NELLOM v. COMMISSIONER OF SOCIAL SECURITY

Filing 16

MEMORANDUM OPINION. SIGNED BY MAGISTRATE JUDGE RICHARD A. LLORET ON 11/13/23. 11/13/23 ENTERED AND COPIES E-MAILED.(amas)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
FRANK NELLOM
Plaintiff,
v.
KILOLO KIJAKAZI,1 Comm. of
Social Security,
Defendant.
RICHARD A. LLORET
U.S. MAGISTRATE JUDGE

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CIVIL ACTION

NO. 23-cv-01268-RAL

November 13, 2023

MEMORANDUM OPINION
The Commissioner of Social Security has moved to dismiss Plaintiff Frank
Nellom’s (“Mr. Nellom”) complaint, alleging that Mr. Nellom failed to exhaust his
administrative remedies. (ECF Doc. No. 13). Mr. Nellom counters that he received an
order from an Administrative Law Judge (“ALJ”) on October 12, 2017, granting benefits,
and it is this order upon which he seeks relief. (ECF Doc. No. 14). Mr. Nellom has also
filed two motions for summary judgment, seeking a judgment against the Social Security
Administration reinstating an earlier award of benefits (ECF Doc. Nos. 12, 15). The
Commissioner has not directly addressed the October 2017 granting of benefits in its
motion, arguing that Mr. Nellom filed for benefits in May 2021, was denied, and failed
to attend the scheduled hearing before an ALJ in August 2023. It is this denial of
benefits that is the matter in controversy before me in this case, according to the

Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Mr. Nellom filed his
action against the “Commissioner of Social Security,” however, naming the current Acting Commissioner
is the correct procedure in our court.
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Commissioner. I agree. For the reasons set forth below, I will grant the Commissioner’s
motion to dismiss the complaint, and deny Plaintiff’s motions for summary judgment.
PROCEDURAL HISTORY
On May 27, 2021, Mr. Nellom filed an application for Supplemental Security
Income under Title XVI of the Social Security Act. See ECF Doc. No. 13-1, Declaration of
Janay Podraza (“Decl.”) at ¶ 3(a); Exhibit 1.2 The state agency denied Mr. Nellom’s
application on July 16, 2021, and again on reconsideration on January 5, 2022. Decl. at
¶ 3(b); Exhibit 3. On January 8, 2022, Mr. Nellom filed a request for a hearing by an
ALJ, but filed this action on April 5, 2023, before a hearing was scheduled. Decl. at ¶
3(c); Exhibit 4.3 On July 14, 2023, the hearing office sent Mr. Nellom a letter
acknowledging the hearing request and explaining the hearing process. Decl. at ¶ 3(e);
Exhibit 5. On July 19, 2023, Mr. Nellom was sent a notice that a hearing was scheduled
for August 2, 2023. Decl. at ¶ 3(e); Exhibit 6. Mr. Nellom failed to appear at the hearing
scheduled on August 2, 2023. Decl. at ¶ 3(f). Mr. Nellom’s case is still pending at the
ALJ level, and an ALJ has not issued a decision in this case. Decl. at ¶ 3(g).
STANDARDS OF REVIEW
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement
of the claim showing that the pleader is entitled to relief,” in order to “give the defendant
fair notice of what the ... claim is and the grounds upon which it rests,” Bell Atl. Corp. v.

