McQueen v. Berryhill

Filing 6

REPORT AND RECOMMENDATION It is recommended that this action be dismissed re 1 Complaint. Objections to R&R due by 1/4/2013. Signed by Magistrate Judge Norah McCann King on 12/18/12. (rew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JOHN W. McQUEEN,
Plaintiff,
vs.

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

NANCY BERRYHILL,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff, a state prisoner, brings this action seeking past
benefits allegedly due him under the Social Security Act.

This matter

is now before the Court for the initial screen of the Complaint
required by 28 U.S.C. §§ 1915(e)(2), 1915A.
Plaintiff alleges in the Complaint, Doc. No. 1, that he is
entitled to Social Security benefits (whether disability insurance
benefits, supplemental security income or old-age benefits is not
entirely clear), but that defendant, apparently an employee of the
Social Security Administration, has refused to pay those benefits to
plaintiff.

The Complaint further alleges that exhaustion of

plaintiff’s claim “would be a waste of time.”

Id., p. 3.

Federal law establishes the proper procedure to be followed when
an individual believes that he has been improperly denied Social
Security benefits.

Section 405(g) of Title 42 of the United States

Code provides, in pertinent part, as follows:
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

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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.
The Commissioner of Social Security is the only proper defendant in
such an action.

See id.

Moreover, an action for review of the denial

of Social Security benefits can be brought in a court only after the
Commissioner of Social Security has issued a final decision “made
after a hearing to which he was a party. . . .”

42 U.S.C. § 405(g).

This procedure is the only procedure that can be followed if an
individual seeks review by a court of a denial of Social Security
benefits.

42 U.S.C. § 405(h).1

Because plaintiff has not followed the procedures set forth in 42
U.S.C. § 405(g), i.e., he has not named the Commissioner of Social
Security as a defendant and it does not appear that the decision
challenged by plaintiff was the subject of a hearing before the Social
Security Administration, this action cannot proceed.2
It is therefore RECOMMENDED that this action be dismissed for
lack of subject matter jurisdiction and for failure to state a claim
upon which relief can be granted.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part

1

Section 405(h) provides, in pertinent part: “No action against the United
States, the Commissioner of Social Security, or any officer or employee
thereof shall be brought under section 1331 or 1346 of Title 28 to recover on
any claim arising under this subchapter.”

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thereof in question, as well as the basis for objection thereto.
U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections must

be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters,

638 F.2d 947 (6th Cir. 1981).

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

DATE: December 18, 2012

2

The Court expresses no opinion on the timeliness of plaintiff’s action.

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