Foster v. Social Security Administration

Filing 15

RECOMMENDED DISPOSITION recommending that the District Court grant the Commissioner's Motion to Dismiss and dismiss the case without prejudice for lack of subject matter jurisdiction. Objections to R&R due by 6/15/2009. Signed by Magistrate Judge Beth Deere on 6/1/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS W E S T E R N DIVISION G U R A L FOSTER V. CASE NO.: 4:09CV00073 JLH/BD DEFENDANT PLAINTIFF

S O C IA L SECURITY ADMINISTRATION

R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections T h is recommended disposition has been submitted to Chief United States District J u d g e J. Leon Holmes. Any party may serve and file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a s is for the objection. If the objection is to a factual finding, specifically identify that f in d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n eleven (11) days from the date you receive the Recommended Disposition. A copy o f objections must be served on the opposing party. Failure to file timely objections may re s u lt in waiver of the right to appeal questions of fact. The District Judge, even in the a b s e n c e of objections, may reject these proposed findings and recommendations in whole o r in part.

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Mail objections to: C le rk , United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 II. B ackground P la in tif f Gural Foster filed an application for Disability Insurance Benefits (" D IB " ) under Title II of the Social Security Act (the "Act") and Supplemental Security in c o m e ("SSI") under Title XVI of the Act with the Social Security Administration on A u g u s t 14, 2007. (#13 at p. 9) The Commissioner denied his applications initially and u p o n reconsideration. (#13 at p. 9) Plaintiff requested a hearing before an Administrative L a w Judge ("ALJ") on October 25, 2007. (#13 at p. 9) An ALJ held a hearing on Mr. F o ste r's application on December 10, 2008. (#13 at p. 9) Mr. Foster filed a complaint (#2) in this Court against the Commissioner of the S o c ia l Security Administration (the "Commissioner") on February 3, 2009, requesting the C o u rt determine whether he is entitled to DIB and SSI. Plaintiff subsequently filed an a m e n d e d complaint (#6) alleging the same facts as in his complaint but attaching d o c u m e n ts he had received from the Commissioner including a hearing notice dated N o v e m b e r 19, 2008. In response to the complaint and amended complaint, the C o m m is s io n e r has filed a motion to dismiss for lack of subject matter jurisdiction and m e m o ra n d u m in support (#13). Plaintiff has filed a one page response to the motion (# 1 4 ) containing allegations similar to those in his complaint. 2

III.

D is c u s s io n U n d e r 42 U.S.C. § 405(g), "[a]ny individual, after any final decision of the

C o m m is s io n e r of Social Security made after a hearing to which he was a party . . . may o b ta in a [judicial] review of such decision by a civil action." 42 U.S.C. § 405(g) (e m p h a s is added). Further, 42 U.S.C.A. § 405(h) provides "[n]o findings of fact or d e c is io n of the Commissioner of Social Security shall be reviewed by any person, trib u n a l, or governmental agency except as herein provided." 42 U.S.C.A. § 405(h) In Weinberger v. Salfi, 422 U.S. 749, 766, 95 S.Ct. 2457, (1975), the United States S u p re m e Court considered a case dealing with § 405(h) and § 405(g) of the Social S e c u rity Act and concluded that the term "final decision" in § 405(g) is a "statutorily s p e c if ie d jurisdictional prerequisite." Accordingly, whether the Court has subject matter ju ris d ic tio n over this case depends on whether the actions taken by the Commissioner th u s far constitute a "final decision" under 42 U.S.C. § 405(g). A s an attachment to his motion to dismiss, the Commissioner provided the a f f id a v it of Patrick J. Herbst, the Chief of Court Case Preparation and Review Branch 4 o f the Office of Appellate Operations, Office of Disability Adjudication and Review for th e Social Security Administration. (#13 at p. 8) In his affidavit, Mr. Herbst states that as o f May 4, 2009, the ALJ who conducted the hearing in Mr. Foster's case had not issued a n opinion. (#13 at pp. 9-10) Mr. Herbst further states that his office administers a n a tio n w id e hearing and appeals program, and under the regulations of the Social Security

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Administration, a decision does not become a "final decision" within the meaning of 42 U .S .C . § 405(g) "until the Appeals Council denies a timely request for review of a h e a rin g decision." See 20 C.F.R. § 416.1400(a) (the administrative review process of the S o c ia l Security Administration includes initial determination, reconsideration, ALJ h e a rin g , and review by Appeals Council); Anderson v. Sullivan, 959 F.2d 690, 692 (8th C ir.1 9 9 2 ) ("[T]he Social Security Act precludes general federal subject matter ju ris d ic tio n until administrative remedies have been exhausted."). The ALJ has not is su e d a decision in Mr. Foster's case, and the Commissioner has not rendered a "final d e c is io n ." IV. C o n c lu s io n Accordingly, the Court recommends that the District Court grant the C o m m is s io n e r's Motion to Dismiss and dismiss the case without prejudice for lack of s u b je c t matter jurisdiction. DATED this 1st day of June, 2009.

UNITED STATES MAGISTRATE JUDGE

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