Dority v. Social Security Administration Commissioner
MEMORANDUM OPINION AND ORDER granting 10 Motion to Dismiss/Lack of Jurisdiction filed by Social Security Administration Commissioner further denying 15 Motion for Hearing filed by Johnthan R. Dority. Signed by Honorable Mark E. Ford on August 3, 2015. (hnc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
JOHNTHAN R. DORITY
CIVIL NO: 2:15-2083-cv-MEF
CAROLYN COLVIN, Commissioner
Social Security Administration
MEMORANDUM OPINION AND ORDER ON THE DEFENDANTS’ MOTION TO
DISMISS AND THE PLAINTIFF’S MOTION FOR HEARING
Plaintiff, Johnthan Dority, brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial
review of a decision of the Commissioner of Social Security (Commissioner). On June 26, 2015,
the Defendants filed a motion to dismiss the Plaintiff’s complaint pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure. ECF Nos. 10, 11. The Plaintiff filed a response and a motion
for hearing. ECF Nos. 12, 13, 14, 15.
Plaintiff filed an application for disability insurance benefits (DIB) and supplemental
security income (SSI) on June 28, 2010. Following an administrative hearing, an Administrative
Law Judge (“ALJ”) denied Plaintiff’s applications for benefits in a decision dated July 22, 2011.
In a successful appeal to the Appeals Council (“AC”), the AC remanded Plaintiff’s case to the ALJ
for further consideration on February 16, 2012. On June 7, 2013, following a supplemental
hearing, the ALJ issued a second unfavorable decision. Plaintiff requested Appeals Council review
on July 18, 2013. On April 28, 2015, the Plaintiff filed his complaint with the court. EFC No. 1.
Federal courts have jurisdiction over social security claims under 42 U.S.C. § 405(g),
which permits judicial review of a final decision of the Social Security Commissioner. The
Commissioner’s decision is not final unless the claimant has presented a claim for benefits to the
commissioner and has exhausted the prescribed administrative remedies before seeking judicial
review. See Sipp v. Astrue, 641 F.3d 975, 979-980 (8th Cir. 2011) (citing Schoolcraft v. Sullivan,
971 F.2d 81, 84–85 (8th Cir.1992)). The presentation requirement must be met in every case, and
a Plaintiff’s failure to present a claim to the commissioner divests federal courts of jurisdiction.
Mathews v. Eldridge, 424 U.S. 319, 328, (1976). “The administrative exhaustion requirement can
however be excused, either by consent of the Commissioner or in exceptional circumstances by
the court,” neither of which are implicated in this case. See Sipp, 641 F.3d at 980 (citing
Schoolcraft, 971 F.2d at 85 & n. 7).
The Defendants filed a motion to dismiss for failure to exhaust administrative remedies.
ECF Nos. 10, 11. In support of their motion, they attached the declaration of Roxie Rasey Nicoll,
Chief of Court Case Preparation and Review for the Office of Appellate Operations. ECF No. 101. Ms. Nicoll recites the procedural history of the case, as laid out above, and states that the July
18, 2013; request for review is still pending before the AC. ECF No. 10-1. In response, the
Plaintiff alleges that the Administration repeatedly told his attorney that his case had been
“specially dismissed.” ECF No. 12. Further, he attached a list of his pending cases before the AC,
noting that this case does not appear on that list, and requests that this court schedule the matter
for hearing. ECF Nos. 12-1, 15.
In reply, the Defendants presented a second declaration by Ms. Nicoll providing an
explanation of the “special dismissal” process and further explaining the procedural background
of this case. ECF No. 14-1. She explained as follows:
(d) A special dismissal is an administrative tool utilized by the Office of Disability
Adjudication and Review to correct an error in bringing a case into the case control
system, called the Appeals Review Processing System (“ARPS”). This case was
originally brought in an erroneous ARPS category due to an administrative error in
identifying the nature of the request for hearing after the Appeals Council remanded
the case to the Administrative Law Judge for further proceedings. A special
dismissal was utilized to appropriately correct the initial error in ARPS upon
remand from the Appeals Council in February 2012, when the hearing was
inaccurately entered as a Court Remand (Exhibit 5).
(e) Subsequently, the appropriate entry was made in ARPS, the Administrative Law
Judge held a supplement oral hearing on May 29, 2013 and issued another
unfavorable decision on June 7, 2013 (Exhibit 6).
(f) The claimant requested review of that June 7, 2013 hearing decision on July 18,
2013 (Exhibit 7). This request was incorrectly dismissed in ARPS due to the earlier
referenced incorrect entry (Exhibit 8). However, there has been no substantive
dismissal, or other adjudicative action taken by the Appeals Council, and the
request is still appropriately before the Appeals Council.
ECF NO. 14-1.
After reviewing the arguments and evidence presented in the Defendants’ motion and the
Plaintiff’s response, the undersigned finds that there is no need for a hearing in this matter. It is
clear from the evidence that the Plaintiff’s request for review remains pending before the AC. The
Plaintiff has neither received nor alleged to have received a Notice of Appeals Council Action.
Accordingly, the Plaintiff has not exhausted his administrative remedies, and this court does not
have jurisdiction over the matter.
Therefore, the case will be dismissed without prejudice. The Plaintiff is free to refile his
complaint after the AC enters its Notice of Appeals Council Action.
For the reasons stated above, the undersigned hereby GRANTS the Defendants’ Motion to
Dismiss, and directs the Clerk to dismiss the case without prejudice.
The Plaintiff’s Motion for Hearing is also DENIED.
DATED this 3rd day of August, 2015.
/s/ Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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