Smith v. Social Security Administration, Commissioner of

Filing 18

MEMORANDUM AND ORDER: Defendant's Motion To Dismiss Pursuant To Fed. R. Civ. P. 12(b)(1) 17 filed June 27, 2022 is SUSTAINED. granting Motion to Dismiss for Lack of Jurisdiction. Signed by District Judge Kathryn H. Vratil on August 1, 2022. Mailed to pro se party Nathan Smith by regular mail. (mls)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
NATHAN SMITH,

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Plaintiff,
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v.
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KILOLO KIJAKAZI,
)
Acting Commissioner of Social Security
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Defendant.
)
____________________________________________)

CIVIL ACTION
No. 22-4017-KHV

MEMORANDUM AND ORDER
On March 21, 2022, pro se plaintiff Nathan Smith filed a complaint against Kilolo Kijakazi,
Acting Commissioner of the Social Security Administration, appealing the denial of his disability
benefits. Complaint (Doc. #1) at 1. This matter is before the Court on Defendant’s Motion To
Dismiss Pursuant To Fed. R. Civ. P. 12(b)(1) (Doc. #17) filed June 27, 2022. For reasons stated
below, the Court sustains defendant’s motion.
Legal Standard
Defendant seeks to dismiss plaintiff’s complaint for lack of subject matter jurisdiction.
Federal courts are courts of limited jurisdiction and may only exercise jurisdiction when
specifically authorized to do so. See Castaneda v. I.N.S., 23 F.3d 1576, 1580 (10th Cir. 1994).
The party who seeks to invoke federal jurisdiction bears the burden of establishing that such
jurisdiction is proper, and the law imposes a presumption against jurisdiction. Marcus v. Kan.
Dep’t of Revenue, 170 F.3d 1305, 1309 (10th Cir. 1999); see also Basso v. Utah Power & Light
Co., 495 F.2d 906, 909 (10th Cir. 1974).
A party may go beyond allegations contained in the complaint and challenge the facts upon
which subject matter jurisdiction depends. Davis ex rel. Davis v. United States, 343 F.3d 1282,

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1295 (10th Cir. 2003). A court has wide discretion to allow affidavits and other documents to
resolve disputed jurisdictional facts under Rule 12(b)(1). Id. at 1296. In such instances, a court’s
reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion for
summary judgment. Id.
The Court construes plaintiff’s pro se complaint liberally and holds it to a less stringent
standard than formal pleadings drafted by lawyers. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991). The Court does not, however, assume the role of advocate for a pro se litigant. Id. A
pro se litigant must “follow the same rules of procedure that govern all other litigants.” Nielsen
v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
Factual Background
Plaintiff brings suit appealing the denial of disability benefits. Plaintiff’s complaint alleges
that upon his release from prison on March 9, 2017, he “was escorted by two federal probation
officers to the Brunswick, Georgia Social Security Admin. and applied for disability benefits.”
Complaint (Doc. #1) at 1. Plaintiff asserts that the Commissioner denied his request and that he
seeks to appeal that denial. Complaint (Doc. #1) at 1.
Analysis
Before addressing the jurisdictional question, the Court notes that plaintiff has not
responded to the Commissioner’s motion and the time to do so has expired.1 District of Kansas
Rule 7.4 states that absent a showing of excusable neglect, a party who fails to file a responsive
brief within the time specified in D. Kan. Rule 6.1(d) “waives the right to later file such brief.” If

The Commissioner filed her motion on June 27, 2022. Plaintiff’s response was due
July 18, 2022. See D. Kan. R. 6.1(d)(2) (response to dispositive motion due within 21 days). As
of August 1, 2022, plaintiff has not filed a response or filed a motion requesting an extension of
time.
1

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a party does not file a responsive brief within 21 days, “the court will consider and decide the
motion as an uncontested motion. Ordinarily, the Court will grant the motion without further
notice.” D. Kan. Rule 7.4(b). A pro se litigant is not excused from complying with the rules of
the Court and is subject to the consequences of non-compliance. Ogden v. San Juan Cnty., 32 F.3d
452, 455 (10th Cir. 1994) (citing Nielsen, 17 F.3d at 1277). However, the Court will also decide
the motion to dismiss on its merits.
Defendant argues that the Court lacks subject matter jurisdiction because the Social
Security Commissioner has not issued the “final decision” required by Section 205(g) of the Social
Security Act. 42 U.S.C. § 405(g); see Defendant’s Motion To Dismiss Pursuant To Fed. R. Civ.
P. 12(b)(1) (Doc. #17) at 1. The Commissioner attaches numerous documents in support of her
motion to dismiss, including the “Declaration of Janay Podraza, the Chief of Court Case
Preparation and Review Branch 2 of the Office of Appellate Operations.” Defendant’s Motion To
Dismiss Pursuant To Fed. R. Civ. P. 12(b)(1) (Doc. #17) (Exhibit 1) at 1–3. The declaration
includes documents which show that plaintiff initially filed claims for disability benefits on March
30, 2017. Defendant’s Motion To Dismiss Pursuant To Fed. R. Civ. P. 12(b)(1) (Doc. #17)
(Exhibit 1) at 4–13. The state agency denied plaintiff’s claim at the initial level on July 25, 2017,
and upon reconsideration on December 27, 2017. Defendant’s Motion To Dismiss Pursuant To
Fed. R. Civ. P. 12(b)(1) (Doc. #17) (Exhibit 1) at 13–18, 34–38. On March 30, 2020, plaintiff
filed a new claim for disability benefits, which the state agency denied at the initial level on
October 16, 2020. Defendant’s Motion To Dismiss Pursuant To Fed. R. Civ. P. 12(b)(1) (Doc.
#17) (Exhibit 1) at 55–66. In deciding this motion, the Court considers Podraza’s declaration and
the documents attached to it. See Davis ex rel. Davis, 343 F.3d at 1295.
In Weinberger v. Salfi, 422 U.S. 749 (1975), the Supreme Court held that Section 205(h)

