Wood v. Colvin

Filing 9

ORDER adopting 6 Report and Recommendations. Therefore, the Plaintiff's amended complaint is dismissed and this civil action is closed. Signed by Judge Dudley H. Bowen on 2/21/17. (cmr)

ORIGINAL
U.S. DISTRICT COURT

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

DUBLIN DIVISION

A U G U S TA 01V.

21 PH 12= 06

So4ll4^GA^^

KATHY ANN WOOD,

Plaintiff,
CV 316-096

V.

NANCY A. BERRYHILL, Acting
Commissioner of Social Security

Administration,^ and GBIS Inc.,
Defendants.

ORDER

After a careful, de novo review of the file, the Court adopts the Magistrate Judge's

Report and Recommendation (R&R), to which objections have been filed. (Doc. no. 8.)

Upon initial review of Plaintiffs amended complaint, the Magistrate Judge recommended
dismissal because Plaintiff indicated her appeal of the Administrative Law Judge's adverse

decision was pending before the Appeals Council. (See doc. no. 6, pp. 2-3.) Although

Plaintiff maintains she filed an appeal with the Appeals Council, in her objections, Plaintiff
attaches a letter from the Social Security Administration (SSA) which states Plaintiff did not

'The Court takes judicial notice that on Januaiy 20, 2017, Nancy A. Berryhill became the
Acting Commissioner of the Social Security Administration. Pursuant to Fed. R. Civ. P. 25(d),
the Court DIRECTS the Clerk of Court to substitute Nancy A. Berryhill as Defendant in this
case.

file an appeal with the Appeals Council. (Doc. no. 8, p. 4.) Regardless of which scenario is
true, the Magistrate Judge is correct that the Court has no jurisdiction.
The jurisdictional basis for judicial review in Social Security matters is 42 U.S.C. §

405(g), which provides:
Any individual, after any final decision of the Commissioner of
Social Security 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 notice of such decision or within
such further time as the Commissioner of Social Security may
allow.

Thus, § 405(g) sets forth three prerequisites for judicial review:(1) a final decision made by
the Commissioner after a hearing,(2) the commencement of a civil action within sixty days
of the mailing of notice of the Commissioner's final decision, and (3) the filing of the action
in an appropriate district court. Weinberger v. Salfi. 422 U.S. 749, 763-64 (1975).

A plaintiff obtains the Commissioner's "final decision" after completing the four

steps of the administrative review process: (1) initial determination; (2) reconsideration
determination;(3) hearing before an ALJ; and(4) Appeals Council review. If a plaintiff fails

to request review from the Appeals Council, "there is no final decision and, as a result, no

judicial review . . . ." Sims v. Apfel. 530 U.S. 103, 106-07 (2000) (citing 20 CFR §
404.900(b)). "In administrative-law parlance, such a claimant may not obtain judicial review
because he has failed to exhaust administrative remedies." Id

Here, if Plaintiff did not request review from the Appeals Council, this Court does not

have jurisdiction under § 405(g) because Plaintiff has not received a final decision from the

SSA.

20 C.F.R. § 404.900 (listing administrative steps); Sims. 530 U.S. at 106-107;

Wright V. Colvin. No. 3:12-CV-1007-J-32TEM, 2013 WL 5567409, at *3(M.D. Fla. Oct. 9,

2013)("A claimant obtains the Commissioner's "final decision" after completing the four

steps of the administrative review process."). If on the other hand, Plaintiff filed an appeal
with the Appeals Council and that appeal is presently pending. Plaintiff has also not yet
received a final decision from the Commissioner. See Seav v. Barnhart. No. 1:06-CV-88

(WLS), 2007 WL 397126, at *1 (M.D. Ga. Feb. 1, 2007)(finding no jurisdiction to review
Commissioner's decision where appeal to Appeals Council was pending). In either instance.
Plaintiff has not received a final decision, and this Court lacks jurisdiction under § 405(g).

Accordingly, the Court ADOPTS the Report and Recommendation of the

Magistrate Judge as its opinion, DISMISSES Plaintiffs amended complaint, and CLOSES
this civil action.

SO ORDERED this^^^

o^ebruary,2017, at Augusta, Georgia.

UNITED STATESTDISTRICT JUDGE