Blair v. Commissioner of Social Security Administration

Filing 49

ORDER RULING ON REPORT AND RECOMMENDATIONS granting 35 Motion to Dismiss, filed by Commissioner of Social Security Administration, adopting 46 Report and Recommendations. Signed by Honorable Richard M Gergel on 5/30/12. (alew, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Tawanda Blair, on behalf of lAS,
Plaintiff,
vs.
Commissioner of Social Security
Administration,
Defendant.

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Civil Action No.8: 11-1839

ORDER

Plaintiff, proceeding pro se, seeks judicial review of the denial of Social Security benefits
to her minor child, lAS. Plaintiff initially applied for benefits for lAS on June 22, 2009, which
was denied by the Social Security Administration, and a timely appeal was filed for a hearing
before an administrative law ("ALJ"). On October 5, 2011, the ALJ denied Plaintiffs
application for benefits and Plaintiff then filed a timely request for review by the Appeals
CounciL While the request for review was before the Appeals Council, Plaintiff brought this
action the United States District Court for the Middle District of Alabama. The case was
thereafter transferred to the District of South Carolina. (Dkt. No.1). Defendant subsequently
moved to dismiss this action for lack ofjurisdiction because there was no final agency decision
since the Plaintiff filed her request for judicial review while the matter was still pending before

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the Appeals Council. (Dkt. No. 35-1).1
This matter was initially referred to the Magistrate Judge for pre-trial handling pursuant
to 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C. Upon the filing of Defendant's motion to
dismiss, the Magistrate Judge issued a Roseboro Order advising Plaintiff that if she failed to file
objections "the court may grant the defendant's motion, which may end your case." (Dkt. No. 37
at 1). The Roseboro Order was returned undelivered and the Clerk's office followed up with
Plaintiff and learned that she had failed to pay her post office box fee. The Clerk's office was
advised she could now receive mail at her post office box and the Order was again sent to her.
(Dkt. Nos. 41, 45). Plaintiff advised the Court that she wished to dismiss her case and a few days
later wrote the Court and indicated she wished to go forward with her case. (Dkt. Nos. 39,42).
Plaintiff did not, however, file any objection to Defendant's motion to dismiss.
The Magistrate Judge issued a Report and Recommendation on May 4, 2012
recommending that Defendant's motion to dismiss be granted. (Dkt. No. 46). Plaintiff was
advised that if she failed to make specific written objections to the Magistrate Judge's R & R
within 14 days of service she would be entitled to limited judicial review and waive her right to
appeal. (Dkt. No. 46-1 at I). Plaintiff has filed no written objections to the R & R.
The Court has reviewed the R & R, the record before the Court and the applicable case
law. The Court finds that the R & R comprehensively addresses the factual and legal issues
before the Court and hereby ADOPTS the R & R as the order ofthe Court. Therefore, the Court

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general rule in Social Security appeals is that exhaustion of administrative remedies
is essential to obtain federal court review "as a matter of preventing premature interference with
agency processes, so that the agency may function efficiently and so that it may have an
opportunity to correct its own errors." Weinberger v. Salji, 422 U.S. 749, 765 (1975).
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DISMISSES this action WITH PREJUDICE.2
AND IT IS SO ORDERED.

Richard Mark

:if

United States District Judge

Charleston, South Carolina
May.l~2012

2 This dismissal with prejudice is in regard to the Court's lack ofjurisdiction because of
the premature filing of the federal court action while the matter was still pending before the
Appeals Council. This order does not affect Plaintiffs right to file a timely appeal should the
Appeals Council fail to provide her relief in regard to Social Security benefits sought by her
minor child, lAS.

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