Phernetton v. Commissioner of Social Security

Filing 30

OPINION AND ORDER: Court GRANTS 22 Motion to Dismiss for Failure to State a Claim on Which Relief Can Be Granted. Phernetton's complaint is DISMISSED. Signed by Magistrate Judge Andrew P Rodovich on 11/10/2011. cc: Phernetton (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ERIC J. PHERNETTON,

)
)
Plaintiff
)
)
v.
) CIVIL NO. 2:11 cv 129
)
MICHAEL J. ASTRUE, Commissioner, )
Social Security Administration, )
)
Defendant
)
OPINION AND ORDER
This matter is before the court on the Motion to Dismiss for
Failure to State a Claim on Which Relief Can Be Granted [DE 22]
filed by the defendant, Michael J. Astrue, Commissioner of Social
Security, on September 26, 2011, and the Motion to Show Cause [DE
28] filed by the plaintiff, Eric J. Phernetton, on October 7,
2011.

For the following reasons, the Social Security Adminis-

tration’s motion [DE 22] is GRANTED.

Because it is not clear

what relief Phernetton is seeking in his Motion to Show Cause and
the motion appears to set forth the merits of Phernetton’s claim
and to ask the court to allow his claims to proceed to trial, the
court construes his Motion to Show Cause as part of his response
to the Social Security Administration’s Motion to Dismiss.
Background
The plaintiff, Eric J. Phernetton, applied for and was
denied Disability Insurance Benefits, Supplemental Security

Income, and Child’s Insurance Benefits by the Social Security
Administration.

After receiving notice that his claim was

denied, Phernetton requested a hearing before an Administrative
Law Judge.

The ALJ conducted a hearing and issued a partially

favorable decision on October 23, 2009.

Phernetton never re-

quested a review of the ALJ’s decision, and on April 12, 2011, he
filed a pro se complaint with this court.

In his complaint,

Phernetton alleges that the Social Security Administration was
negligent in assisting him with the proper paperwork and interfered with his right to relocate to Georgia causing him emotional
distress.
The Social Security Administration filed a motion to dismiss
on September 26, 2011, arguing that Phernetton failed to exhaust
his administrative remedies because he did not appeal the ALJ’s
decision to the Appeals Council as required by the Social Security Act.

In response, Phernetton submitted two letters and a

document entitled "Motion to Show Cause".

In the "Motion to Show

Cause", Phernetton explains that he wants back pay, to be allowed
to return to Georgia, and damages for emotional distress.
Discussion
Federal Rule of Civil Procedure 12(b)(6) allows for a complaint to be dismissed if it fails to "state a claim upon which
relief can be granted."

Allegations other than those of fraud

2

and mistake are governed by the pleading standard outlined in
Federal Rule of Civil Procedure 8(a)(2), which requires a "short
and plain statement" to show that a pleader is entitled to
relief.

The Supreme Court clarified its interpretation of the

Rule 8(a)(2) pleading standard in a decision issued in May 2009.
While Rule 8(a)(2) does not require the pleading of detailed
allegations, it nevertheless demands something more "than an unadorned, the-defendant-unlawfully-harmed-me accusation."

Ash-

croft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d
868 (2009).

In order to survive a Rule 12(b)(6) motion, a

complaint "must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on its
face.'"

Iqbal, 129 S.Ct. at 1949 (quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007)); Joren v. Napolitano, 633 F.3d 1144, 1146 (7th Cir.
2011).

This pleading standard applies to all civil matters.

Iqbal, 129 S.Ct. at 1953.
The decision in Iqbal discussed two principles that underscored the Rule 8(a)(2) pleading standard announced by Twombly.

See Twombly, 550 U.S. at 555, 127 S.Ct. at 1965 (discussing Rule
8(a)(2)’s requirement that factual allegations in a complaint
must "raise a right to relief above the speculative level").
First, a court must accept as true only factual allegations pled

3

in a complaint: "[t]hreadbare recitals of the elements of a cause
of action" that amount to "legal conclusions" are insufficient.

Iqbal, 129 S.Ct. at 1949.

Next, only complaints that state

"plausible" claims for relief will survive a motion to dismiss:
if the pleaded facts do not permit the inference of more than a
"mere possibility of misconduct," then the complaint has not met
the pleading standard outlined in Rule 8(a)(2).

Iqbal, 129 S.Ct.

See also Brown v. JP Morgan Chase Bank, 2009 WL

at 1949-50.