I rely upon the procedural history set forth in Ms. Podraza’s Declaration because the Commissioner has
not filed the record, due to there being no final decision by an ALJ. The Declaration contains a chronology
of the steps taken in the case, and attaches as exhibits copies of the various notices sent to Mr. Nellom.
3 The Complaint filed in this action, ECF Doc. No. 2, does raise the October 2017 award of benefits
granted by ALJ Gauffreau, and even attaches as Exhibit A to the Complaint, the last page of the ALJ’s
decision. ECF Doc. No. 2-1, p. 1. The Complaint also references, however, Mr. Nellom’s new application
for benefits, dated June 1, 2021, and attached as Exhibit F to the Complaint the first page of the letter
from SSA to Mr. Nellom, also dated June 1, 2021, acknowledging receipt of the application for
Supplemental Security Income (SSI). ECF Doc. No. 2-1, p. 6.
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Twombly, 550 U.S. 544, 555–56 (2007), citing Conley v. Gibson, 355 U.S. 41, 47 (1957).
A complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, but a plaintiff must provide the grounds for his entitlement to relief.
Papasan v. Allain, 478 U.S. 265, 286 (1986) (on a motion to dismiss, courts “are not
bound to accept as true a legal conclusion couched as a factual allegation”). Factual
allegations must be enough to raise a right to relief above the speculative level, see 5 C.
Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235–236 (3d ed.2004)
(“[T]he pleading must contain something more ... than ... a statement of facts that
merely creates a suspicion [of] a legally cognizable right of action”), on the assumption
that all the allegations in the complaint are true (even if doubtful in fact), see, e.g.,
Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508, n. 1 (2002); Neitzke v. Williams, 490
U.S. 319, 327 (1989) (“Rule 12(b)(6) does not countenance ... dismissals based on a
judge’s disbelief of a complaint’s factual allegations”); Scheuer v. Rhodes, 416 U.S. 232,
236 (1974) (a well-pleaded complaint may proceed even if it appears “that a recovery is
very remote and unlikely”).
“[W]hen presented with a motion to dismiss for failure to state a claim, district
courts should conduct a two-part analysis. First, the factual and legal elements of a
claim should be separated. The District Court must accept all of the complaint’s wellpleaded facts as true, but may disregard any legal conclusions. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). Second, a District Court must then determine whether the facts
alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for
relief.’ Id. at 679.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009).

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DISCUSSION
There is no decision ripe for review in this case.
Mr. Nellom contends that he received an award of benefits from an ALJ in
October 2017. He has apparently filed the presentaction in an attempt to have that
award reinstated. However, he has filed this action after applying for benefits in May of
2021, and it is that filing which is therefore before me. Because Mr. Nellom has not yet
proceeded to a hearing before an ALJ (who may, in fact, grant the benefits he seeks),
there is no final order for my review, and the action must be dismissed.
Title 42 U.S.C. §§ 405(g) and 1383(c)(3) provide the basis for judicial review of
Social Security cases. “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 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.” 42 U.S.C. § 405(g). “The final
determination of the Commissioner of Social Security after a hearing under paragraph
(1) shall be subject to judicial review as provided in section 405(g) of this title to the
same extent as the Commissioner’s final determinations under section 405 of this title.”
42 U.S.C.A. § 1383(c)(3).
Because Mr. Nellom has filed his complaint pro se, I must liberally construe his
pleadings, and will apply the applicable law, irrespective of whether the pro se litigant
has properly described it. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003).
Despite his pro se status, however, plaintiff must still allege sufficient facts in his
complaint to support a claim. See Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir.
1996). And he may not flout procedural rules—he must abide by the same rules that
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apply to all other litigants. See McNeil v. United States, 508 U.S. 106, 113 (1993) (“[W]e
have never suggested that procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed without counsel.”); Mala v.
Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).
The Commissioner argues that, “[b]ecause the requirements in 42 U.S.C. §§
405(g) and 1383(c)(3) are “non-jurisdictional and may be waived,” Federal Rule of Civil
Procedure 12(b)(6) is the appropriate basis for a motion to dismiss for failure to exhaust
administrative remedies.” See Cope v. Soc. Sec. Admin., 532 F. App’x 58, 60, n.2. (3d.
Cir. 2013). I agree.
42 U.S.C. § 405(h) provides in relevant part:
The findings and decision of the Commissioner of Social Security after a hearing
shall be binding upon all individuals who were parties to such hearing. No
findings of fact or decision of the Commissioner of Social Security shall be
reviewed by any person, tribunal, or governmental agency except as herein
provided. 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, United States Code, to recover on any claim arising under this
title.
Id. (emphasis added). The Commissioner contends in her motion that, “Congress
has explicitly mandated that, in claims arising under the Social Security Act, judicial
review is permitted only in accordance with the factors identified above.” 42 U.S.C. §§
405(g), (h). See also Smith v. Berryhill, 139 S. Ct. 1765, 1772 (2019) (“Congress made
clear that review would be available only ‘as herein provided’—that is, only under the
terms of § 405(g).” (citing § 405(h) and Heckler v. Ringer, 466 U.S. 602, 614 (1984))).
The Commissioner further points out that the Supreme Court “long has acknowledged
the general rule that parties exhaust prescribed administrative remedies before seeking
relief from the federal courts.” McCarthy v. Madigan, 503 U.S. 140, 144-45 (1992).
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Judicial review is authorized by Section 405(g) only of a “final decision of the
Commissioner of Social Security made after a hearing.” 42 U.S.C. § 405(g).
The disconnect here, for the Plaintiff, is that he believes he is appealing a final
decision, that is, the October 2017 decision of ALJ Stuart Gauffreau, granting him
benefits. He is incorrect. Plaintiff applied anew for benefits in May 2021, failed to attend
the scheduled hearing, and now seeks to have this new application for benefits reviewed
here. This I cannot do. I likewise cannot grant Mr. Nellom’s motions for summary
judgment, recently filed at ECF Doc. Nos. 12 and 15, because both motions refer to the
earlier grant of benefits in 2017, which is not before me.
Mr. Nellom believes that his original grant of benefits was improperly stopped
when he was incarcerated, and that he is entitled to have this court reinstate those
benefits. But the Social Security Regulations do not provide for such a procedure, when
a claimant attempts to obtain benefits by filing a new claim. This is what Mr. Nellom did
here. He therefore must follow through on the administrative steps before he brings his
claim to federal court.
The Commissioner has addressed why the requirements of proceeding with the
administrative process should not be waived in this case.
Although the exhaustion requirement may, in certain rare circumstances, be
excused, Smith v. Berryhill, 139 S. Ct. 1765, 1773 (citing Bowen v. City of New
York, 476 U.S. 467, 484 (1986); Mathews v. Eldridge, 424 U.S. 319, 330 (1976)),
this case presents no such circumstances. To justify excusing the exhaustion
requirement, a plaintiff must demonstrate that three factors are present: (1) the
claims in the lawsuit are collateral to claims for benefits; (2) the plaintiff would
be irreparably injured were the exhaustion requirement enforced against them;
and (3) exhaustion would have been futile. L.N.P. v. Kijakazi, 64 F.4th 577, 586
(4th Cir. 2023) (citing Bowen, 476 U.S. at 483–85). None—much less all three—
of the factors articulated in Bowen is present here.

