McQueen v. Berryhill

Filing 11

ORDER - Plaintiff's objections to the Report and Recommendation are DENIED; the Report and Recommendation 6 is ADOPTED and AFFIRMED; this action is hereby DISMISSED. Signed by Judge Michael H. Watson on 2/7/13. (jk1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JOHN W. McQUEEN,

Plaintiff,
Civil Action 2:12-cv-1124
Judge Watson
Magistrate Judge King

vs.

NANCY BERRYHILL,

Defendant.

ORDER
Plaintiff, a state prisoner, claims that he is entitled to Social Security
benefits but that defendant, apparently an employee of the Social Security
Administration, has refused to pay those benefits to plaintiff. The United States
Magistrate Judge recommended that the case be dismissed because the
Commissioner of Social Security is the only proper defendant in a claim for
Social Security benefits, see 42 U.S.C. § 405(g), and because the Court lacks
subject matter jurisdiction over the action, which does not appear to be based on
a final administrative decision following a hearing. /d. (a court may review the
denial of Social Security benefits only after the Commissioner of Social Security
has issued a final decision "made after a hearing ... "). Report and

Recommendation, Doc. No. 6. This matter is now before the Court on plaintiff's

objection to that recommendation. Objection, Doc. No. 10. The Court will
consider the matter de novo. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b).
Plaintiff does not address the issue of the proper defendant. Plaintiff does,
however, contend that a hearing was held. In support of this contention, plaintiff
refers to a January 23, 2012 letter received by him from the Social Security
Administration, Exhibit attached to Complaint, which refers to a "talk" with plaintiff
and which reflects an "informal decision" that plaintiff is not eligible for
Supplemental Security Income ("SSI") because he is incarcerated. The Court
notes that the letter also indicates that plaintiff had not filed a formal application
for benefits. /d.
That letter does not establish that plaintiff has followed the proper
procedures. The administrative hearing referred to in § 405(g) is a hearing
before an administrative law judge within the Social Security Administration's
Office of Hearings and Appeals and is held only after an application for benefits
has been denied. See 42 U.S.C. § 405(b)(1); 20 C.F.R. § 416.1429. Because
plaintiff has not, apparently, even filed a formal application for SSI benefits, an
informal decision advising plaintiff why he is not eligible for SSI does not qualify
as the administrative hearing required before a court can review a claim for
benefits.
Plaintiff also complains that the Social Security Administration did not
inform him of the proper procedures to follow. To the contrary, the letter that
Case No. 2:12-cv-1124

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plaintiff attached to his Complaint expressly recommends that plaintiff file a claim
for benefits, which is the first step in the administrative process.
Plaintiff's objections to the Report and Recommendation are DENIED.
The Report and Recommendation, Doc. No. 6, is ADOPTED AND AFFIRMED.
This action is hereby DISMISSED.
The Clerk is DIRECTED to enter FINAL JUDGMENT .

.w~

M CHAEL H. WATSON, JUDGE
UNITED STATES DISTRIC COURT

Case No. 2:12-cv-1124

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