1761101, *1 (7th Cir. June 23, 2009)(defining "facially plausible" claim as a set of facts that allows for a reasonable inference of liability).
The Supreme Court has suggested a two-step process for a
court to follow when considering a motion to dismiss.

First, any

"well-pleaded factual allegations" should be assumed to be true
by the court.

Next, these allegations can be reviewed to deter-

mine if they "plausibly" give rise to a claim that would entitle
the complainant to relief.

Iqbal, 129 S.Ct. at 1949-50; Bonte v.

U.S. Bank, N.A., 624 F.3d 461, 465 (7th Cir. 2010).

Reasonable

inferences from well-pled facts must be construed in favor of the
plaintiff.

Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995);

Maxie v. Wal-Mart Store, 2009 WL 1766686, *2 (N.D. Ind. June 19,
2009)(same); Banks v. Montgomery, 2009 WL 1657465, *1 (N.D. Ind.
June 11, 2009)(same).

4

"As a pro se litigant, [a] [p]laintiff is permitted a more
lenient standard with respect to his pleadings than that imposed
on a practicing attorney."

Cintron v. St. Gobain Abbrassives,

Inc., 2004 WL 3142556, *1 (S.D. Ind. Nov. 18, 2004).

Although

the court recognizes that pro se litigants face special challenges that litigants represented by counsel do not, pro se
litigants are not excused from following procedural rules simply
because the "rules of procedure are based on the assumption that
litigation is normally conducted by lawyers."

Lee v. Wal-Mart

Stores, 1994 WL 899240, *1 (N.D. Ind. Apr. 12, 1994).
[The court] ha[s] never suggested that procedural rules in ordinary civil litigation
should be interpreted so as to excuse mistakes by those who proceed without counsel.
As we have noted before, "in the long run,
experience teaches that strict adherence to
the procedural requirements specified by the
legislature is the best guarantee of evenhanded administration of the law."

Lee, 1994 WL 899240 at *1 (quoting Mohasco
Corp. v. Silver, 447 U.S. 807, 826, 100 S.Ct.
2486, 2497, 65 L.Ed.2d 532 (1980))
Phernetton filed a pro se complaint explaining that the
Social Security Administration did not properly assist him in
filing the correct paperwork and interfered with his right to
relocate, causing emotional distress.

Phernetton requests back

pay and compensation for his emotional distress.

It is not clear

from Phernetton’s complaint whether he is requesting review of

5

the ALJ’s decision so he may receive Social Security benefits or
stating an independent claim for negligence.
The Social Security Administration provides benefits to
those individuals who can establish a "disability" under the
terms of the Social Security Act.

42 U.S.C. §423(a)(1)(E).

A

successful claimant must show that he is unable "to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months." 42 U.S.C.
§423(d)(1)(A).
The Social Security Act is the exclusive basis for judicial
review in cases arising under the Act.

42 U.S.C. §405(g).

To

obtain judicial review under the Act, a claimant first must
obtain a final decision from the Commissioner of Social Security.
42 U.S.C. §405(g).

The term "final decision" is not defined by

the Act, however the regulations provide that the claimant must
complete the four step administrative appeals process before
seeking judicial review.

20 C.F.R. §404.900.

See Weinberger v.

Salfi, 422 U.S. 749, 767, 95 S.Ct. 2457, 2468, 45 L.Ed.2d 522
(1975).
First, the claimant must file an application for benefits
with the Social Security Administration.

6

20 C.F.R. §§404.902,

416.1402.

The Social Security Administration will consider the

application and issue an initial determination of benefits.
C.F.R. §404.902.

If dissatisfied with this determination, the

claimant may ask for reconsideration.
416.1407.

20

20 C.F.R. §§404.907,

If the claimant receives a second unfavorable deci-

sion, he may request a hearing before an ALJ.
§§404.900, 404.914, 404.916.
issue a written decision.

20 C.F.R.

The ALJ must conduct a hearing and

20 C.F.R. §404.916.

The claimant may

appeal the ALJ’s decision to the Appeals Council if he is dissatisfied.

20 C.F.R. §§404.967, 416.1467.

The Appeals Council

either will deny the request for review and allow the ALJ’s
decision to stand as the final decision of the Commissioner or
will grant the request and issue its own decision.
§§404.981, 416.1481.

20 C.F.R.

The claimant has 60 days from receiving

notice of the Appeals Council’s action to file an appeal in the
appropriate federal district court.
404.981.

20 C.F.R. §§404.900(a),

The claimant obtains a judicially reviewable decision

only if he completes the administrative appeals process and
receives a decision by the Appeals Council or a notice from the
Appeals Council denying his request for review of the ALJ’s
decision.

