Zguro v. Commissioner of Social Security ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PERIKLI S. Z.,1
Plaintiff,
Case No.: 1:20-CV-00812-BAH-RMM
v.
KILOLO KIJAKAZI,
Acting Commissioner of Social Security,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff Perikli S. Z. (“Plaintiff” or “Mr. Z.”), appearing pro se, seeks the reversal of a
decision of the Commissioner of the Social Security Administration (“the Commissioner”) in
which an Administrative Law Judge (“ALJ”) suspended Mr. Z.’s Retirement Insurance Benefits
(“RIB”) after finding that the Department of Homeland Security (“DHS”) notified the Social
Security Administration (“SSA”) that Mr. Z. had been removed2 from the United States. See
generally Complaint, ECF No. 1. Mr. Z. contends that the ALJ erroneously determined that Mr.
Z. was removed, as opposed to finding that Mr. Z. voluntarily departed from the United States,
and that his disability benefits should not have been suspended. Id. at *2.
1
Plaintiff’s name has been partially redacted in keeping with the recommendation of the
Committee on Court Administration and Case Management of the Judicial Conference of the
United States. See Mem. from Hon. Wm. Terrell Hodges, Chair, Comm. on Ct. Admin. & Case
Mgmt., to Chief Judges of the U.S. Cts. of Appeals, Chief Judges of the U.S. Dist. Cts., Clerks of
the U.S. Cts. of Appeals, and Clerks of the U.S. Dist. Cts. (May 1, 2018), available at
https://www.uscourts.gov/sites/default/files/18-ap-c-suggestion_cacm_0.pdf.
2
Mr. Z.’s removal from the United States is referred to as both his “deportation” and
“removal” throughout the Administrative Record and the parties’ briefing. For consistency and
in keeping with the most current terminology, the undersigned will use the term “removal” in
this Report and Recommendation, unless quoting specific language in the record or referencing
specific documents that include “deportation” in the title.
Then-Chief Judge Beryl A. Howell referred this matter to the undersigned for full case
management including the preparation of a Report and Recommendation pursuant to Local Civil
Rule 72.3. See Order, ECF No. 5. Pending before the undersigned are Mr. Z.’s Motion for
Judgement of Reversal, ECF No. 22, and the Commissioner’s Motion for Judgment of
Affirmance, ECF No. 24. Having considered the parties’ submissions3 and the Administrative
Record,4 and for the reasons set forth below, the undersigned recommends that the Court DENY
Mr. Z.’s Motion for Reversal and GRANT the Commissioner’s Motion for Affirmance.
BACKGROUND
I. Factual and Procedural Background
A. Mr. Z.’s Initial Application
Mr. Z. applied to the SSA for RIB on November 25, 2008. See AR 76. His application
was approved on May 3, 2010, but the Notice of Award stated that his benefits would be
suspended beginning in April 2010 because he had been removed from the United States. See
AR 108. Mr. Z. filed a request for a hearing in which he raised two claims. See AR 114–15.
First, he claimed that he voluntarily departed from the United States, and was not removed, and
that his benefits should not have been suspended (“removal issue”). Id. Second, he challenged
the calculation of the amount of benefits he was awarded (“benefit calculation issue”). Id. The
3
The following filings and documents are relevant for this Report and Recommendation:
Compl., ECF No. 1; Pl.’s Mot. J. Reversal (“Pl.’s Mot.”), ECF No. 22; Def.’s Mot. J.
Affirmance, ECF No. 24; Def.’s Mem. in Supp. of Mot. J. Affirmance and Opp’n to Pl.’s Mot.
(“Def.’s Mem.”), ECF No. 25; Pl.’s Opp’n to Def.’s Mot. J. Affirmance (“Pl.’s Reply”), ECF
No. 26.
4
References to page numbers in the Administrative Record (“AR”), ECF No. 14, are to
the bold page numbers provided in the top right-hand corner of each page of the AR. Page
citations to documents in the record other than the AR refer to the document’s original
pagination, unless the page is designated with an asterisk (e.g., *1), in which case the reference is
to the pagination assigned by PACER/ECF.
2
request for a hearing was dismissed and his case was remanded for reconsideration. See AR 118.
On reconsideration, the Commissioner affirmed the initial decision, finding that the SSA’s
records indicated that Mr. Z. was removed from the United States on December 7, 2008, and he
was therefore not eligible to receive benefits until he was re-admitted into the United States as a
lawful permanent resident. See AR 127–28. The Commissioner also affirmed the decision
regarding the calculation of the amount of benefits Mr. Z. could receive for the period before he
was removed. See AR 128–29. Mr. Z. timely filed a request for a hearing before an ALJ, again
challenging both issues. See AR 130–133.
B. ALJ Hearing, Decision, and Appeals Council Decision on Removal Issue
On April 4, 2012, ALJ Jay Cohen conducted a hearing on Mr. Z.’s case (“April 2012 ALJ
Hearing”). See AR 52–74. Mr. Z. waived his right to appear at the hearing, and submitted an
affidavit designating Abdyl Koprencka as his representative, in which he stated that he was
“obligated” to leave the U.S. on December 8, 2012. See AR 54, 86.
Mr. Z.’s uncle, Larry Jance, testified first. See AR 57–52. He stated that Mr. Z. came to
the United States with a “visitor’s visa,” and after applying for and being granted one extension,
he did not apply for another extension because “he was afraid of being denied.” AR 58. Mr.
Jance testified that Mr. Z. applied for asylum and received work authorization. See AR 59, 61.
He explained that Mr. Z.’s request for asylum was denied, and Mr. Z. was subject to “[v]oluntary
deportation.” AR 60. He further elaborated that Mr. Z. “placed a bond after” his immigration
hearing and then “paid for his own fare going back.” Id. Mr. Jance explained that he could not
say whether Mr. Z. was authorized to work during his entire stay in the United States, because he
“[doesn’t] know the rules.” AR 62. He explained that Mr. Z. “worked very hard,” paid his taxes
in full, and did not commit any crime . . . [t]hen he was deported.” AR 60.
