Jones v. Commissioner of Social Security

Filing 4

ORDER to Plaintiff to SHOW CAUSE Why the Action Should Not Be Dismissed for Plaintiff's Failure to Exhaust Administrative Remedies, signed by Magistrate Judge Jennifer L. Thurston on 12/17/2014. Show Cause Response due within 21 days. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,
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v.
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COMMISSIONER OF SOCIAL SECURITY, )
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Defendant.
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ROY LEE JONES,

Case No.: 1:14-cv-01991 - JLT
ORDER TO PLAINTIFF TO SHOW CAUSE WHY
THE ACTION SHOULD NOT BE DISMISSED
FOR PLAINTIFF’S FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES

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Plaintiff Roy Lee Jones is seeking judicial review of a determination of the Social Security

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Administration. (Doc. 1.) Plaintiff alleged the ALJ issued a decision denying his claim for benefits on

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September 22, 2014. (Id. at 2.) However, it is not clear that Plaintiff exhausted his administrative

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remedies, as required pursuant to 42 U.S.C. § 405(g).

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The Court’s jurisdiction to review the denial of Social Security benefits is granted pursuant to
42 U.S.C. § 405(g), which provides in relevant part:
Any individual, after any final decision of the Commissioner made after a hearing to
which he was a party, irrespective of the amount in controversy, may obtain a review of
such decision by a civil action commenced within sixty days after the mailing to him
of such decision or within such further time as the Commissioner may allow. Such
action shall be brought in the district court of the United States for the judicial district
in which the plaintiff resides, or has his principal place of business . . . The court shall
have power to enter, upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing.
Id. (emphasis added). Except as provided by statute, “[n]o findings of fact or decision of the
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Commissioner shall be reviewed by any person, tribunal, or governmental agency.” 42 U.S.C. § 405(h).
The meaning of the term “final decision” in Section 405(g) was left to the Commissioner of

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Social Security “to flesh out by regulation.” Weinberger v. Salfi, 422 U.S. 749, 766 (1975). Pursuant to

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the Regulations, a claimant obtains the Commissioner’s “final decision” only after completing the

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administrative review process, which includes: (1) an initial determination, (2) reconsideration, (3) a

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hearing before an administrative law judge, and (4) review by the Appeals Council. 20 C.F.R. §§

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404.900(a). As a result, the Supreme Court determined judicial review of the denial of benefits is only

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available to a claimant who has exhausted available administrative remedies, explaining:

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SSA regulations provide that, if the Appeals Council grants review of a claim, then the
decision that the Council issues is the Commissioner’s final decision. But if … the
Council denies the request for review, the ALJ’s opinion becomes the final decision. See
20 CFR §§ 404.900(a)(4)-(5), 404.955, 404.981, 422.210(a) (1999). If a claimant fails
to request review from the Council, there is no final decision and, as a result, no
judicial review in most cases. See § 404.900(b); Bowen v. City of New York, 476 U.S.
467, 482-483, 90 L. Ed. 2d 462, 106 S. Ct. 2022 (1986). In administrative-law parlance,
such a claimant may not obtain judicial review because he has failed to exhaust
administrative remedies. See Salfi, 422 U.S. at 765-766.

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Sims v. Apfel, 530 U.S. 103, 107 (2000) (emphasis added). In other words, “[a] final decision has two

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elements: (1) presentment of the claim to the Commissioner, and (2) complete exhaustion of

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administrative remedies.” Kildare v. Saenz, 325 F.3d 1078, 1082 (9th Cir. 2003) (citing Johnson v.

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Shalala, 2 F.3d 918, 921 (9th Cir. 1993)).

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Here, there are no facts alleged supporting a finding that Plaintiff exhausted his administrative

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remedies by requesting review by the Appeals Council. Further, there are not facts supporting a

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determination that the exhaustion requirement has been waived by the Commissioner or should be

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waived by the Court. See Kildare, 325 F.3d at 1082.

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Accordingly, Plaintiff is ORDERED to show cause within twenty-one days of the date of

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service why the action should not be dismissed for his failure to exhaust administrative remedies.

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IT IS SO ORDERED.
Dated:

December 17, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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