Gonzalez v. Commissioner of Social Security
| Hector Gonzalez |
| Commissioner of Social Security and Nancy A. Berryhill |
| 1:2021cv00287 |
| January 19, 2021 |
| US District Court for the Eastern District of New York |
| Brian M Cogan |
| Social Security: SSID Tit. XVI |
| 42 U.S.C. § 405 Review of HHS Decision (SSID) |
| None |
Docket Report
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| Filing 36 Letter to pro se Plaintiff regarding service of Defendant's Motion to Dismiss, supporting documents, and applicable notices by Commissioner of Social Security (Attachments: #1 Notice Pursuant to Local Rule 7.2, #2 Notice Pursuant to Local Rules 12.1 and 56.2) (Tankard, Frank) |
| Filing 35 MOTION to Dismiss for Failure to State a Claim memorandum of law in support by Commissioner of Social Security. (Attachments: #1 Declaration) (Tankard, Frank) |
| Filing 34 Notice of MOTION to Dismiss for Failure to State a Claim by Commissioner of Social Security. (Tankard, Frank) |
ORDER terminating #35 Motion to Dismiss for Failure to State a Claim as mislabeled on ECF. This filing is not a motion. The motion is #34 . This filing #35 is a memorandum of law with an attached declaration and should have been labeled as such. DO NOT REFILE. c/m Ordered by Judge Brian M. Cogan on 3/18/2021. (Cogan, Brian)
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| Filing 33 MOTION for Judgment on the Pleadings by Hector Gonzalez. (Guzzi, Roseann) |
| Filing 32 NOTICE of Appearance by Frank D. Tankard on behalf of Commissioner of Social Security (aty to be noticed) (Tankard, Frank) |
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Filing 31
SCHEDULING ORDER re: Summary of Schedule. ( Ordered by Judge Brian M. Cogan on 1/20/2021 ) c/m to plaintiff; and electronic notification to Commissioner of SS and US Attorney's office. (Guzzi, Roseann)
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| Filing 30 Case transferred in from District of New York Southern; Case Number 1:20-cv-07338. Original file certified copy of transfer order and docket sheet received. |
| CASE TRANSFERRED OUT ELECTRONICALLY from the U.S.D.C. Southern District of New York to the United States District Court - District of Eastern District of New York.(yv) [Transferred from New York Southern on 1/19/2021.] |
| Filing 29 CERTIFICATE OF SERVICE of court orders served on Hector Gonzalez on 1-12-21. Service was made by Mail. Document filed by Commissioner of Social Security..(Ramirez-Fisher, Leslie) [Transferred from New York Southern on 1/19/2021.] |
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Filing 28
MEMORANDUM OPINION AND ORDER re: #13 MOTION to Change Venue to the Eastern District of New York. filed by Commissioner of Social Security. For the convenience of [the] parties and the interest of justice, this action should be transferred to the United States District Court for the Eastern District of New York, based on [P]laintiff's residence in that District. Fioravante v. Barnhart, No. 02-CV-8008 (RMB) (AJP), 2002 WL 31422887, at *1 (S.D.N.Y. Oct. 29, 2002) (collecting cases). Defendant shall promptly serve Plaintiff with a copy of this Memorandum Opinion and Order and shall file proof of such service on the docket. The Clerk of Court is directed to terminate ECF No. 13, to transfer this case to the Eastern District of New York, and to close this case in this District. SO ORDERED. (Signed by Judge Jesse M. Furman on 1/12/21) (yv) Transmission to Office of the Clerk of Court for processing. [Transferred from New York Southern on 1/19/2021.]
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Filing 27
ORDER. Earlier today, the Court received a letter, attached as Exhibit A, from Plaintiff Hector Gonzalez, which appears to consist of a letter Mr. Gonzalez received from the New York County Lawyers Association Pro Bono Social Security/SSI Project, dated October 5, 2020. Defendant shall promptly mail a copy of this Order to Plaintiff and file proof of such service on the docket. SO ORDERED. (Signed by Judge Jesse M. Furman on 1/12/21) (yv) [Transferred from New York Southern on 1/19/2021.]