3
Mr. Z.’s cousin, John Jance, testified next. See AR 62–63. John Jance testified that Mr.
Z. “came in legally,” but when a renewal came “he was worried” and “that may have been the
genesis of where the problem began.” AR 64. He testified that Mr. Z. “had a legal job,” paid
taxes, and was never arrested “[a]s far as I know.” AR 63.
Lastly, Mr. Z.’s colleague Foma Arehoba testified. See AR 67. He testified that Mr. Z.
had authorization to work in the United States and paid “every year to renew” the authorization.
AR 69. After Mr. Z.’s asylum claim was denied, he continued to work and renew his
authorization “[u]ntil the end.” Id. He further testified that when Mr. Z. left the country “he paid
for the ticket himself, $500.” AR 71. He explained that Mr. Z. worked hard every day “without
missing a day of work” because he “wanted to put his children through college.” AR 69–70.
On July 2, 2012, the ALJ issued an unfavorable decision (“July 2012 ALJ Decision”),
finding that DHS notified SSA that Mr. Z. was ordered to be removed, and he was thus not
eligible for benefits. See AR 145. He found that Mr. Z.’s “presence in the country became
illegal in 1999, and in that year he was ordered to leave the United States voluntarily.” AR 144.
The ALJ explained that “[t]he evidence establishes that the date of [Mr. Z.’s] order of
deportation was December 7, 2008” and that he “immediately left this country for England.” Id.
He concluded that the SSA was made aware of Mr. Z.’s removal order, and rightly suspended his
benefits under section 202(n) of the Social Security Act (“the Act”). Id.
The ALJ found that the record could not “establish any credible evidence” that Mr. Z. left
the United States voluntarily. Id. “Instead, what is of record is the December 2008 deportation
order and [Mr. Z.’s] near simultaneous departure for England.” Id. He also emphasized that
“any private decision to leave this country voluntarily takes no precedence of the deportation
order.” Id. The ALJ also found that Mr. Z. applied for asylee status and was denied by DHS,
4
and that he had not been legally readmitted to the United States. See AR 144. The ALJ did not
address Mr. Z.’s claim that his benefits were calculated incorrectly. See AR 140–45.
Mr. Z. timely appealed the ALJ’s decision. See AR 148. The Appeals Council issued a
decision on March 20, 2014 (“March 2014 Appeals Council Decision”), finding that “[t]he
evidence supports the [ALJ’s] decision regarding [Mr. Z.’s] ineligibility for benefits,” and citing
Mr. Z.’s own statement in his affidavit that he was “obligated” to leave the country. AR 153.
Further, the Appeals Council examined the relevant provisions of the Immigration and National
Act (“INA”) and found that, because of the statutory “penalty” for failing to “voluntarily” depart,
Mr. Z.’s “departure was mandatory, even if it was labeled as ‘voluntary.’” Id.
The Appeals Council partially affirmed the ALJ’s ruling in a decision titled “Notice of
Order of Appeals Council Remanding Case to Administrative Law Judge.” AR 150–54.
Although the Appeals Council affirmed the ALJ’s decision on the removal issue, it pointed out
that the ALJ failed to address the benefit calculation issue, and remanded back to the ALJ for
further findings on that issue. Id. Nowhere in the decision was Mr. Z. advised that this was the
SSA’s final decision on the removal issue, nor was he informed about his right to seek judicial
review of the decision.
C. Subsequent Proceedings on the Benefit Calculation Issue
On June 20, 2014, the SSA sent Mr. Z. a Notice of Hearing which clarified that the
upcoming hearing would be limited to the benefit calculation issue. See AR 158–59. The
hearing took place on July 23, 2014 before ALJ Jay Cohen. See AR 32. Abdyl Koprencka again
represented Mr. Z. Id. The ALJ told Mr. Koprencka at the hearing that removal “[i]s not an
issue” because the Appeals Council “did not send that back.” AR 45. He emphasized that “[t]he
only issue” concerned the amount of benefits owed before Mr. Z. left the United States, and that
the immigration “issue is over.” AR 46. Mr. Z. could not be reached by telephone during this
5
hearing, so a subsequent ALJ hearing was scheduled and took place on October 2, 2014. See AR
20–29. During that hearing, at which Mr. Z. did appear via telephone, the ALJ explained that
“[t]he issue of deportation has already been decided” and “affirmed by the Appellate
Authorities.” AR 24. Following the hearings, the ALJ issued an unfavorable decision on the
benefit calculation issue (“February 2015 ALJ Decision”). See AR 173. Because the March
2014 Appeals Council Decision instructed the ALJ to only consider the benefit calculation issue,
he did not analyze the removal issue; instead the ALJ noted in the “Evaluation of the Evidence”
section that the July 2012 ALJ Decision “found that the claimant’s benefits were lawfully
terminated because he was subject to a deportation order.” AR 181.
Mr. Z. requested review of the February 2015 ALJ Decision, see AR 187, and the
Appeals Council vacated the decision and remanded—this time to a different ALJ—for further
consideration of the benefit calculation issue (“August 2017 Appeals Council Decision”). See
AR 192–197. On September 24, 2018 Mr. Z. received a favorable decision from the new ALJ on
the benefit calculation issue (“September 2018 ALJ Decision”). See AR 6–16. Once again,
because the ALJ was only instructed to consider the benefit calculation issue, the September
2018 ALJ Decision did not analyze the removal issue but instead cited the July 2012 ALJ
Decision and March 2014 Appeals Council Decision’s analysis of that issue. See AR 9–16. In
the “Jurisdictional and Procedural History” section, the ALJ explained that the July 2012 ALJ
Decision “upheld the decision to terminate benefits due to the deportation of the claimant.” AR
9. In the “Evaluation of the Evidence” section, the ALJ explained that the March 2014 Appeals
Council Decision “found that the ALJ’s decision was correct regarding the termination of
benefits” and remanded for further consideration of the benefit calculation issue. AR 14. In the
“Findings” section, the ALJ found that Mr. Z. “was [] deported.” AR 16.