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of the Social Security Act bars general federal question jurisdiction in actions challenging a denial
of disability benefits. Id. at 766–68. Section 205(g) of the Social Security Act thus provides the
only means of judicial review and requires a “final decision of the Commissioner made after a
hearing” as a jurisdictional prerequisite. Reed v. Heckler, 756 F.2d 779, 782 (10th Cir. 1985); see
42 U.S.C. § 405(h) (“The findings and decision of the Commissioner . . . after a hearing shall be
binding upon all individuals who were parties to such hearing. No findings of fact or decision of
the Commissioner . . . shall be reviewed by any person, tribunal, or government agency as herein
provided.”). Because the term “final decision” is not defined by the statute, “its meaning is left to
the [Commissioner] to flesh out by regulation.” Weinberger, 422 U.S. at 766. In Mathews
v. Eldridge, the Supreme Court recognized that an exception to this “final decision” jurisdictional
requirement exists where the actions of the Commissioner “are challenged on constitutional
grounds and the constitutional claim is collateral to the substantive claim of entitlement.” 424
U.S. 319, 327 (1976); Reed, 756 F.2d at 783.
When the state agency denied plaintiff’s request for disability benefits on July 27, 2017,
and October 30, 2020, plaintiff received a “Notice of Disapproved Claim.” Defendant’s Motion
To Dismiss Pursuant To Fed. R. Civ. P. 12(b)(1) (Doc. #17) (Exhibit 1) at 13–18, 63–66. The first
page of each notice explained the framework for seeking administrative and judicial review of his
disability claims. Defendant’s Motion To Dismiss Pursuant To Fed. R. Civ. P. 12(b)(1) (Doc. #17)
(Exhibit 1) at 13, 63. Congress has directed that the initial determination whether an individual is
disabled is made by a state agency, pursuant to regulations and guidelines established by the
Commissioner. 42 U.S.C. § 421(a). If the state agency determines that the individual is not
disabled, the notice instructs the individual of his right to file an appeal, also known as a “Request
for Reconsideration,” within 60 days of the adverse initial determination. 20 C.F.R. §§ 404.904,

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404.909. By statute, if the individual does not file a timely appeal, the initial determination is final
and not reviewable by the district court. 20 C.F.R. § 404.905. On appeal, if the state agency issues
an adverse reconsideration decision, the individual is entitled to request a hearing before an
administrative law judge (“ALJ”) within 60 days of receiving the decision. 42 U.S.C. § 405(b)(1),
20 C.F.R. § 416.1421. The adverse reconsideration decision is binding upon the individual if he
does not timely request an ALJ hearing. 20 C.F.R. §§ 404.920, 404.921(a). If the ALJ issues an
adverse decision to the individual, he may seek review by the Appeals Council within 60 days of
the ALJ decision. 20 C.F.R. § 404.968(a)(1). The Commissioner is considered to have rendered
a “final decision” subject to judicial review under Section 405(g) only after the Appeals Council
has denied review or granted review and issued its own adverse decision against the individual.
Instead of following the appeals process, plaintiff chose to file this action. After the state
agency denied his request for benefits on July 27, 2017, plaintiff filed a request for reconsideration
within the required time frame. Defendant’s Motion To Dismiss Pursuant To Fed. R. Civ. P.
12(b)(1) (Doc. #17) (Exhibit 1), ¶ 3(a). On December 27, 2017, the state agency reviewed the case
and affirmed the decision to deny benefits. Defendant’s Motion To Dismiss Pursuant To Fed. R.
Civ. P. 12(b)(1) (Doc. #17) (Exhibit 1) at 34–38. After receiving the state agency’s reconsideration
decision, plaintiff did not file a request to have a hearing before an ALJ, as required under 20
C.F.R. § 416.1421. Because plaintiff did not request a hearing, the reconsideration order from
December 27, 2017, is binding and not subject to judicial review.
On March 30, 2020, plaintiff filed a new claim for disability benefits which the
Commissioner denied on October 16, 2020. Plaintiff never requested reconsideration. The order
from October 16, 2020, is thus binding on plaintiff and not subject to judicial review.
Because plaintiff did not exhaust his administrative remedies for either of his claims and

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has not alleged any basis for a colorable constitutional claim, this Court is without subject matter
jurisdiction in this case, and it must be dismissed. See Mathews, 424 U.S. at 330–32.
IT IS THEREFORE ORDERED that Defendant’s Motion To Dismiss Pursuant To Fed.
R. Civ. P. 12(b)(1) (Doc. #17) filed June 27, 2022 is SUSTAINED.
Dated this 1st day of August, 2022 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge

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