Smith v. Commissioner of Social Security

Filing 16

OPINION AND ORDER ADOPTING 7 REPORT AND RECOMMENDATIONS in all respects; that 7 Motion to Dismiss/Lack of Jurisdiction is GRANTED; that Plaintiff's Objections (Doc. 15) are DENIED; that the case is DISMISSED with prejudice from the Court's docket. Signed by Judge S Arthur Spiegel on 6/2/11. (mr) (Additional attachment(s) added on 6/2/2011: # 1 Certified Mail Receipt DN 16 & 17 sent) (mr).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JACQUES E. SMITH,

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Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

NO. 1:09-CV-925
OPINION AND ORDER

This matter is before the Court on the Magistrate Judge’s
March 1, 2011 Report and Recommendation (doc. 13), and Plaintiff’s
Objections (doc. 15).

For the reasons indicated herein, the Court

ADOPTS and AFFIRMS the Magistrate Judge’s Report and Recommendation
that Motion to Dismiss for Lack of Jurisdiction be GRANTED and
DISMISSES this case from the Court’s docket.
I.

Background
Plaintiff first sought disability insurance benefits

(“DIB”) in 2001 based on an injury incurred while employed as a
truck driver on June 6, 1983 (doc. 3).

Plaintiff represents that

in 1997 he was placed on total disability by the Ohio Bureau of
Workers’ Compensation (Id.).

On July 25, 2001, an administrative

law judge (“ALJ”), issued a dismissal order, denying Plaintiff’s
request

for

a

hearing

regarding

the

application

(doc.

7).

Plaintiff sought no further review of the 2001 application denial
(Id.).

In 2006, Plaintiff again filed an application for DIB, and

then filed an application for social security insurance (“SSI”)
benefits on March 8, 2006 (Id.).

In October 2006, Plaintiff was

denied disability benefits (Id.).

Again, on January 23, 2008,

Plaintiff filed an application for disability benefits (Id.). Like
the 2001 and 2006 applications, this application was denied (Id.).
Additionally, as Plaintiff failed to do with the 2001 denial of
benefits, Plaintiff did not administratively appeal either the 2006
or 2008 denials of benefits (Id.).
On December 22, 2009, Plaintiff filed his complaint in
this matter (doc. 3).

Plaintiff requests that the Court overturn

the initial denial of benefits, as well as an award dating back to
the original claim, which the Magistrate Judge determined likely
referred to the 2006 claim (Id.; doc. 13).
II.

Discussion
Federal courts are not courts of general jurisdiction.

Plaintiff argues that this Court has jurisdiction to grant relief
under 42 U.S.C. § 405(g).

Defendant argues that Plaintiff’s

complaint must be dismissed for lack of subject matter jurisdiction
based on lack of any reviewable “final decision” determined by the
See Fed. R. Civ. P. 12(b)(1).

Social Security Administration.

Before this Court can take jurisdiction under 42 U.S.C.
§ 405(g), the Plaintiff must have exhausted all administrative
remedies. Sims v. Apfel, 530 U.S. 103 (2007).
is

appropriate

when

claimant

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has

failed

Dismissal of claims
to

exhaust

all

administrative remedies required to obtain a final decision. See
Heckler v. Ringer, 466 U.S. 602 (1984).
The claimant must follow the steps set forth by the
Social Security Administration.

See 20 C.F.R. §404.902.

individual must file an application for benefits.

An

If dissatisfied

with the initial determination on the application, the claimant can
seek reconsideration.

20 C.F.R. §404.907.

If the claimant is

still dissatisfied, he may seek an evidentiary hearing before an
administrative law judge (ALJ).

20 C.F.R. §404.929.

Finally, if

the claimant is dissatisfied with the determination of the ALJ, he
may seek review before the Appeals Council.

20 C.F.R. §404.967.

Only after the Appeals Council has denied the review, or granted
review and issued a decision, may the claimant seek judicial review
on the “final decision” in federal court.
A.