6
D. Mr. Z.’s Request for Reconsideration of the Removal Issue and Appeals Council
Decision
On November 14, 2018 Mr. Z. filed a Request for Review of Hearing Decision/Order
(“November 2018 Request for Review”), arguing that “[t]he decision to terminate [his] pension
[was] wrong and flawed.” AR 218. He requested “a review to reopen and review the decision
for termination of [his] pension,” again asserting that he left the United States voluntarily and
was not removed. AR 221.
The Appeals Council responded on January 27, 2020 (“January 2020 Appeals Council
Decision”), denying Mr. Z.’s request to reopen the decision suspending his benefits because
there was “no clerical error in that decision or error on the face of the evidence that was
considered when the decision was made.” AR 3–4. The Appeals Council further noted that Mr.
Z. did not have a right to judicial review of the denial of his request to reopen. See AR 4.
However, the decision also stated that Mr. Z. did have the right to judicial review of the
September 2018 ALJ Decision, included information about how to file a civil action in federal
court, and instructed Mr. Z. that he had 60 days to do so. See AR 1–3. This information was not
contained in the March 2014 Appeals Council Decision on the removal issue. See AR 150–54.
E. The Instant Litigation
Mr. Z. subsequently filed this civil action, requesting that the Court reverse the
Commissioner’s decision to suspend his retirement benefits and award him benefits from the
date of suspension through the present day. See Compl. at *4. After Mr. Z. filed his Motion for
Reversal, see generally Pl.’s Mot., the Commissioner filed a cross motion requesting that the
Court affirm the Commissioner’s decision. See generally Def.’s Mem. The Commissioner
argues that the Court does not have jurisdiction over this matter because SSA denials of requests
to reopen a decision are not subject to judicial review; in the alternative, the Commissioner
7
asserts that even if jurisdiction existed, the ALJ properly suspended Mr. Z.’s benefits, and the
Appeals Council properly denied his request to reopen the decision. Id. at 3–4.
LEGAL STANDARD
I. Prerequisites for Judicial Review of SSA Decisions
The Social Security Act, 42 U.S.C. § 405(g), permits a plaintiff to seek judicial review, in
the federal district court, of “any final decision of the Commissioner of Social Security made
after a hearing to which he was a party.” Contreras v. Comm’r of Soc. Sec., 239 F. Supp. 3d 203,
206 (D.D.C. 2017). The SSA application and appeals process includes four steps before judicial
review is permitted. Smith v. Berryhill, 139 S. Ct. 1765, 1772 (2019). First, the applicant files a
claim with the SSA. See 20 C.F.R. § 404.603. Second, if the claim is denied, the applicant is
permitted to request administrative reconsideration within sixty days. Id. § 404.909. Third, if
the request for reconsideration is unsuccessful, the applicant may ask for an evidentiary hearing
before an ALJ. Id. § 404.930. Fourth, if the ALJ does not find in favor of the applicant, the
applicant may appeal the decision to the SSA’s Appeals Council. Id. § 404.968. Finally, once
all those steps are exhausted, if the applicant has not received a favorable decision, he may file a
civil claim in federal court seeking judicial review within 60 days of receiving notice of the
Appeals Council’s decision. Id. § 404.981.
Only final decisions of the Commissioner are subject to judicial review. See 42 U.S.C. §
405(g). The term “final decision” is undefined in the Act, and “its meaning is left to the
[Commissioner] to flesh out by regulation.” Weinberger v. Salfi, 422 U.S. 749, 767 (1975). The
regulations differentiate between “initial determinations,” which are subject to judicial review,
and “actions that are not initial determinations,” which are not reviewable. See 20 C.F.R. §§
404.902–03. A determination about a claimant’s “entitlement to benefits” is reviewable, id. §
8
404.902, but a denial of a “request to reopen a determination or a decision” is not. Id. § 404.903;
see also Califano v. Sanders, 430 U.S. 99, 107–08 (holding that judicial review of decisions by
the Commissioner denying a request to reopen a case is usually not permitted). There is a
narrow exception to this rule—when a constitutional question is presented, judicial review of the
Commissioner’s denial of a request to reopen a case is appropriate. Califano, 430 U.S. at 109.
II. Substantive Review of Social Security Administration Rulings
The court must uphold the Commissioner’s determination if it “is based on substantial
evidence in the record and correctly applies the relevant legal standards.” Butler v. Barnhart,
353 F.3d 992, 999 (D.C. Cir. 2004); see 42 U.S.C. § 405(g). The substantial evidence standard
of review is “highly deferential to the agency fact-finder” and “require[es] only such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Rossello ex
rel. Rossello v. Astrue, 529 F.3d 1181, 1185 (D.C. Cir. 2008) (quoting Pierce v. Underwood, 487
U.S. 552, 565 (1988)) (internal quotation marks omitted); see also Richardson v. Perales, 402
U.S. 389, 401 (1971); Butler, 353 F.3d at 999. The standard requires more than a scintilla [of
evidence], but can be satisfied by something less than a preponderance of the evidence.” Butler,
353 F.3d at 999 (quoting Fla. Mun. Power Agency v. FERC, 315 F.3d 362, 365-66 (D.C. Cir.
2003)) (internal quotation marks omitted).
