Daizer Mate v. Commissioner of Social Security

Filing 19

REPORT AND RECOMMENDATION that 5 MOTION for Guardian Ad Litem be denied as moot and that 17 MOTION to Dismiss be granted. Objections to R&R due by 11/25/2016. Signed by Magistrate Judge Terence P. Kemp on 11/7/2016. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Winner Dawan Mate,

:

Plaintiff,

:

v.

:

:
Commissioner of Social Security,
et al.,
:
Defendants.

Case No.

2:15-cv-2986

JUDGE GEORGE C. SMITH
Magistrate Judge Kemp

REPORT AND RECOMMENDATION
Plaintiff, Winner Dawan Mate, filed this action against the
Commissioner of Social Security and certain of its employees.
This matter is now before the Court on two motions: (1) the
plaintiff’s motion for a guardian ad litem (Doc. 5) and the
defendants’ motion to dismiss (Doc. 17).
for decision.

Both motions are ripe

For the following reasons, it will be recommended

that the plaintiff’s motion for a guardian ad litem be denied and
the defendants’ motion to dismiss be granted.
I.

Introduction

Mr. Mate filed this action against the Commissioner of
Social Security, Patrice Merchant, Harry Liggins, and Gina
Workman, seeking (1) judicial review of the back-payment
calculation of his Supplemental Security Income benefits (“SSI”);
(2) a review of an SSI overpayment waiver determination; and (3)
a judgment against the defendants for banning him from the Social
Security Administration (“SSA”) offices.

In support of their

motion to dismiss, the defendants provide a Declaration of Roxie
Nicoll, the Chief of Court Case Preparation and Review Branch 3
of the Office of Appellate Operations of the Office of Disability
Adjudication and Review of the SSA (Doc. 17, Exhibit 1) which the

Court has reviewed in conjunction with the complaint and
remainder of the record.
The facts are summarized as follows.

On May 1, 2013, Mr.

Mate was awarded lump sum retroactive Title XVI SSI benefits for
a period of disability beginning in February of 2006.

Mr. Mate

sought an administrative review of the lump sum benefits and,
according to the defendants’ motion, his application for review
was initially misplaced, but is currently being reviewed by the
SSA.

It was separately determined that there had been an

overpayment of the lump sum benefits in the amount of $1,247.00
for time in March 1999 and January-February 2002 during which he
was incarcerated and therefore not entitled to SSI benefits
during those time periods.

Id. at ¶3.

The SSA wished to

withhold the overpayment from Mr. Mate’s retroactive SSI
payments.

Mr. Mate filed a request for waiver of overpayment

recovery, which the SSA denied.

He then sought reconsideration

of the denial, which was also unsuccessful.

Mr. Mate was given

the opportunity to request a hearing on the matter before an
administrative law judge, but did not do so.

Id. at ¶3.

Mr. Mate filed this lawsuit on February 26, 2016 against the
Commissioner of Social Security and three individual employees of
the SSA, seeking a review of his lump sum backpayment award plus
interest, penalties and taxes, as well as the overpayment waiver
determination.

He also seeks an order to grant him “equal

access” to the SSA offices.

The equal access claim stems from

Mr. Mate’s claim that he was barred from the SSA offices by the
defendants.
II.

Legal Standard

Rule 12(b)(1) motions to dismiss based upon subject matter
jurisdiction generally come in two varieties. A facial attack on
the subject matter jurisdiction alleged by the complaint merely
questions the sufficiency of the pleading. In reviewing such a
-2-

facial attack, a district court takes the allegations in the
complaint as true, which is a similar safeguard employed under
12(b)(6) motions to dismiss. On the other hand, when a court
reviews a complaint under a factual attack, as here, no
presumptive truthfulness applies to the factual allegations. When
facts presented to the district court give rise to a factual
controversy, the district court must weigh the evidence to
conclude whether or not subject matter jurisdiction exists. In
reviewing these motions, a trial court has wide discretion to
allow affidavits, documents and even a limited evidentiary
hearing to resolve disputed jurisdictional facts.

Ohio Natl.

Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.
1998).

“A dismissal under 12(b)(1) allows for the possibility of

repleading the action to bring it within the subject matter
jurisdiction of some court.”

Id.

