Case Name in Social Security Case - Unavailable

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
JED ADELMAN,
Plaintiff,
-against-
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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MEMORANDUM & ORDER
24-CV-6891(EK)
ERIC KOMITEE, United States District Judge:
Jed Adelman challenges the Commissioner of Social
Security’s determination that he was not entitled to benefits
after April 2012. 	Proceeding pro se,1 Adelman argues that the
Second Circuit’s prior decision in his favor in Adelman v.
Berryhill, 742 F. App’x 566(2d Cir. 2018), entitles him to such
1 Adelman’s parents are prosecuting this suit on his behalf because he
is intellectually disabled. 	Parents “have standing to initiate a suit in
[their child’s] behalf as next friends” if their child is incompetent to do
so. 	Schuppin v. Unification Church, 435 F. Supp. 603, 605 (D. Vt. 1977),
aff'd, 573 F.2d 1295 (2d Cir. 1977). 	While “[i]t is . . . a well-
established general rule in this Circuit that a parent not admitted to the
bar cannot bring an action pro se in federal court on behalf of his or her
child,” that rule is not “absolute.” 	Tindall v. Poultney High Sch. Dist.,
414 F.3d 281, 284-85 (2d Cir. 2005) (emphasis added). 	In particular, the
Second Circuit has held that it is permissible for a non-attorney parent to
bring “an SSI appeal on behalf his or her children [when he or she] has a
sufficient interest in the case and meets basic standards of competence.”
Machadio v. Apfel, 276 F.3d 103, 107 (2d Cir. 2002). 	In Apfel, the mother
had a “significant stake in the outcome of the litigation" because she would
likely be the representative payee for any SSI benefits to which her minor
child was entitled and the child’s “qualification for disability benefits”
would therefore “affect [her] responsibility for the expenses associated with
[her child’s] condition.” 	Id. at 106. 	Although this case involves a legally
incompetent adult child, rather than a minor, and SSDI, rather than SSI, the
parents’ interest is the same: Adelman’s mother is his representative payee,
see, e.g., Colon Decl. Ex. 1, ECF No. 15-1, and any benefits she receives on
her son’s behalf will defray the cost of his care.
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benefits.2 	The Commissioner moves to dismiss or, in the
alternative, for summary judgment, arguing that Adelman has
misread Berryhill and has failed to exhaust his administrative
remedies before challenging the benefits determination in
federal district court. 	The Commissioner is correct, and
summary judgment is therefore granted.
Background
Adelman is intellectually disabled and suffers from
epilepsy and rheumatoid arthritis. 	Compl. 7, ECF No. 1.3 	He
began receiving Social Security benefits in 1999. 	Adelman v.
Colvin, No. 14-CV-5826, 2016 WL 4991545, at *1 (E.D.N.Y. Sept.
19, 2016). 	In February 2001, he began working as a laboratory
technician at Stony Brook University. 	Berryhill, 742 F. App’x
at 567. 	More than two years later, in April 2003, the
Commissioner informed Adelman that he was no longer entitled to
disability benefits because his work in the laboratory
constituted substantial gainful work activity (“SGA”). 	Id. at
568. 	The Commissioner determined that Adelman was required to
return benefits received between September 2001 and March 2003.
Id.
2 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
3 The Social Security Administration had “not been made aware” of
Adelman’s rheumatoid-arthritis diagnosis as of the commencement of this
lawsuit. 	Compl. 7.
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Adelman challenged the Commissioner’s determination,
initiating a decade-long administrative review process. 	Id.4 	At
the end of that process, a district court concluded that Adelman
had not engaged in SGA because he had only performed his job
with the help of a job coach and other accommodations. 	Id. at
570; see also 20 C.F.R. § 404.1573(c) (work done under “special
conditions” may not qualify as SGA). 	On appeal, the Second
Circuit went further. 	It affirmed the district court’s
decision, and it also held that the Commissioner had not
sufficiently shown that Adelman was engaged in SGA even after
March 2003. 	Id. at 575. 	Importantly, though, the circuit court
did not hold that Adelman had an “affirmative entitlement to
benefits . . . going forward,” but rather that Adelman should
receive interim benefits until the Commissioner demonstrated
that he was not entitled to them. 	Id. 	That determination
“requir[ed] different evidence and different factual findings”
than those before either the Commissioner or the district court.
Id.
The Commissioner then began developing a new record.
He asked Adelman to complete an updated work activity report to
determine his eligibility for continuing benefits. 	SSA Ltr. to
4 That process involved “four hearings before two different
Administrative Law Judges . . . as well as three decisions from the SSA’s
Appeals Council, which, after twice remanding the case for rehearing based on
procedural errors, issued a final decision in the Commissioner's favor in
2014.” 	Berryhill, 742 F. App’x at 568.