Notwithstanding the deferential nature of the standard, courts must give the record
“careful scrutiny” and “determine whether the Secretary, acting through the ALJ, has analyzed
all evidence and has sufficiently explained the weight he has given to obviously probative
exhibits.” Sims v. Sullivan, 877 F.2d 1047, 1050 (D.C. Cir. 1989) (citations and internal
quotation marks omitted). “A reviewing court should not be left guessing as to how the ALJ
evaluated probative material, and it is reversible error for an ALJ to fail in his written decision to
9
explain sufficiently the weight he has given to certain probative items of evidence.” Hartline v.
Astrue, 605 F. Supp. 2d 194, 203 (D.D.C. 2009); Simms, 877 F.2d at 1050 (quoting Stewart v.
Sec’y of Health, Educ., and Welfare of the U.S., 714 F.2d 287, 290 (3d Cir. 1983)) (explaining
that the court must determine whether the ALJ “has analyzed all evidence and has sufficiently
explained the weight he has given to obviously probative exhibits”) (internal quotation marks
omitted). However, the court “may not reweigh the evidence and replace the [Commissioner’s]
judgment regarding the weight of the evidence with its own.” Cunningham v. Colvin, 46 F.
Supp. 3d 26, 32 (D.D.C. 2014) (quoting Brown v. Barnhart, 370 F. Supp. 2d 286, 288 (D.D.C.
2005)) (alteration in original) (internal quotation marks omitted); Butler, 353 F.3d at 999.
DISCUSSION
I. Mr. Z.’s Complaint is Subject to Judicial Review
Before proceeding to the merits of Mr. Z.’s claims, the undersigned must first determine
whether Mr. Z. has timely challenged a reviewable decision of the Commissioner. As outlined
above, Mr. Z.’s claims were reviewed at numerous levels of the SSA in a series of rulings. The
procedural history before this litigation commenced includes: (1) the July 2012 ALJ Decision,
finding Mr. Z. ineligible for benefits due to his removal; (2) the March 2014 Appeals Council
Decision, partially affirming the July 2012 ALJ Decision and remanding only for further findings
regarding the calculation of benefits; (3) the February 2015 ALJ Decision, which resolved the
benefit calculation issue unfavorably to Mr. Z. and did not revisit the removal issue; (4) the
August 2017 Appeals Council Decision, vacating and remanding the February 2015 ALJ
decision for further consideration of the benefit calculation issue; (5) the September 2018 ALJ
Decision, which resolved the benefit calculation issue in Mr. Z.’s favor and repeated but did not
substantively examine the prior ALJ’s conclusion regarding Mr. Z’s removal and eligibility for
10
benefits; and (6) the January 2020 Appeals Council Decision denying Mr. Z.’s request to reopen
the September 2018 ALJ decision. The Commissioner contends that this appeal challenges only
the January 2020 Appeals Council Decision, and thus is not judicially reviewable. See Def.’s
Mem. at 10–11. The Commissioner is correct that Appeals Council rulings declining to reopen
an earlier ALJ decision generally are not appealable to federal district courts, absent a
constitutional challenge that is not presented here. See 20 C.F.R. §§ 404.902, 903; Califano, 430
U.S. at 107–09. However, as discussed below, the record does not support such a narrow
reading of the scope of Mr. Z.’s complaint.
Mr. Z.’s complaint does not focus solely on the Appeals Council’s denial of his request to
reopen his case. He ties the timeliness of his complaint to the January 2020 Appeals Council
Decision, noting that the Commissioner refused to reopen his case, and that his appeal was filed
within 65 days of that decision. See Pl.’s Mot. at 1.5 However he also asserts that the July 2012
ALJ Decision and an October 2014 ALJ decision6 were “biased and unfair.” Id. at 3. He further
notes that the September 2018 ALJ Decision partially overturned the earlier ALJ rulings. Id.
With respect to the merits, he contends that the SSA erroneously concluded that he had been
removed when in fact he had left the country voluntarily. Id. at 2.
Because Mr. Z. is a pro se litigant, his complaint must be “liberally construed,” and
“however inartfully pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
5
Mr. Z. appears to calculate the deadline for filing as “within 60 days of the date of that
decision . . . plus five days after.” Compl. at *1. His complaint was filed 57 days after the
January 2020 Appeals Council Decision was issued.
6
No ALJ decision was issued in October 2014. The hearing held in October 2014
underpins the February 2015 ALJ Decision.
11
U.S. 97, 106 (1976) (citation omitted)); see also Schmidt v. Shah, 696 F. Supp. 2d 44, 58 (D.D.C.
2010) (“[W]here . . . the action is brought by a pro se plaintiff, the Court must take particular
care to construe the plaintiff’s filings liberally.”). Mr. Z.’s complaint makes it evident that he is
challenging the Commissioner’s decision to suspend his benefits. See, e.g., Compl. at *4 (“I
respectfully request a court review [of] the decision to terminate my pension by Social Security
Administration, and to overturn that decision by awarding me the full pension from the period
from March 2009 until the present day.”) (emphasis added). Construed liberally, it is an inartful
attempt to appeal the Commissioner’s substantive determination, first made in the July 2012 ALJ
Decision, and then referenced in the September 2018 ALJ Decision, that his removal made him
ineligible for retirement benefits after January 2009.
At first glance, the fact that the only ALJ decision that substantively examined the
removal issue was issued in July 2012—nearly eight years before Mr. Z. filed a complaint in this
Court—suggests that this appeal may be untimely. Appeals of final SSA decisions must be filed
within sixty days of receiving notice of the decision. See 20 C.F.R § 404.981; Johnston v.
Colvin, 221 F. Supp. 3d 18, 20 (D.D.C. 2016). However, as explained below, there was no final
appealable decision regarding the removal issue until January 2020, when the Appeals Council
affirmed the September 2018 ALJ Decision and advised Mr. Z., for the first time, of his right to
pursue an appeal.