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| Filing 26 DECLARATION of Hector Gonzalez. Document filed by Hector Gonzalez. (ok) [Transferred from New York Southern on 1/19/2021.] |
| Filing 25 MOTION IN OPPOSITION DEFENDANT MOTION TO DISMISS. Document filed by Hector Gonzalez. (ok) [Transferred from New York Southern on 1/19/2021.] |
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Filing 24
ORDER. Earlier today, the Court received a letter, attached as Exhibit A, from Plaintiff Hector Gonzalez, which appears to consist of a notice of overpayment Mr. Gonzalez received from the Social Security Administration, dated December 14, 2020. Mr. Gonzalez is reminded that all communications should be mailed to the Pro Se Intake Unit, 40 Centre Street, Room 105, New York, NY 10007. Defendant shall promptly mail a copy of this Order to Plaintiff and file proof of such service on the docket. SO ORDERED. (Signed by Judge Jesse M. Furman on 1/4/21) (yv) [Transferred from New York Southern on 1/19/2021.]
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| Filing 23 INTERNET CITATION NOTE: Material from decision with Internet citation re: #5 Order of Service - Social Security. (sjo) [Transferred from New York Southern on 1/19/2021.] |
| Filing 22 CERTIFICATE OF SERVICE of court order served on Hector Gonzalez on 12-30-20. Service was made by Mail. Document filed by Commissioner of Social Security..(Ramirez-Fisher, Leslie) [Transferred from New York Southern on 1/19/2021.] |
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Filing 21
ORDER granting #20 Letter Motion for Extension of Time. Application GRANTED. Defendant shall promptly serve Plaintiff with a copy of this order and shall file proof of such service on the docket. The Clerk of Court is directed to terminate ECF No. 20. SO ORDERED. (Signed by Judge Jesse M. Furman on 12/29/2020) (kv) [Transferred from New York Southern on 1/19/2021.]
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| Filing 20 LETTER MOTION for Extension of Time to file the certified administrative record or motion to dismiss addressed to Judge Jesse M. Furman from Leslie A. Ramirez-Fisher dated 12-29-20. Document filed by Commissioner of Social Security..(Ramirez-Fisher, Leslie) [Transferred from New York Southern on 1/19/2021.] |
| Mailed a copy of #18 Order, Set Motion and R&R Deadlines/Hearings to Hector Gonzalez at 2960 West 31st Street, Apt. 14-E, Brooklyn, NY 11224. (kh) [Transferred from New York Southern on 1/19/2021.] |
| Mailed a copy of #19 Order on Motion to Stay to Hector Gonzalez at 2960 West 31st Street, Apt. 14-E, Brooklyn, NY 11224. (kh) [Transferred from New York Southern on 1/19/2021.] |
| Transmission to Docket Assistant Clerk. Transmitted re: #19 Order on Motion to Stay, to the Docket Assistant Clerk for case processing. (yv) [Transferred from New York Southern on 1/19/2021.] |
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Filing 19
ORDER denying #17 Letter Motion to Stay. Application DENIED. Whether this matter is transferred to E.D.N.Y. or proceeds here, Defendant will have to file the CAR or a motion to dismiss, so there is no reason to delay. That said, in view of the pandemic, the deadline is extended to January 4, 2021. The Clerk of Court is directed to terminate ECF No. 17 and to mail this to Plaintiff. SO ORDERED. (Signed by Judge Jesse M. Furman on 12/10/20) (yv) [Transferred from New York Southern on 1/19/2021.]
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Filing 18
ORDER PARTIALLY WITHDRAWING REFERENCE TO MAGISTRATE JUDGE AND SCHEDULING ORDER, It is hereby ORDERED that the reference is WITHDRAWN with respect to the motion to transfer venue (and any related matters). If Plaintiff consents to transfer of the case to the Eastern District of New York, he should file a letter with the Court to that effect and the Court will enter an order transferring the case forthwith and there would be no delay. If Plaintiff opposes transfer, he shall file his opposition to the motion by January 11, 2021. Any reply shall be filed by January 18, 2021. If Plaintiff does not file an opposition to the motion by the January 11th deadline, the Court will transfer the case to the Eastern District without further notice to the parties. The Clerk of Court is directed to mail a copy of this Order to Plaintiff. SO ORDERED. Set Deadlines/Hearing as to #13 MOTION to Change Venue to the Eastern District of New York. :( Responses due by 1/11/2021, Replies due by 1/18/2021.) (Signed by Judge Jesse M. Furman on 12/10/20) (yv) Transmission to Docket Assistant Clerk for processing. [Transferred from New York Southern on 1/19/2021.]
