Freeman v. Astrue

Filing 9

ORDER GRANTING MOTION TO DISMISS OF DEFENDANT COMMISSIONER 8 . Signed by Judge James D. Todd on 3/6/13. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
REGINA FREEMAN,
Plaintiff,
VS.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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No. 12-2989-JDT

ORDER GRANTING MOTION TO DISMISS
OF DEFENDANT COMMISSIONER

Plaintiff, pro se, filed this action to obtain judicial review of Defendant
Commissioner's final decision denying her application for child’s supplemental security
income benefits under the Social Security Act (“Act”) on behalf of her son.

The

Commissioner has filed a motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules
of Civil Procedure on the ground that the court does not have subject matter jurisdiction
because Plaintiff has failed to exhaust her administrative remedies. Plaintiff has not
responded to the motion. For the reasons set forth below, the motion to dismiss is
GRANTED.
Plaintiff protectively filed an application for supplemental security income on behalf
of her son M.H., dated August 16, 2001, which was approved on August 16, 2001.1 On July

1

The declaration of Patrick J. Herbst from the Office of Disability Adjudication and Review (“ODAR”),
Social Security Administration, sets forth the procedural history in this matter [DE# 8-2].

14, 2005, Plaintiff was notified that M.H. was no longer disabled as of July 2005. Plaintiff
requested reconsideration of the determination, and the agency affirmed its determination on
December 5, 2006. On December 19, 2006, Plaintiff requested a hearing by an administrative
law judge (“ALJ”). The ALJ has not taken action with respect to Plaintiff’s hearing request.2
Sections 205(g) and (h) of the Act, 42 U.S.C. § 405(g) and (h), authorize judicial
review in cases arising under Title II of the Act. These provisions are the exclusive basis for
jurisdiction in cases arising under the Act. Section 405(g) provides:
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.
Section 405(h) provides:
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 subchapter.
Congress has explicitly stated that, in claims arising under the Act, judicial review is
permitted only in accordance with § 405(g) as limited by § 405(h). See e.g., Shalala v.
Illinois Council on Long Term Care, Inc., 529 U.S. 1, 8-13 (2000). “Absent a waiver,
sovereign immunity shields the Federal Government and its agencies from suit.” Federal
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The Commissioner acknowledges that there has been a significant delay in affording Plaintiff a hearing but
states that the matter has now been brought to the attention of the hearing office, and the file has been submitted to
the hearing office for further processing.

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Deposit Insurance Corp. v. Meyer, 510 U.S. 471, 475 (1994). And, “the terms of the United
States’ consent to be sued in any court define that court's jurisdiction to entertain the suit.”
Id. (brackets omitted) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). When
a right, such as the right to sue, is a creature of statute, and the statute provides a special
remedy, that remedy is exclusive. See United States v. Babcock, 250 U.S. 328, 331 (1919).
Accordingly, 42 U.S.C. § 405(g) and (h) are the exclusive bases for jurisdiction over cases
arising under the Act.
42 U.S.C. § 405(g) authorizes judicial review only after a claimant has exhausted
administrative remedies. Section 405(g) authorizes judicial review only of a “final decision
of the Commissioner of Social Security made after a hearing.” Weinberger v. Salfi, 422 U.S.
749, 763 (1975). The regulations delineate a four-step administrative review process that
must be followed before obtaining a judicially reviewable final decision. See 20 C.F.R. §
416.1400(a)(5) (2012) (“When you have completed the steps of the administrative review
process [including an initial determination, reconsideration, a hearing before an ALJ, and
Appeals Council review], we will have made our final decision”). Thus, a claimant obtains
a final decision only if she completes the administrative appeals process and receives either
(1) a decision by the Appeals Council, or (2) notice from the Appeals Council that it is
denying her request for review. See 20 C.F.R. §§ 416.1400(a), 416.1481, 422.210.
In the present case, Plaintiff has not received a hearing before an ALJ, and the
Appeals Council has not issued a decision or denied Plaintiff’s request for review.
Accordingly, Plaintiff has not received a “final decision” as defined in the regulations, and
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thus, she has failed to establish the statutory prerequisites necessary for judicial review.
Because Plaintiff did not exhaust administrative remedies and has not obtained a
judicially reviewable final decision, the complaint must be dismissed. The clerk is directed
to enter judgment accordingly.
IT IS SO ORDERED.

s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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