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Adelman dated Feb. 24, 2020, Colon Decl. Ex. 1, ECF No. 15-1.
Adelman refused to respond to the requests, asserting that the
Second Circuit’s decision in Berryhill was “the law,” which the
Commissioner did not have “the legal authority to overturn.”
E.g., Adelman Resp. Ltr dated Sept. 8, 2020, Colon Decl. Ex. 4.
The Commissioner, based on letters already in his possession
that described Adelman’s work status through April 2012,
concluded that Adelman was eligible for benefits up that date.
Notice of Proposed Decision, Colon Decl. Ex. 5. 	But because the
Commissioner had no information as to Adelman’s work
circumstances after April 2012, he concluded that Adelman was no
longer eligible for benefits as of May 2012. 	Id. 	The
Commissioner sought a refund of more than $150,000 in past
benefits. 	Notice of Change in Benefits, Colon Decl. Ex. 9 at
18.
In a September 2023 notice informing Adelman of this
decision, the Commissioner said Adelman had “the right to
appeal” the decision before the SSA within sixty days. 	Id. at
20. 	Adelman submitted a request for reconsideration, Colon
Decl. Ex. 9, which remains pending. 	See Colon Decl. at 3.
Because the administrative record remains incomplete, the
posture of this case differs from that of a typical Social
Security appeal.
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Legal Standard
If a motion to dismiss or for judgment on the
pleadings “includes material outside the pleadings” and the
court chooses to consider that material, then the court must
construe the motion as one for summary judgment. 	Sira v.
Morton, 380 F.3d 57, 66 (2d Cir. 2004) (citing Fed. R. Civ. P.
12(d)). 	Here, the Commissioner’s motion to dismiss includes
exhibits that were not appended to (or incorporated into) the
complaint. 	These include the SSA’s communications with Adelman
during its investigation of his work status, Colon Decl. Exs. 3,
5, and Adelman’s replies to these communications. 	Id. Exs. 2,
4.5 	Therefore, conversion to a summary judgment motion is
appropriate.
Upon conversion to a motion for summary judgement, a
court must provide parties “a reasonable opportunity to present
all the material that is pertinent to the motion.” 	Fed. R. Civ.
P. 12(d). 	A party is deemed to have notice of a conversion if
that party “should reasonably have recognized the possibility”
that it would occur. 	Sira, 380 F.3d at 68. 	The government has
moved for summary judgment in the alternative, and has attached
“extensive materials that were not included in the pleadings,”
indicating it “plainly should have been aware of the likelihood
5 These communications are also not matters of public record that the
Court may judicially notice when resolving a Rule 12 motion. 	Stewart v.
Transp. Workers Union, Local 100, 561 F. Supp. 2d 429, 435 (S.D.N.Y. 2008).
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of such a conversion.” 	Id. 	As for Adelman, the Commissioner
appended a notice to his motion advising Adelman that the Court
may convert the government’s motion to one for summary judgment.
ECF No. 10-4; see also Local Civ. R. 12.1. 	Such a notice is
sufficient to alert pro se parties that a motion to dismiss may
be converted to one for summary judgement. 	Villafane v.
Sposato, No. 16-CV-3674, 2017 WL 4179855, at *8 (E.D.N.Y. Aug.
22, 2017) (collecting cases). 	Moreover, Adelman himself
attached various exhibits to his reply brief, ECF No. 17, and
supplemental submissions, ECF Nos. 19, 21-22, 24-25, for the
Court’s review in connection with his motion.
The Court therefore applies the summary judgment
standard.6 	Summary judgment is appropriate when “the movant
shows that there is no genuine dispute as to any material fact”
and that he “is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). 	A genuine dispute is one that can “reasonably
be resolved in favor of either party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986). 	Material facts are those
that may “affect the outcome under the applicable substantive
law.” 	Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). 	The
6 Adelman titles his motion as one for judgment on the pleadings under
Rule 12(c). 	ECF No. 17. 	But because he filed his motion after the
government’s (which is best viewed as a motion for summary judgment), the
Court construes Adelman’s filing as an opposition memorandum and cross-motion
for summary judgment. 	Even if the Court were to construe Adelman’s motion as
one for judgment on the pleadings, the outcome here would not change.
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moving party can discharge its burden of proof by pointing out
to the Court “that there is an absence of evidence to support
the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S.
317 (1986). 	The burden then shifts to the non-moving party to
put forth “specific facts showing that there is a genuine issue
for trial.” 	LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir.
1998).
Discussion
A. 	Administrative Exhaustion
The Commissioner argues that Adelman has failed to
exhaust his administrative remedies, so his complaint is
premature. 	Adelman argues that Berryhill proves he has
satisfied the exhaustion requirement. 	Pl.’s Br. 3, ECF No. 17.