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| Filing 17 LETTER MOTION to Stay filing of the certified administrative record, or if appropriate motion to dismiss the complaint addressed to Magistrate Judge Sarah L. Cave from Leslie A. Ramirez-Fisher dated 2-10-20. Document filed by Commissioner of Social Security..(Ramirez-Fisher, Leslie) [Transferred from New York Southern on 1/19/2021.] |
| Filing 16 CERTIFICATE OF SERVICE of notice of motion to transfer venue and supporting papers served on Hector Gonzalez on 12-10-20. Service was made by Mail. Document filed by Commissioner of Social Security..(Ramirez-Fisher, Leslie) [Transferred from New York Southern on 1/19/2021.] |
| Filing 15 MEMORANDUM OF LAW in Support re: #13 MOTION to Change Venue to the Eastern District of New York. . Document filed by Commissioner of Social Security..(Ramirez-Fisher, Leslie) [Transferred from New York Southern on 1/19/2021.] |
| Filing 14 DECLARATION of Leslie A. Ramirez-Fisher in Support re: #13 MOTION to Change Venue to the Eastern District of New York.. Document filed by Commissioner of Social Security. (Attachments: #1 Exhibit A).(Ramirez-Fisher, Leslie) [Transferred from New York Southern on 1/19/2021.] |
| Filing 13 MOTION to Change Venue to the Eastern District of New York. Document filed by Commissioner of Social Security..(Ramirez-Fisher, Leslie) [Transferred from New York Southern on 1/19/2021.] |
| Set/Reset Deadlines: Motions due by 1/4/2021. (yv) [Transferred from New York Southern on 1/19/2021.] |
| Filing 12 NOTICE OF MOTION. Document filed by Hector Gonzalez. (sc) [Transferred from New York Southern on 1/19/2021.] |
| Filing 11 LETTER addressed to Judge Jesse M. Furman from Leslie A. Ramirez-Fisher dated 10-20-20 re: nonconsent to the magistrate judge. Document filed by Commissioner of Social Security..(Ramirez-Fisher, Leslie) [Transferred from New York Southern on 1/19/2021.] |
| Filing 10 LETTER from H. Gonzalez, dated 10/10/20 re: I would rather United States District Court Judge Jesse M. Furman conduct this proceeding. Document filed by Hector Gonzalez.(sc) Modified on 10/19/2020 (kgo). [Transferred from New York Southern on 1/19/2021.] |
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Filing 9
ORDER: Pursuant to the Court's Order dated September 14, 2020, the parties were required to confer regarding whether they are willing to consent, under 28 U.S.C. 636(c), to conducting all proceedings before the assigned Magistrate Judge. See ECF No. 5. If both parties consent, they were required to email to FurmanNYSDChambers@nysd.uscourts.gov a fully executed Notice, Consent, and Reference of Civil Action to a Magistrate Judge Form within two weeks of the date on which Defendant enters an appearance. If either party does not consent, they were to file, by the same date, a joint letter advising the Court that the parties do not consent. To date, the parties have not satisfied their obligations. As a courtesy, the parties' deadline is hereby EXTENDED, nunc pro tune, to October 20, 2020. Defendant shall serve a copy of this order on Plaintiff within one business day of this Order. SO ORDERED. (Signed by Judge Jesse M. Furman on 10/13/2020) (ks) [Transferred from New York Southern on 1/19/2021.]
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| Filing 8 NOTICE OF APPEARANCE by Leslie A. Ramirez-Fisher on behalf of Commissioner of Social Security..(Ramirez-Fisher, Leslie) [Transferred from New York Southern on 1/19/2021.] |
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Filing 7
INFORMATION PACKAGE MAILED to Hector Gonzalez, at 2960 West 31st Street Apt. 14-E Brooklyn, NY 11224, on 9/15/2020 Re: #5 Order of Service - Social Security via REGULAR MAIL. The following document(s) were enclosed in the Service Package: a copy of the order of service or order to answer and other orders entered to date, the individual practices of the district judge and magistrate judge assigned to your case, Instructions for Litigants Who Do Not Have Attorneys, Notice Regarding Privacy and Public Access to Electronic Case Files, a flyer about the free legal assistance clinic located in the Thurgood Marshall Courthouse (only in non prisoner cases), a Motions guide, a notice that the Pro Se Manual has been discontinued, a Notice of Change of Address form to use if your contact information changes, a handout explaining matters handled by magistrate judges and consent form to complete if all parties agree to proceed for all purposes before the magistrate judge, a form for you to complete if you consent to receive filings electronically (only in nonprisoner cases), in social security cases only, a flyer about pro bono attorneys available through the New York County Lawyers' Association. (bwa) [Transferred from New York Southern on 1/19/2021.]
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Filing 6
ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Social Security. Referred to Magistrate Judge Sarah L Cave. SO ORDERED. (Signed by Judge Jesse M. Furman on 9/14/20) (yv) [Transferred from New York Southern on 1/19/2021.]
