
§§ 404.921(a), 404.933(b)(1). If the claimant is dissatisfied with the ALJ’s hearing
decision, he may request review by the Appeals Council within 60 days of receiving notice
of the hearing decision. 20 C.F.R. §§ 404.967, 404.968(a)(1). A claimant may seek an
extension of time of any of these deadlines by showing good cause. See 20 C.F.R.
§§ 404.909(b), 404.933(c), 404.968(b). The Appeals Council’s decision is considered
final, and a claimant may seek judicial review of that decision in district court. See
Califano v. Sanders, 430 U.S. 99, 101–02 (1977); 20 C.F.R. § 404.981.

        It is undisputed that Escalera presented his claim to the agency, satisfying section
405(g)’s jurisdictional requirement. However, as the district court correctly found, he
failed to exhaust his administrative remedies, given that he did not request reconsideration
of the agency’s initial May 2002 determination within 60 days, in writing.

        “Ordinarily, the [Commissioner] has discretion to decide when to waive the
exhaustion requirement. But . . . ‘cases may arise where a claimant’s interest in having a
particular issue resolved promptly is so great that deference to the agency’s judgment is
inappropriate.’” Bowen, 476 U.S. at 483 (quoting Eldridge, 424 U.S. at 330); see also
Bastek v. Fed. Crop Ins. Corp., 145 F.3d 90, 93 (2d Cir. 1998) (“In general, exhaustion of
administrative remedies is the rule, and waiver the exception[.]”). “[A] plaintiff’s failure to
exhaust administrative remedies can be excused if (1) the claim is collateral to a demand
for benefits, (2) exhaustion would be futile, or (3) requiring exhaustion would result in
irreparable harm.” Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997). Exhaustion issues
are resolved by “balancing the competing considerations to arrive at a just result.” State of
N.Y. v. Sullivan, 906 F.2d 910, 918 (2d Cir. 1990).

        Escalera’s claim is not collateral to his demand for benefits, as it involves a demand
for benefits and investigation into his wage earnings. Although he contends that the
agency has engaged in a faulty investigation, he has not shown that exhaustion would be
futile. A final agency decision and developed written record would ensure a more
complete review in federal court. Additionally, he is currently receiving benefits and has
not shown that “the harm suffered in the interim would be irreparable in the sense that no
post hoc relief would be adequate.” Smith v. Schweiker, 709 F.2d 777, 780 (2d Cir. 1983).
To the extent Escalera thought that in-person objections at the agency’s Brooklyn office
would satisfy the appeals process, nothing indicates that the agency had misled him to
believe as much; its notices plainly stated that he had to make his request in writing, within
60 days. Moreover, his failure to exhaust cannot be excused based on the terminology used
in his congressional representative’s 2008 letter, as the letter came years after he had
received the agency’s initial determination.
                                                3
        Insofar as Escalera sought mandamus relief in the district court based on the
agency’s decision not to credit him for several years he had allegedly worked and its
alleged failure to search for records, he did not prove that “no other adequate remedy” (i.e.,
completing the administrative process) was available. Benzman v. Whitman, 523 F.3d 119,
132–33 (2d Cir. 2008). Moreover, insofar as he seeks mandamus relief on appeal based on
the agency’s alleged failure to respond to his requests following the district court’s
dismissal, or claims for the first time on appeal that the Commissioner’s actions constitute
a violation of due process, we decline to consider such issues. See Singleton v. Wulff, 428
U.S. 106, 120 (1976).

       Our decision is, of course, without prejudice to any future action by Escalera
challenging the Commissioner’s course of action. The Commissioner has indicated that
Escalera’s request for reconsideration is currently being considered, and, if denied, his next
step would be to request an ALJ hearing.

       For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.


                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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