The Magistrate Judge’s Report and Recommendation (doc. 13)
In the Report and Recommendation the Magistrate Judge

reviewed the record, determining that there was no dispute that the
Plaintiff failed to exhaust his administrative remedies to the
extent

that

he

did

not

appeal

the

denial

applications in 2001, 2006, or 2008 (doc. 13).

of

his

benefit

The Magistrate

Judge then reviewed Plaintiff’s argument that the ordinary rule
should not apply in his case based on alleged procedural errors
made by the Defendant throughout the administrative process (Id.).

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The

Magistrate

Judge

rejected

Plaintiff’s

argument

concerning the 2001 application, that Plaintiff was denied a
hearing before the Appeals Council because the ALJ dismissed his
hearing request (Id.).

The Magistrate Judge found the Plaintiff’s

reasoning unpersuasive because Plaintiff could still have filed an
appeal of the ALJ’s decision before the Appeals Council pursuant to
20 C.F.R. §404.967 (Id.).
Plaintiff

also

argues

that

the

Secretary

failed

to

provide him with adequate notice of the denial of his application
for disability benefits in 2001 and 2006 (doc. 8).
Judge

also

found

this

argument

unpersuasive

The Magistrate
(doc.

13).

Plaintiff’s Complaint cites specific dates when applications were
denied (doc. 3).

Additionally, Plaintiff never suggested in his

Complaint or at any other point during this experience that he had
not received adequate notice of the 2001 or 2006 denials of
applications

(doc.

13).

Finally,

Plaintiff

has

not

offered

sufficient proof that he failed to receive the 2001 or 2006
decisions (Id.).
The Magistrate Judge further rejected the last argument
offered by the Plaintiff.

Plaintiff argues he was not able to

pursue an appeal after receiving the 2008 denial of benefits (doc.
8). However, Plaintiff admits receiving the standard notice, which
provides clear instructions for filing a written appeal (doc. 13).
The

Magistrate

Judge

found

Plaintiff

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neither

followed

the

instructions, nor did Plaintiff seek an extension of time to
perfect an administrative appeal (Id.).
B.

Plaintiff’s Objections (doc. 15)
Plaintiff

argues

in

his

objections

that

the

Social

Security Administration discriminated against the Plaintiff by
removing him from the Social Security office (doc. 15).

Plaintiff

further argues that this removal was the result of Plaintiff’s
challenge to the authority of a “non-citizen,” and that the removal
denied him his right to a hearing before a Social Security judge
(Id.).
C.

Analysis
Having reviewed and considered this matter de novo, the

Court

finds

the

Magistrate

Judge’s

Report

and

Recommendation

thorough and well-reasoned. The Court therefore adopts and affirms
in

all

respects

the

opinions

expressed

in

the

Report

and

Recommendation (doc. 13), and denies Plaintiff’s Objections (doc.
15).
In

his

objection,

Plaintiff

argues

a

series

of

administrative errors kept him from receiving the Social Security
benefits to which he was entitled (Id.).

He additionally alleges

discrimination by the Social Security Administration (Id.).

The

Court notes the unfortunate series of events that potentially left
pro se Plaintiff in a difficult posture, while apparently vying for
benefits between Ohio Workers’ Compensation and the Social Security

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Administration from the time of the accident in 1983 to the
present.

However, the Court does not find Plaintiff’s objections

well-taken.

The Court cannot overlook that Plaintiff failed to

exhaust the administrative remedies required by the Social Security
Act, 42 U.S.C. §405(g), and consequently the federal court system
cannot take jurisdiction over this matter.
III.

Conclusion
Ultimately, Plaintiff failed to follow the procedures set

forth in 42 U.S.C. §405(g), and this Court is not permitted to take
jurisdiction of his claim.

Accordingly, the Court ADOPTS and

AFFIRMS the Magistrate Judge’s Report and Recommendation (doc. 13)
in all respects, and DISMISSES this case WITH PREJUDICE from the
Court’s docket.

SO ORDERED.

Date: June 2, 2011

/s/ S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge

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