After the July 2012 ALJ Decision was issued, a series of appellate rulings vacating and
partially remanding the calculation of benefits issue prevented the ALJ’s resolution of the
removal issue from becoming final. If the Appeals Council had declined to review the July 2012
decision, the July 2012 decision would have become a final ruling. See Jeffries v. Astrue, 723 F.
Supp. 2d 185, 194 (D.D.C. 2010) (noting that if “the Appeals Council denies review . . . the
12
ALJ’s decisions represents the agency’s final decision”); see also 20 C.F.R. § 404.981. If the
Appeals Council had affirmed or reversed the July 2012 ALJ Decision in its entirety, the 2014
Appeals Council Decision would have become the operative final decision for purposes of an
appeal to district court. See Sims v. Apfel, 530 U.S. 103, 106–07 (2000); Browning v.
Sullivan, 958 F.2d 817, 822 (8th Cir. 1992) (“If the Appeals Council grants review, its decision
(absent a remand to the ALJ) becomes the Secretary’s final agency action.”).
The Appeals Council took neither action. Instead, it concluded that evidence supported
the ALJ’s conclusion that Mr. Z. was ineligible for benefits as of February 2009, but the ALJ
committed legal error by failing to address an aspect of the benefit calculation issue. See AR
153. Consequently, the Appeals Council “vacate[d] the hearing decision and remand[ed]” Mr.
Z.’s case back to the ALJ for further consideration of the benefit calculation issue. AR 151. As
other courts have recognized, “an order of the Appeals Council vacating an ALJ’s recommended
decision and remanding for further proceedings is ordinarily not an appealable final decision.”
Weeks v. Soc. Sec. Admin. Comm’r, 230 F.3d 6, 8 (1st Cir. 2000); see also Duda v. Sec’y of
Health and Human Servs., 834 F.2d 554, 555 (6th Cir. 1987) (concluding Appeals Council ruling
was not a final decision when the Appeals Council affirmed only part of the ALJ’s decision and
remanded for further proceedings); Culbertson v. Shalala, 30 F.3d 934, 937 (8th Cir. 1994)
(“Appeals Council’s decision to remand [Claimant’s] case for a new evidentiary hearing” was
not an appealable final decision.). Nothing in the 2014 Appeals Council Decision suggests that
this ruling should be construed contrary to that general rule, nor is there any precedent
suggesting that Mr. Z. could have appealed the benefits eligibility ruling while remand
proceedings were pending regarding the benefits calculation issue.
13
After the 2014 Appeals Council Decision, the benefits calculation issue was the subject
of multiple hearings and rulings by the ALJ and the Appeals Council. In August 2017, on an
appeal of the first remand decision (the February 2015 ALJ Decision), the Appeals Council again
vacated the ALJ’s ruling and remanded for further proceedings. See AR 192–197. After that
second remand, a different ALJ issued the September 2018 ALJ Decision which was “fully
favorable” to Mr. Z. on the benefits calculation issue. AR 6–16.
Neither the February 2015 nor September 2018 ALJ Decision substantively reexamined
the ALJ’s earlier decision that Mr. Z. had been removed and was thus ineligible for benefits after
2009. The ALJ who issued the February 2015 ALJ Decision advised Mr. Z. that the benefits
eligibility issue was not before him on remand. See AR 45–46. The ensuing decision did not
address the issue of removal beyond noting in the procedural history that Mr. Z. “was placed
under a deportation order and, before he was deported, voluntarily left the country,” AR 176, and
briefly summarizing the July 2012 ALJ Decision. See AR 181. The substantive analysis in the
September 2018 ALJ Decision also focused solely on the benefits calculation issue. See AR 9–
16. However, in the “Findings” section, the ALJ repeated the ruling from July 2012, concluding
that Mr. Z. “was first eligible for benefits as of May 2008. He was subsequently deported, but
remained eligible for benefits for the period from May 2008 through January 2009.” AR 16.
By including the removal issue in its findings, the September 2018 ALJ Decision
effectively incorporated by reference the July 2012 ALJ Decision. See Wilson v. Comm’r, Soc.
Sec. Admin., No. 3:15-CV-00691, 2016 WL 1598867, at *5 (D. Or. Apr. 20, 2016) (noting that
court could construe ALJ reference to binding nature of prior ruling that was outside the scope of
the remand as impliedly incorporating that prior ruling by reference); see generally Conejo v.
Colvin, No. 10-CV-706, 2014 WL 4264945, at *9 (C.D. Cal. Aug. 27, 2014) (“[I]t is not
14
improper for an ALJ to incorporate a previous decision and supplement it with a subsequent
decision.”). When the Appeals Council reviewed Mr. Z.’s November 2018 Request for Review,
see AR 218–21, it construed the request as an appeal of the September 2018 ALJ Decision. See
AR 1, 3–4. The September 2018 ALJ Decision became a final appealable decision when the
Appeals Council rejected Mr. Z.’s appeal in the January 2020 Appeals Council Ruling. The
Appeals Council thus advised Mr. Z. that he had a right to appeal the September 2018 ALJ
decision even though he lacked the right to appeal the Appeals Council decision not to reopen
prior proceedings. See AR 2. Mr. Z. filed his complaint within 60 days of receiving notice of
the January 2020 Appeals Council Ruling, and thus has timely and properly raised in this Court a
challenge to the ALJ’s finding that he was ineligible for benefits due to his removal.