It is with these standards in

mind that the defendants’ motion to dismiss will be considered.
III.

Discussion

The Social Security Act (the “Act”) provides the basis for
judicial review of SSA benefits, which is available only after a
benefit claimant receives a final decision from the Commissioner
of Social Security.

42 U.S.C. §405(g).

As an initial matter,

Mr. Mate names three individual defendants in his complaint who
work for the SSA.

The defendants correctly point out that

lawsuits pursuant to the Act are permitted against the
Commissioner of Social Security only, not individually named
employees of the SSA.

Thus, the claims against Mr. Merchant, Mr.

Liggins, and Ms. Workman are invalid.
A Social Security claimant must complete a four-step
administrative review process to obtain a final decision that may
be the basis for a lawsuit in federal court.
Sanders, 430 U.S. 99, 102 (1977).

Califano v.

The defendants’ primary

argument in support of dismissal is that Mr. Mate has failed to
-3-

obtain a final decision within the meaning of the Act, which
provides that “[a]ny individual, after any final decision of the
Commissioner made after a hearing to which he was a party,
irrespective of the amount in 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 may allow...”

The defendants’

argument constitutes a factual attack challenging the existence
of the Court’s subject matter jurisdiction to hear this claim.
With respect to Mr. Mate’s claims, he did seek to review the
determination of his lump sum backpayment, but the SSA initially
misplaced the claim, which is now being processed.

However, in

order for the Court to have jurisdiction over that claim he must
receive a final decision.
The Court of Appeals has described the SSI benefits review
process as an “unusually protective four step process to
facilitate the orderly and sympathetic administration of disputed
claims which culminates in a final decision of the Secretary
subject to judicial review.”
397 (6th Cir. 1991).

Willis v. Sullivan, 931 F.2d 390,

First, a claimant is entitled to an initial

determination of disability.

Second, the claimant may request a

de novo reconsideration of the initial determination.

Third, if

still dissatisfied, the claimant is entitled to an evidentiary
hearing and a de novo review before an Administrative Law Judge
(“ALJ”). Fourth, the claimant may take an appeal to the Appeals
Council.

Only then claimant may then seek judicial review in

federal district court. Thus, for purposes of the finality
requirement of § 405(g), a claim only becomes final for judicial
review in a federal district court after the Appeals Council
renders its decision.

Because Mr. Mate has not received a final

decision with respect to his first two claims, the Court lacks
subject matter jurisdiction and those claims must be dismissed.
-4-

Mr. Mate also alleges that after he moved to reconsider the
denial of overpayment waiver, the SSA “retaliated by banning
Plaintiff from SSA offices.”

(Doc. 3 at 4).

The defendants do

not deny that he was banned from SSA offices, but Mr. Mate does
not provide any evidence of retaliation.

The defendants assert

that SSA offices are permitted to ban individuals from entering
SSA offices.

Restricting access to SSA offices is acceptable

because the individuals have a number of other means to seek and
receive services from the SSA, such as online, telephone,
correspondence, or authorizing a representative to seek
assistance on their behalf.

In fact, Mr. Mate used an authorized

representative to assist him in receiving his lump sum
backpayment of benefits.

There are also regulations in place

that provide for individuals to appeal any ban from SSA offices
within 60 days of the ban, and to periodically seek
reconsideration.

20 C.F.R. §422.905-906.

The defendants also

cite to case law which supports the notion that an individual’s
right of access to federal property can be reasonably limited in
the interest of safety.

See Downing v. Kunzig, 454 F.2d 1230,

1232 (6th Cir. 1972); United States v. Cassiagnol, 420 F.2d 868,
875 (4th Cir. 1970).

Accepting as true that Mr. Mate was banned

from SSA offices, some bans are within the parameters of the
Commissioner of the SSA’s authority, and Mr. Mate has not pleaded
any facts making it plausible that his ban was improper.
Consequently, this claim is also subject to dismissal.
III.

Conclusion

For the foregoing reasons, it is recommended that the
defendants’ motion to dismiss (Doc. 17) be granted.

It is

further recommended that the plaintiff’s motion for a guardian ad
litem (Doc. 5) be denied as moot.

-5-

Procedure on Objections
If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
portions

of the report or specified proposed findings or

recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver 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); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge

-6-