But the fact that Adelman exhausted his remedies before seeking
judicial relief in Berryhill does not mean he is exempt from the
exhaustion requirement in a new SSA proceeding. 	And because the
undisputed facts clearly show that Adelman has not exhausted his
administrative remedies, the Commissioner is entitled to summary
judgment.
Section 405(g) of the Social Security Act outlines the
“exclusive method for judicial review” of Social Security
determinations. 	Gellman v. Sullivan, 758 F. Supp. 830, 833
(E.D.N.Y. 1991). 	That section states that an individual may
challenge a “final decision of the Commissioner of Social
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Security made after a hearing” within sixty days of receiving
notice of such decision. 	42 U.S.C. § 405(g). 	The Commissioner
has the authority to define “final decision” by regulation.
Weinberger v. Salfi, 422 U.S. 749, 766 (1975). 	Under prevailing
Social Security Administration (“SSA”) regulations, a decision
is final once it has proceeded through (1) initial
determination; (2) reconsideration; (3) hearing before an
administrative law judge; and (4) request for review by the
Appeals Council. 	20 C.F.R. § 404.900(a)(1)-(5).
The record reveals that Adelman has not proceeded past
the second stage of SSA review, see Colon Decl. at 3, and thus
there is no final decision to challenge. 	The Commissioner gave
Adelman an initial determination of his decision. 	Notice of
Change in Benefits, Colon Decl. Ex. 9 at 18. 	Adelman then
submitted a reconsideration request. 	Id. at 1. 	At the time of
suit, that request was still pending before the SSA. 	Colon
Decl. at 3. 	And “[i]t is well settled that before any person
may bring an action in federal court regarding a decision about
Social Security benefits, he must exhaust administrative
remedies.” 	Martin v. Comm’r, No. 19-CV-5430, 2022 WL 4586174,
at *1 (S.D.N.Y. Sept. 29, 2022).
To be sure, the administrative exhaustion requirement
is waivable. 	Escalera v. Comm’r of Soc. Sec., 457 F. App’x 4, 5
(2d Cir. 2011). 	But the Commissioner ordinarily “has discretion
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to decide when to waive the exhaustion requirement,” id. at 6,
and he has not exercised that discretion here. 	The requirement
also does not apply if (1) the plaintiff’s claim is collateral
to a demand for benefits; (2) exhaustion would be futile; or (3)
exhaustion would result in irreparable harm. 	Id. 	Nothing in
the record suggests that any of these listed exceptions apply,
and Adelman has not argued otherwise.
In sum, the record reveals that Adelman has not
exhausted his administrative remedies. 	It also shows that none
of the exceptions to the exhaustion requirement apply. 	So,
Adelman is not yet entitled to judicial review of the
Commissioner’s initial benefits determination, and the
Commissioner is entitled to summary judgment.
B. 	The Berryhill Decision
Even if we were to reach the merits of Adelman’s
argument, we would still grant summary judgment to the
Commissioner. 	Adelman argues that the Commissioner has no right
to demand a benefits refund, because the Second Circuit’s
decision in Berryhill entitles Adelman to benefits in
perpetuity. 	Thus, he argues, this case is fundamentally
improper, because the Commissioner is simply ignoring the “the
authority of [the Berryhill] decision.” 	Compl. 4.
But Adelman misreads the Second Circuit’s opinion.
The appellate court expressly declined to hold that Adelman was
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entitled to benefits going forward. 	Berryhill, 742 F. App’x at
575. 	It simply granted Adelman interim benefits until the
Commissioner could provide a reasoned explanation for taking
those benefits away. 	Id. 	The Commissioner has now done so. 	He
has concluded, after an independent fact-finding exercise, that
Adelman received job coaching through April 2012. 	Colon Decl.
Exs. 5, 9. 	The Commissioner lacked any information about
Adelman’s work status beyond that date, and Adelman refused to
provide such information. 	Id. 	So, the Commissioner was unable
to extend its assessment past April 2012 and concluded Adelman
was ineligible for benefits after that date. 	Id.
Adelman may, of course, challenge the Commissioner’s
decision administratively, and eventually in federal district
court. 	But, at bottom, nothing in the Second Circuit’s opinion
prohibited the Commissioner from making a new determination as
to Adelman’s eligibility for benefits. 	Berryhill therefore does
not control.
Conclusion
For the foregoing reasons, the Commissioner’s cross-
motion for summary judgment is granted. 	Adelman’s is denied.
The Clerk of Court is respectfully directed to enter judgment,
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mail a copy of this order and the judgment to plaintiff, and
close this case.
SO ORDERED.
/s/ Eric Komitee__________
ERIC KOMITEE
United States District Judge
Dated: 	March 12, 2026
Brooklyn, New York
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