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First, and most significantly, Plaintiff’s claim here is not collateral to a claim
for benefits, it is a claim for benefits. Cf. id. at 587 (explaining that even “claimed
systemic procedural violations” were not collateral when the alleged violations
arose from the plaintiff’s own claim for benefits). Second, to the extent that
proceeding through each step of the administrative process may delay receipt of
the benefits Plaintiff feels he is due, such “[e]conomic hardship . . . is not the kind
of equitable condition for which courts have excused exhaustion of the
administrative process.” Id. at 588. Third, a request that an additional agency
actor assess his claim might well result in the benefits Plaintiff seeks, and, hence,
exhaustion cannot be said to be futile. See id. at 588–89 (explaining that the
policies underlying the exhaustion requirement include preventing premature
interference with agency processes so that the agency may . . . have an
opportunity to correct its own errors (citing Bowen, 476 U.S. at 484) (cleaned
up)). In sum, Plaintiff cannot show that his failure to exhaust should be excused.
Motion at 6-7.
I agree with the Commissioner. Mr. Nellom has filed for benefits, but has not
followed through with the administrative process by appearing at a hearing before an
ALJ. Doing so may result in an award of benefits. Mr. Nellom’s Complaint is premature
and will be dismissed.

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CONCLUSION
Because the Plaintiff has not exhausted his administrative remedies, this case is
not ripe for a decision in the district court. I will grant the Commissioner’s motion to
dismiss the Complaint, (ECF Doc. No. 13), without prejudice for the Plaintiff to re-file a
complaint if he does not receive relief in the administrative process before the
Commissioner. Additionally, I will deny the Plaintiff’s two motions for summary
judgment. (ECF Doc. Nos. 12, 15). An appropriate order follows.
BY THE COURT:

_s/Richard A. Lloret
_________
RICHARD A. LLORET
UNITED STATES MAGISTRATE JUDGE

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