II. The ALJ’s Decision to Suspend Mr. Z.’s RIB Based on His Removal Was
Supported by Substantial Evidence and Consistent with Applicable Law
The undersigned will now consider whether to recommend affirmance or reversal of the
Commissioner’s substantive determination—first made in the July 2012 ALJ Decision, and then
incorporated by reference into the September 2018 ALJ Decision—that Mr. Z. was ineligible for
retirement insurance benefits after January 2009 due to his removal. The ALJ’s decision to
suspend Mr. Z.’s retirement insurance benefits must be upheld “if it is based on substantial
evidence in the record and correctly applies the relevant legal standards.” Butler, 353 F.3d at
999 (citation omitted). Substantial evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401 (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
Mr. Z. does not appear to dispute the ALJ’s conclusion that removal would render Mr. Z.
ineligible for RIB. An individual who has been removed from the United States as deportable
under section 237(a) of the INA (8 U.S.C. § 1227(a)), or removed as inadmissible under section
15
212(a)(6)(A) of the INA (8 U.S.C. § 1182(a)(6)(A)), with some limited exceptions, cannot
receive benefits under the Act.7 See 42 U.S.C. § 402(n) (§ 202(n) of the Act); 20 C.F.R. §
404.464; see also Isaraphanich v. Comm’r of Soc. Sec. Admin., No. 12-CV-0700, 2013 WL
3168141, at *5 (D.D.C. June 21, 2013). SSA receives monthly data from DHS identifying
individuals who were removed from the United States, and an alert is then produced to flag
within SSA’s systems that the claimant has been removed.8 See POMS RS 02635.010(B)–(C)
(including sample Deportation/Removal Alert). “Once the Attorney General notifies the
Secretary that a person was deported under one of the listed sections of the INA, suspension of
benefits is automatic.” Marcello v. Bowen, 803 F.2d 851, 855 (5th Cir. 1986). Mr. Z. does not
contend that an exception to that rule applies here.9 Accordingly, the ALJ did not commit legal
error in concluding that, if Mr. Z was removed, his removal would disqualify him from
continuing to receive retirement insurance benefits.
Mr. Z. takes issue with the ALJ’s factual finding that he was removed from the United
States. Mr. Z. contends that he left voluntarily. The success of Mr. Z.’s appeal thus turns on
whether substantial evidence supports the ALJ’s conclusion. Although Mr. Z. may want the
7
This prohibition also applies to individuals who were “[d]eported under the provisions
of section 241(a) of the [INA] that were in effect before April 1, 1997.” See C.F.R. § 404.464.
8
Every month, DHS forwards the SSA a notice of removal for every individual that was
removed from the United States during the previous month. See Program Operations Manual
System (“POMS”) RS 02635.005(A). That data is then entered into the SSA’s Disability,
Railroad, Alien, and Military Service (“DRAMS”) file. See POMS RS 02635.005(B)(1).
Among other things, the data includes each individual’s name, “alien registration number,” date
of removal, and the grounds for removal through a “final charge code.” POMS RS
02635.005(B)(2).
9
Individuals who are removed for certain grounds may continue to receive benefits. See
POMS RS 02635.005(D)(1) (outlining exceptions to the termination of benefits based on an
individual’s removal).
16
court to reexamine and make independent factual findings regarding his immigration status at the
time of his departure from the United States, the court cannot “reweigh the evidence” or
substitute its own judgment for that of the SSA. Cunningham, 46 F. Supp. 3d at 32.
A. Substantial Evidence Supports the ALJ’s Conclusion Regarding Mr. Z.’s Removal
Status and its Impact on His Eligibility for Benefits
In the July 2012 ALJ Decision, the ALJ made six findings that collectively lead to the
conclusion that Mr. Z.’s benefits should be suspended:
1. The Claimant has been unlawfully present in the United States since 1999.
2. The Claimant was ordered deported by order dated December 7, 2008.
3. The Claimant left the United States in December 2008, and has not returned as
a lawfully present alien.
4. The claimant applied for asylee status. This request was denied by the
Department of Homeland Security.
5. The Commissioner of Social Security was made aware of the order of
deportation.
6. The Claimant is not eligible for retirement insurance benefits under section
202(n) of the Social Security Act.
AR 145. While some of the ALJ’s analysis is lacking in rigor, he weighed the evidence and
sufficiently explained his decision, and drew conclusions that are supported by substantial
evidence in the record.
The ALJ first found that “[i]t was determined that [Mr. Z.’s] presence in this country
became illegal in 1999.” AR 144. Although no citation was included for this assertion, the
record supports this finding. Specifically, an internal Report of Contact document dated
February 20, 2009 states that Mr. Z. “was ordered to leave the U.S. voluntarily in 1999.” AR 83.
Further, the Administrative Record includes an Immigration Bond for voluntary departure in Mr.
Z.’s name dated March 22, 1998, which indicates that Mr. Z. would have been a party to
immigration proceedings around that date. See AR 88. The April 2012 ALJ Hearing testimony
that Mr. Z. did not apply for a visa extension because “he was afraid of being denied,” AR 58,
and that he was subject to “[v]oluntary deportation” further supports this finding. AR 86. These
17
records and testimony provide substantial evidence that Mr. Z.’s presence in the United States
became illegal in 1999.
Second, the ALJ found that “[t]he evidence establishes that the date of [Mr. Z.’s]
deportation order was December 7, 2008.” AR 144. Again, record evidence supports this
finding despite the ALJ’s failure to cite it. Another internal SSA document indicates that
“DRAMS shows that [Mr. Z.] was deported on 12/07/2008.” AR 93. Mr. Z.’s own statement in
an affidavit that he was “obligated” to leave the United States on December 8, 2008 further
supports this finding. AR 86. Neither the Notice of Deportation, Alien Deportation Information,
DRAMS entry, nor the Deportation/Removal Notice are found in Mr. Z.’s Administrative
Record. See generally AR. The support for this finding would be stronger if the Administrative
Record contained those documents. See, e.g., Isaraphanich, 2013 WL 3168141, at *5
(concluding that the plaintiff’s Notice of Deportation, Alien Deportation Information, and
DRAMS entry provided substantial evidence “that the Department of Justice notified the [SSA]
that the Plaintiff was deported”); Sibisan v. Bowen, No. 88-CV-497, 1989 WL 281921, at *2
(N.D. Ohio May 31, 1989) (citing the plaintiff’s Notice of Deportation as evidence that the
Justice Department had notified the SSA that the plaintiff had been removed). Nonetheless, the
SSA’s internal document reporting what DRAMS shows is adequate to satisfy the substantial
evidence standard.