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Filing 5
ORDER OF SERVICE : The Clerk of Court shall notify the U.S. Attorney's Office for the Southern District of New York of the filing of this pro se case brought pursuant to 42 U.S.C. 405(g), for which the filing fee has been waived. In accordance with this District's Standing Order governing pro se challenges to denials of social security benefits (see In re: Mots. J. Pleadings Social Sec. Cases, 16-MC-0171), the following briefing schedule applies: Within 90 days of the date of this Order, the Commissioner must serve and file the Electronic Certified Administrative Record (e-CAR), which will constitute the Commissioner's answer, or otherwise move against the complaint. If the Commissioner wishes to file a motion for judgment on the pleadings, the Commissioner must do so within 60 days of the date on which the e-CAR was filed. The motion must contain a full recitation of the relevant facts and a full description of the underlying administrative proceeding. The plaintiff must file an answering brief within 60 days of the filing of the Commissioner's motion. The Commissioner may file a reply within 21 days thereafter. Memoranda in support of or in opposition to any dispositive motion may not exceed 25 pages in length; reply memoranda may not exceed ten pages in length. A party seeking to exceed these page limitations must apply to the Court for leave to do so, with copies to all counsel, no fewer than seven days before the date on which the memorandum is due. It is hereby ORDERED that the parties must discuss whether they are willing to consent, under 28 U.S.C. 636(c), to conducting all further proceedings before the assigned Magistrate Judge. If the parties consent to having the Magistrate Judge decide the case, the Magistrate Judge replaces the District Judge, thereby speeding up the resolution of the case (because only one judge instead of two will be involved in the case). Any appeal from a Magistrate Judges decision following consent is directly to the United States Court of Appeals for the Second Circuit in the same way that an appeal from a District Judges decision would be taken. By contrast, if the parties do not consent to having the Magistrate Judge decide the case, the Magistrate Judge will first issue a Report and Recommendation, and the District Judge will then consider any objections either party has to the Report and Recommendation before a final judgment is entered, at which point an appeal to the Second Circuit could be taken. The Clerk of the Court is directed to mail a copy of this Order to Plaintiff. SO ORDERED. ( Electronic Certified Administrative Record due by 12/14/2020.) (Signed by Judge Jesse M. Furman on 9/14/20) (yv) Transmission to Pro Se Assistants for processing. [Transferred from New York Southern on 1/19/2021.]
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Filing 4
ORDER GRANTING IFP APPLICATION: Leave to proceed in this Court without prepayment of fees is authorized. See 28 U.S.C. 1915. SO ORDERED. (Signed by Judge Jesse M. Furman on 9/14/20) (yv) [Transferred from New York Southern on 1/19/2021.]
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Filing 3
STANDING ORDER IN RE MOTIONS FOR JUDGMENT ON THE PLEADINGS IN SOCIAL SECURITY CASES (See 16-MISC-171 Standing Order filed April 28, 2016). ORDERED that in all Social Security cases hereafter filed under 42 U.S.C. 405(g) and 42 U.S.C. 1383(c)(3), the defendant shall within 90 days after service file the certified transcript of administrative proceedings, which shall constitute the defendants' answer, or otherwise move against the complaint... that unless otherwise ordered by the judge to whom the case is assigned, in cases where the plaintiff is represented by counsel, the plaintiff shall file a motion for judgment on the pleadings within 60 days of the date on which the defendant files the certified transcript of the administrative proceedings... that in cases where the plaintiff is appearing pro se, the defendant shall file its motion for judgment on the pleadings within 60 days of the date on which the certified transcript of administrative proceedings have been filed... (Signed by Judge Loretta A. Preska on 4/20/2016) (sac) Transmission to Docket Assistant Clerk for processing. [Transferred from New York Southern on 1/19/2021.]
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| Filing 2 COMPLAINT against Commissioner of Social Security. Document filed by Hector Gonzalez. (sac) [Transferred from New York Southern on 1/19/2021.] |
| Filing 1 REQUEST TO PROCEED IN FORMA PAUPERIS. Document filed by Hector Gonzalez. (sac) [Transferred from New York Southern on 1/19/2021.] |
| Magistrate Judge Sarah L. Cave is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: #https://nysd.uscourts.gov/sites/default/files/2018-06/AO-3.pdf. (sac) [Transferred from New York Southern on 1/19/2021.] |
| Case Designated ECF. (sac) [Transferred from New York Southern on 1/19/2021.] |
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