Whitaker v. Social Security Administration

Filing 17

REPORT AND RECOMMENDATION: Magistrate Judge Bryant RECOMMENDS that defendant's MOTION to Dismiss 10 be Granted. Signed by Magistrate Judge John S. Bryant on 5/7/12. (xc:Pro se party by regular and certified mail.)(dt)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION
KERRY WHITAKER
v.
SOCIAL SECURITY ADMINISTRATION

To:

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No. 1:12-0009
Judge Nixon/Bryant

The Honorable John T. Nixon, Senior Judge

REPORT AND RECOMMENDATION
I. Statement of the Case
On January 19, 2012, plaintiff Kerry Whitaker, proceeding pro se and in forma

pauperis, filed this action against the Social Security Administration (“SSA”), through its
Commissioner Michael J. Astrue, and against attorney (and former Davidson County
Chancellor) Robert S. Brandt. As grounds for filing in federal court, plaintiff stated in his
complaint: “Because of Judge Robert S. Brandt Judicial Impropriety that has found it[s] way
into my Social Security case. It’s a violation of my Fourteenth Amendment ‘Fair and
impartial, disinterest[ed] tribunal.’” (Docket Entry No. 1) The complaint further appears to
allege that Mr. Brandt presided over plaintiff’s workers’ compensation lawsuit in the 1990s;
that Mr. Brandt engaged in judicial misconduct in the course of that litigation; and that the
SSA had Mr. Brandt’s “settlement order” before it when it rendered its decision on his claim
to disability benefits. Id. at 2
On April 6, 2012, defendant SSA filed a motion to dismiss plaintiff’s complaint
pursuant to Fed. R. Civ. P. 12(b)(6), arguing that this action was not timely filed. (Docket
Entry No. 10) In support of its motion, defendant has submitted documentation of the

administrative proceedings on plaintiff’s disability claims, from which it appears that a prior
finding on an earlier claim resulted in the denial of disability benefits through February 26,
1999, but that his most recent application resulted in a fully favorable decision, dated June 4,
2010, and an award of benefits due from the filing of the application in October 2005.
(Docket Entry No. 12-1 at 5) Plaintiff administratively appealed that decision, while also
requesting that the 1999 decision be reopened; the SSA’s Appeals Council issued a notice of
denial of his appeal and request for reopening on October 26, 2011. (Docket Entry No. 12-2)
Included in that notice was advice of plaintiff’s right to further appeal the agency
determination by filing suit in this court within sixty (60) days of receipt of the notice. Id. at
3.
It appears from plaintiff’s filings that this action is based primarily upon his
expectation that the issues of alleged impropriety in the adjudication of his workers’
compensation case in 1995 (see Docket Entry No. 7-19 at 1-2, 8-9) and in other matters
arising from his prior employment would be considered by the SSA in rendering its decisions
on his disability claims. (Docket Entry Nos. 1, 15, 16) His complaint includes a prayer for
relief in the form of “Back pay full disability from 1995 on up until this end.” (Docket Entry
No. 1 at 3)

II. Conclusions of Law
The Social Security Act provides the exclusive vehicle for judicial review of
final decisions by the SSA on disability benefits claims. 42 U.S.C. § 405(g)-(h); In re Sutton,
652 F.3d 678, 679 (6th Cir. 2011) (citing, e.g., Shalala v. Illinois Council on Long Term Care,
Inc., 529 U.S. 1, 10 (2000)). Section 405(g) -- incorporated for purposes of Supplemental
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Security Income claims under Title XVI of the Act by 42 U.S.C. § 1383(c)(3) -- provides that
such review may be had “by a civil action commenced within sixty days after the mailing to
[claimant] of notice of such decision or within such further time as the Commissioner may
allow.” The final decision of the SSA on plaintiff’s most recent benefits application was
rendered on October 26, 2011, when the Appeals Council denied plaintiff’s request for
review of the Administrative Law Judge’s decision. (Docket Entry No. 12-2 at 1) The SSA
by regulation has interpreted the date of “mailing” described in the statute to mean the date
that the claimant receives notice of the Appeals Council’s action, and has further directed
that the date of receipt of such notice “shall be presumed to be 5 days after the date of such
notice, unless there is a reasonable showing to the contrary.” 20 C.F.R. § 422.210(c).
There has been no showing here of any delay in plaintiff’s receipt of the
Appeals Council notice, and he is therefore presumed to have received the mailing of such
notice on October 31, 2011. Accordingly, he had until December 30, 2011 to file timely his
complaint in this court. Plaintiff’s complaint was not filed until January 12, 2012, thirteen
days outside of the sixty-day limitations period. Thus, the complaint is untimely and subject
to dismissal. The Appeals Council notice to plaintiff fully disclosed plaintiff’s appellate
rights, the applicable limitations period, instructions on how to secure additional time to
make the appropriate filing, and additional resources from which plaintiff could obtain
answers to any questions he may have had. (Docket Entry No. 12-2) Accordingly, there
would not appear to be any call for equitable tolling in this case. See, e.g., Cook v. Comm’r
of Soc. Sec., 480 F.3d 432, 437 (6th Cir. 2007). It is therefore concluded that plaintiff’s
complaint against the SSA should be dismissed.
As to Robert S. Brandt, named as a defendant in plaintiff’s complaint but
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evidently not served with process, it appears that the alleged wrongdoing attributed to this
individual occurred in 1995 and before, some seventeen years ago. The complaint against
him could therefore not be said to state a claim on which relief may be granted, and is
subject to dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii).1

III. Recommendation
In light of the foregoing, the Magistrate Judge recommends that defendant’s
motion to dismiss plaintiff’s complaint be GRANTED.
Any party has fourteen (14) days from receipt of this Report and
Recommendation in which to file any written objections to it with the District Court. Any
party opposing said objections shall have fourteen (14) days from receipt of any objections
filed in which to file any responses to said objections. Failure to file specific objections
within fourteen (14) days of receipt of this Report and Recommendation can constitute a
waiver of further appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 (1985);
Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004)(en banc).

ENTERED this 7th day of May, 2012.

______________
s/ John S. Bryant
JOHN S. BRYANT
UNITED STATES MAGISTRATE JUDGE

1

Section 1915, governing proceedings in forma pauperis, provides at subsection (e)(2)
that “[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the
court shall dismiss the case at any time if the court determines that ... the action ... fails to
state a claim on which relief may be granted[.]”
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