Wortham v. Commissioner, SSA
MEMORANDUM OPINION AND ORDER. Pltf's constructive Motion to Reopen 17 is DENIED. Signed by Judge Leonard Davis on 09/28/11. cc:pltf 9-29-11(mll, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
COMMISSIONER, SOCIAL SECURITY
CIVIL ACTION NO. 6:1cv591
MEMORANDUM OPINION AND ORDER
ON PLAINTIFF’S MOTION TO REOPEN
On December 18, 2001, Plaintiff Michael Wortham, at that time proceeding pro se and in
forma pauperis, initiated this civil action pursuant to the Social Security Act (The Act), Section
205(g) for judicial review of the Commissioner’s denial of Plaintiff’s application for Social Security
benefits. It was originally assigned to the Honorable William M. Steger, United States District
Judge. Pursuant to 28 U.S.C. § 636(b), the case was referred to a United States Magistrate Judge
of this District for findings of fact, conclusions of law, and recommendations for the disposition of
Plaintiff’s original complaint, which was labeled a “Complaint” on page one and an
“Amended Complaint” at page two, alleged in its entirety:
Social Security Administration denied my right to appear in person the hearing by
Administrative Law Judge.
Social Security Administration denied my right to review file before the date of the
Complaint at 2 (as in original). Otherwise, the complaint contained only a one-page preprinted form
with basic identifying information filled in, but no information about the nature or details of
Plaintiff’s claim to the Administration.
On April 8, 2002, the Commissioner filed a Motion to Dismiss (docket entry #13) for
Plaintiff’s failure to exhaust his administrative remedies prior to filing his lawsuit.
Commissioner asserted that Plaintiff had not completed the steps necessary under 42 U.S.C. § 405(g)
and the supporting Social Security regulations to confer jurisdiction on this Court. Specifically, the
Commissioner asserted that Plaintiff had not appeared at an administrative hearing and that no final
decision had issued in this matter to serve as the jurisdictional basis for review by the federal court.
The Commissioner attached a declaration to the motion by Olga C. Kelley, Chief of the Court Case
Preparation and Review Branch 2, Officer of Hearings and Appeals. Ms. Kelley declared under
penalty of perjury, and submitted authenticated documents showing, that Plaintiff had filed his
application for supplemental security income on February 26, 2001, which was denied initially and
on reconsideration. Plaintiff submitted a request for hearing on August 28, 2001, but then filed his
civil action in this Court on December 18, 2001, before any administrative hearing was held or any
decision issued within the Social Security Administration. In fact, as it developed, no hearing was
ever held and no decision ever issued, though the affidavit is silent as to the reasons why.
Nonetheless, the declaration makes clear that Plaintiff filed his federal complaint without a final
decision by the Commissioner. Plaintiff never filed a response to the Commissioner’s motion.
Therefore, on July 2, 2002, the assigned Magistrate Judge, having reviewed the case, issued
a Report and Recommendation (“R&R”) that the Plaintiff’s complaint be dismissed without
prejudice for failure to exhaust his administrative remedies. See docket entry #14. Plaintiff did not
file any objections to the R&R or otherwise contact the Court. On July 18, 2002, Judge Steger
adopted the R&R and dismissed Plaintiff’s complaint without prejudice and entered Final Judgment
on the dismissal. See docket entries #15, 16.
On August 23, 2011, over nine years after final judgment, Plaintiff filed a brief pleading
entitled “Claim for Supplemental Security Income,” which the Court construes as a letter Motion to
Reopen his original claim in this case. See docket entry #17. The motion is extremely brief, just as
the original complaint in this case, and states in its entirety:
Requesting Federal Court review for my S.S.I. claim.
Unable to work in pain.
Jurisdiction and history are false from the Administrative Law Judge James W.
Motion at 1.
However, even crediting the cursory allegations of the motion, a federal court’s jurisdiction
for judicial review of matters falling under the Social Security Act is limited to the power established
in 42 U.S.C. § 405(g):
Under § 405(g), an individual may obtain judicial review of a “final decision of the Secretary
made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The “final decision”
requirement has two elements: a non-waivable requirement that the claim be first presented
to the Secretary and a waivable requirement that the administrative remedies prescribed by
the Secretary be exhausted.
See Citadel Healthcare Servs. Inc. v. Sevelius, 2010 WL 5101389, at *4 (N.D. Tex. Dec. 8, 2010)
(in context of Title XVIII (Medicare) of the Social Security Act) (citing Bowen v. City of New York,
476 U.S. 467, 483, 106 S. Ct. 2022, 90 L. Ed. 2d 462 (1986); Mathews v. Eldridge, 424 U.S. 319,
328, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)). As to the prescribed administrative remedies, “[a]
claimant is required to complete a four-step administrative review process in order to obtain a final
decision capable of judicial review: (1) an initial determination; (2) reconsideration; (3)
administrative hearing; and (4) appeals council review.” Polonczyk v. U.S. Social Sec. Disability,
2011 WL 1356924, at *2 (S.D. Miss. Apr. 11, 2011) (citing 20 C.F.R. §§ 404.900, 416.1400).
“Thus, a district court only has jurisdiction to review an SSA action where the claimant has
exhausted [her] administrative remedies.” Id. (citing Muse v. Sullivan, 925 F.2d 785, 791 (5th Cir.
1995) (per curiam). Further, regarding waiver of the administrative remedies:
The exhaustion requirement may either be waived by the Secretary or, in exceptional cases,
by the courts. Eldridge, 424 U.S. at 330. The Supreme Court has approved three factors to
consider in waiving the exhaustion requirement: (1) whether a claim is collateral to a demand
for benefits, (2) whether exhaustion would be futile, and (3) whether the harm suffered
pending exhaustion would be irreparable.
Citadel Healthcare Servs. Inc, 2010 WL 5101389, at *4 (further citing City of New York v. Heckler,
742 F.2d 729, 736 (2d Cir. 1984)).
Although a “dismissal without prejudice” leaves open the potential for a plaintiff to seek to
reopen a case closed in such a manner, there is nothing in Plaintiff’s instant motion to change the
decision to dismiss this action and enter final judgment. It is apparent from Ms. Kelley’s declaration
that Plaintiff completed the first two steps in the process: an initial determination of his claim and
a reconsideration of it. However, he does not even offer an unsupported allegation that he has
completed the remainder administrative process and obtained a final decision. Further, he does not
argue that any error was made, except for his second allegation that “[j]urisdiction and history are
false” from an Administrative Law Judge. That statement alone does not show that any hearing was
held or decision issued. Furthermore, there is nothing in Plaintiff’s motion to suggest any basis for
this Court to waive the exhaustion requirement under the three factors above. Heckler, 742 F.2d
For these reasons, it is hereby
ORDERED that Plaintiff’s constructive Motion to Reopen (docket entry #17) is DENIED.
So ORDERED and SIGNED this 28th day of September, 2011.
UNITED STATES DISTRICT JUDGE
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