Third, the ALJ found that, following the issuance of Mr. Z.’s deportation order, he
“immediately left this country for England . . . and has not returned.” AR 144. The SSA’s
Report of Contact states that Mr. Z. left the United States on December 8, 2008. See AR 83. Mr.
Z. himself states that “[o]n 8 December 2008 I left the United States.” Pl.’s Reply at *2. An
individual whose benefits were suspended due to having been removed can regain eligibility
18
after having been lawfully readmitted. See 42 U.S.C. § 402(n)(1). There is no evidence in the
record that Mr. Z. has been lawfully readmitted, see generally AR, nor does Mr. Z. argue that he
has. See generally Pl.’s Mot. Thus substantial evidence supports the ALJ’s third finding.
Fourth, the ALJ found that “the record establishes that [Mr. Z.] did in fact seek asylee
status from [DHS]. However, this request was denied.” AR 144. The SSA’s Report of Contact
states that Mr. Z. “requested asylum but it was denied.” AR 87. This is further supported by the
statement of Mr. Z.’s representative in the April 2012 ALJ Hearing, Abdyl Koprencka, that
“[Mr. Z.] applied for asylum, but asylum was denied.” AR 56. The ALJ’s fourth finding is thus
supported by substantial evidence.
Fifth, the ALJ found that “the Commissioner of Social Security received notification that
[Mr. Z.] was not lawfully present in the United States when he applied for benefits . . . and that
he had been deported from this country.” AR 144. The internal SSA note references Mr. Z.’s
DRAMS entry, the presence of which, based on the notification process described above,
indicates that DHS notified the SSA that Mr. Z. had been removed. See AR 97. The note also
includes Mr. Z.’s DHS “final charge code” as 1B, which is information that could only be
obtained through DHS notification. Id.; see also POMS RS 02635.005(B)(2) (final charge code
“reflect[s] the specific grounds as determined by DHS under which a person was removed”).
Thus there is substantial evidence that DHS notified the SSA that Mr. Z. had been removed.
Finally, the ALJ concluded that Mr. Z. is not eligible for retirement benefits under section
202(n) of the Act. See AR 145. As discussed above, there is substantial evidence that the SSA
notified DHS that Mr. Z. had been removed. See Rossello, 529 F.3d at 1185 (“Substantial-
evidence review is highly deferential to the agency fact-finder, requiring only ‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’”)
19
(quoting Pierce, 487 U.S. at 565 (internal quotation marks omitted)). The final charge code is
not one that would exempt a removed individual from the suspension of eligibility for benefits.
See POMS RS 02635.001(D)(1) (providing list of final charges codes reflecting grounds for
removal that do not require suspension of benefits). Thus the ALJ properly applied section
202(n) of the Act in finding that Mr. Z.’s benefits should be suspended. See Butler, 353 F.3d at
999 (“The [SSA’s] ultimate determination will not be disturbed if it . . . correctly applies the
relevant legal standards.”); Marcello, 803 F.2d at 855 (suspension of benefits is automatic when
SSA receives notification that an individual has been removed); POMS RS 02635.001(D)(1).
B. Mr. Z.’s Assertion that He Voluntarily Departed the United States Does Not
Require Reversal of the ALJ Rulings
Mr. Z. contends that his benefits should not be suspended because he was not removed,
and instead left the United States voluntarily. See Compl. at *2. The ALJ found that there was
no “credible evidence that [Mr. Z.] left the country voluntarily,” and that “any private decision to
leave the country voluntarily takes no precedence of the deportation order.” AR 144. The
Commissioner asserts that this Court is not the proper forum to collaterally attack the accuracy of
DHS’s classification of Mr. Z as a person who had been removed, and that there is no evidence
that the ALJ’s rulings were incorrect. See Def.’s Mem. at 18; see generally Marcello, 803 F.2d
at 855 (when considering suspending an individual’s benefits under § 202(n) of the Act, the SSA
“does not, and by [its] own policy statements must not, look behind the Notice of Deportation to
the circumstances surrounding its issuance.”).
Although the interpretation of immigration laws is within the expertise of DHS and not
SSA, Mr. Z.’s arguments about his voluntary departure are properly before the Court. The SSA
Program Operation Manual directs that removal data received from DHS should be presumed
accurate unless “[o]ther evidence or allegation indicate a formal removal never occurred (e.g.,
20
the NH claims he/she was given the option of leaving the U.S. voluntarily before or after a
removal order was issued).” POMS RS 02635.015(B). The ALJ considered and rejected Mr.
Z.’s argument that he had voluntarily departed the United States. See AR 144. The issue is thus
within the scope of Mr. Z.’s appeal to this Court.
Voluntary departure is a term of art in immigration law, and refers to a process by which
certain individuals may be given an opportunity to leave the United States voluntarily, instead of
being subject to a removal order, thereby avoiding the negative consequences of having officially
been removed. See 8 U.S.C. § 1229(c). Individuals given permission to voluntarily depart must
do so within 60 or 120 days, depending on the specific nature of their immigration case, and they
must do so “at [their] own expense.” Id. §§ 1229(c)(a)(2)(A), 1229(c)(b)(2), 1229(c)(a)(1). An
individual who is permitted to voluntarily depart may be required to post a bond, which is
returned after furnishing proof that the individual departed from the United States within the
specified time period. Id. §§ 1229(c)(a)(3), 1229(c)(b)(3).