20 C.F.R. §§404.981, 416.1482, 422.210.

It is undisputed that Phernetton failed to appeal the ALJ’s
decision to the Appeals Council.

By failing to seek review,

7

Phernetton did not exhaust his administrative remedies and cannot
seek judicial review.

Phernetton has not provided any justifica-

tion to show why he should be permitted to bypass the administrative appeals process.

Absent special circumstances, the court

must yield to the administrative agency to complete review.

To

the extent that Phernetton requests benefits under the Social
Security Act, this court is without authority to review the ALJ’s
decision and the Social Security’s Motion to Dismiss must be
GRANTED.
However, Phernetton’s complaint requests relief for actions
unrelated to the denial of benefits itself.

Phernetton complains

that the Social Security Administration was negligent in assisting him with his claim, interfered with his right to relocate to
Georgia, and caused him emotional distress.
The district court has exclusive jurisdiction over civil
actions against the United States where monetary damages are
sought for injury to a person caused by negligence or a wrongful
act or omission by any employee of the government.
§§1346(b), 2679(b)(1).

28 U.S.C.

This authority is derived from the Fed-

eral Torts Claims Act, and it encompasses claims against officers
and employees of any federal agency who were acting within the
scope of their employment at the time of the alleged wrong.
U.S.C. §§2672, 2679.

28

The Federal Tort Claims Act abrogates the

8

federal government's immunity from suit "under circumstances
where the United States, if a private person would be liable to
the claimant in accordance with the law of the place where the
act or omission occurred."

28 U.S.C. §1346(b)(1).

The court

must look to state law to determine the liability of federal
agencies for the torts committed by its employees.

See Spurgin-

Dienst v. United States, 359 F.3d 451, 455 n.2 (7th Cir. 2004).
As a prerequisite to filing a civil tort action against the
United States, the Federal Tort Claims Act provides that the
injured person must file a brief notice with the agency, describing the time, place, cause, nature of the injury, and compensation demanded.

The injured person cannot pursue a tort claim

until the agency has denied the demand and issued its decision in
writing.

If the agency does not respond to a demand within six

months, its silence is treated as a denial of the demand.
U.S.C. §2675(a).

28

The district court must dismiss a claim under

Rule 12(b)(1) for lack of subject matter jurisdiction if the
injured party has not followed this procedure and has not presented notice of the claim to the appropriate agency.

See McNeil

v. United States, 508 U.S. 106, 113 S.Ct. 1980, 124 L.Ed.2d 21
(1993); Goodman v. United States, 298 F.3d 1048, 1053, 1055 (9th
Cir. 2002).

9

Phernetton did not plead, nor does the record reflect, that
he ever provided notice of his tort claims to the Social Security
Administration. Although Phernetton is entitled to a liberal
construction of his complaint, his pro se status does not relieve
him of his responsibility to follow the rules.

Rule 8(a) demands

that the pleadings include a "short plain statement of the
grounds for the court’s jurisdiction."

Failure to provide notice

of the potential tort claim deprives the court of jurisdiction
and prevents the appropriate jurisdictional allegations from
being included in the complaint.

Because Phernetton did not

provide notice of his tort claim to the Social Security Administration, this court is without jurisdiction and Phernetton’s
complaint must be DISMISSED.
Moreover, Phernetton’s complaint states in its entirety "Am
disabled, filing suit for damages, and emotional stress as will
be stated in my motion."

The complaint does not set forth any

facts giving rise to his complaint or put the Social Security
Administration on notice of the basis for his claims.

A com-

plaint must contain sufficient factual matter to show that the
claims are plausible, and Phernetton’s complaint falls far short
of satisfying this standard.

See Iqbal, 129 S.Ct. at 1949 (ex-

plaining that the complaint must plead sufficient factual matter
to show that the claims are plausible).

10

Phernetton’s complaint

contains nothing more than "an un-adorned, the-defendant-unlawfully-harmed-me accusation."

See Iqbal, 129 S.Ct. at 1949.

_______________
Based on the foregoing, the Motion to Dismiss for Failure to
State a Claim on Which Relief Can Be Granted [DE 22] filed by the
defendant, Michael J. Astrue, Commissioner of Social Security, on
September 26, 2011, is GRANTED, and Phernetton’s complaint is
DISMISSED.
ENTERED this 10th day of November, 2011

s/ ANDREW P. RODOVICH
United States Magistrate Judge

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