Voluntary departure benefits individuals who are permitted to use it because if they
depart within the mandated time period they “are not considered by DHS to have been removed,”
and thus may not have their benefits suspended under section 202(n) of the Act. POMS RS
02635.015(E)(3). But if an individual does not depart during the mandated time period, the
voluntary departure order generally becomes a removal order, and any subsequent departure is
considered a self-removal. See 8 C.F.R. § 1240.26(d) (“Upon granting a request made for
voluntary departure either prior to the completion of proceedings or at the conclusion of
proceedings, the immigration judge shall also enter an alternate order or removal.”). In addition,
individuals who “leave the United States on their own while under a formal order of removal and
without having been given the option of ‘voluntary departure’ are generally considered to have
21
removed themselves and are subject to suspension under the SSA removal provisions (section
202(n)) as long as they were not ordered removed under grounds that except them from
suspension.” POMS RS 02635.015(E)(3); see also 8 C.F.R. § 241.7 (“Any alien who has
departed from the United States while an order of deportation or removal is outstanding shall be
considered to have been deported, excluded and deported, or removed,” unless the individual
was granted voluntary departure and the mandated time period had not elapsed).
The Administrative Record indicates that Mr. Z. might have been granted voluntary
departure in proceedings that occurred around 1998. See AR 88. On March 22, 1998, Mr. Z.
was issued a bond for “voluntary departure.” Id. In addition, Larry Jance testified in the April
2012 ALJ Hearing that Mr. Z. “was deported . . . it was voluntary . . . he paid for his own fare
going back, which he placed a bond after the hearing.” AR 60. But the issuance of the voluntary
departure bond, and the fact that he remained in the United States and did not depart within 60 or
120 days of March 22, 1998, supports a finding that Mr. Z.’s presence in the United States
became illegal in 1999. The SSA’s records for Mr. Z. include a final charge code from DHS,
which indicates that DHS notified SSA that Mr. Z. had been removed. That supports a finding
that, even if Mr. Z. had been granted voluntary departure around 1998, the voluntary departure
order had become a removal order by the time Mr. Z. left the country. If Mr. Z. left the United
States while a removal order was active for him, regardless of whether he was physically
“deported” or not, suspension of benefits was still appropriate.10 See POMS RS
02635.015(E)(3). Accordingly, the ALJ’s rejection of Mr. Z.’s voluntary departure arguments
comply with the applicable law and are supported by substantial evidence. See AR 144.
10
The March 2014 Appeals Council affirmed the July 2012 ALJ Decision based on
similar reasoning. See AR 153 (“[Mr. Z.’s] departure was mandatory, even if it was labeled as
‘voluntary.’”).
22
This finding is further supported by Mr. Z.’s own filings, which essentially concede that a
removal order was issued. His complaint asserts that “after I left the country, I discovered that
the Immigration Office has recorded my status incorrectly as if I was deported.” Compl. at *2.
Mr. Z. further explains that “[t]he Immigration Office puts everyone in the same category of
forced deportations, which is wrongly recorded in my case. I have not had the opportunity to
challenge the records that the Immigration Office holds for me.” Id. “Instead of dealing with
serious offenders of your immigration laws, DHS goes after a poor person like me.” Pl.’s Reply
at *2. As discussed above, when the SSA receives notice from DHS that an individual had been
removed, the suspension of that individual’s benefits is appropriate.
Accordingly, the undersigned finds that the July 2012 ALJ Decision, which was
incorporated by reference into the September 2018 ALJ Decision, relied on substantial evidence
and complied with applicable law in finding that Mr. Z.’s RIB should be suspended based on his
removal.
III. Mr. Z.’s Challenge to the Fact that the Same ALJ Presided Over His Case Twice
Has No Merit
Mr. Z. alleges that the Commissioner improperly assigned his case to the same ALJ when
it was remanded following the March 2014 Appeals Council Decision. See Compl. at *3. He
claims that “[t]he rules of SSA are that when cases are reviewed, they must be reviewed by a
different Administrative Judge from the original one, but in my case it was referred to the same
Judge.” Id. This assertion misstates the SSA’s assignment protocol. As the Commissioner
correctly points out, “[Appeals Council] remands are assigned to the same ALJ who issued the
decision or dismissal unless . . . the case was previously assigned to that ALJ on prior remand
from the [Appeals Council] and the ALJ’s decision or dismissal after remand is the subject of the
new [Appeals Council] remand; or the [Appeals Council] directs that the case be assigned to a
23
different ALJ.” Hearings, Appeals, and Litigation Law Manual I-2-1-55(D)(6); see also Def.’s
Mem. at 16. The March 2014 Appeals Council Decision remanding Mr. Z.’s case was the first
remand, and the Appeals Council did not direct that the case should be assigned to a different
ALJ. Remand to the same ALJ who first heard Mr. Z.’s case was thus proper.
RECOMMENDATION
For the foregoing reasons, the undersigned recommends that the Court DENY Mr. Z.’s
Motion for Reversal and GRANT the Commissioner’s Motion for Affirmance.
REVIEW BY THE DISTRICT COURT
The parties are hereby advised that under the provisions of Local Rule 72.3(b) of the
United States District Court for the District of Columbia, any party who objects to the Report
and Recommendation must file a written objection thereto with the Clerk of this Court within 14
days of the party’s receipt of this Report and Recommendation. The written objections must
specifically identify the portion of the report and/or recommendation to which objection is made,
and the basis for such objections. The parties are further advised that failure to file timely
objections to the findings and recommendations set forth in this report may waive their right of
appeal from an order of the District Court that adopts such findings and recommendation. See
Thomas v. Arn, 474 U.S. 140 (1985).
2023.05.11
13:03:59 -04'00'
Dated: May 11, 2023 ____________________________________
ROBIN M. MERIWEATHER
UNITED STATES MAGISTRATE JUDGE
24