Carter v. Colvin
MEMORANDUM OPINION AND ORDER OVERRULING Plaintiff's 23 objections, ADOPTING the 22 Proposed Findings and Recommendation, and GRANTING Defendant's 17 Motion to Dismiss; Plaintiff's 2 Complaint is DISMISSED WITHOUT PREJUDICE; the Clerk is DIRECTED to remove this action from the Court's active docket. Signed by Judge Thomas E. Johnston on 10/5/2017. (cc: counsel of record; any unrepresented party) (kp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
KENNETH EUGENE CARTER,
CIVIL ACTION NO. 2:15-cv-11485
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
In this civil action, Plaintiff Kenneth Eugene Carter seeks judicial review of the
nonpayment of his retroactive Supplemental Security Income (“SSI”) benefits.
Defendant’s Motion to Dismiss. (ECF No. 17.)
By standing order entered January 5, 2016, this action was referred to United States
Magistrate Judge Omar J. Aboulhosn for entry of proposed findings and a recommendation for
Magistrate Judge Aboulhosn issued his PF&R on January 6, 2017,
recommending the Court grant Defendant’s Motion to Dismiss and dismiss Plaintiff’s Complaint
for failure to exhaust administrative remedies. Plaintiff filed timely objections on January 23,
Plaintiff is a West Virginia inmate incarcerated at Mount Olive Correctional Complex in
Mount Olive, West Virginia. He has been incarcerated since at least May 2012 when he was
convicted by jury verdict of first-degree murder. See State v. Carter, 750 S.E.2d 650, 652 (W.
Va. 2013) (per curiam).
Plaintiff obtained SSI benefits while the criminal proceedings were ongoing. On April 2,
2012, an administrative law judge (“ALJ”) issued a favorable decision finding Plaintiff disabled
beginning on July 26, 2009. (Compl., ECF No. 2 at 4.) On April 25, 2012, the Social Security
Administration (“SSA”) mailed a Notice of Award letter to Plaintiff, informing him that he was
owed retroactive benefits in the amount of $10,784.16. (Id. at 5.) Though Plaintiff appears to
have been on pretrial detention at the time, the SSA neglected to inform him that he would not be
eligible to receive any retroactive award of benefits while incarcerated.
See 42 U.S.C. §
Plaintiff filed this action on July 23, 2015 to seek payment of his retroactive SSI benefits.
After being served on August 12, 2016, Defendant moved to dismiss on November 2, 2016.
Defendant alleged that Plaintiff had failed to exhaust his administrative remedies and was thus
precluded from seeking judicial review pursuant to 42 U.S.C. § 405(g). Meanwhile, also on
August 12, 2016, Plaintiff served a “Petitioner for Execution Judgment Payment Owed” on the
SSA, again seeking his retroactive benefits award. On September 19, 2016, the SSA responded
The statute reads:
(7)(A) In the case of payment of less than the correct amount of benefits to or on behalf of
any individual, no payment shall be made to such individual pursuant to this subsection
during any period for which such individual-(i) is not an eligible individual or eligible spouse under section 1382(e)(1) of this title
because such individual is an inmate of a public institution that is a jail, prison, or other
penal institution or correctional facility the purpose of which is to confine individuals as
described in clause (ii) or (iii) of section 402(x)(1)(A) of this title . . .
until such person is no longer considered an ineligible individual or ineligible spouse under
section 1382(e)(1) or 1382(e)(4) of this title.
with an official notice that the agency could not issue the award while Plaintiff remains in prison.
Plaintiff was also informed that he had 60 days—until November 23, 2016—to request
Plaintiff requested a reconsideration on November 10, 2016. (Pl. Response to Mot. to
Dismiss Ex. Obj. Ex. 3, ECF No. 20-1.) The SSA affirmed its September decision and advised
Plaintiff that he had 60 days to request a hearing before an administrative law judge. Plaintiff
submitted a request for a hearing on December 19, 2016.2 (Pl. Obj. Ex. A, ECF No. 23-1.)
As stated, the Magistrate Judge entered his PF&R on January 6, 2017. The Magistrate
Judge found that this Court is precluded from judicial review of this matter until the SSA issues a
final decision. Plaintiff objects to this proposal and to the recommended dismissal of his case.
“The district judge must determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). The Court is not required to review,
under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as
to those portions of the findings or recommendation to which no objections are addressed. Thomas
v. Arn, 474 U.S. 140, 150 (1985). Failure to file timely objections constitutes a waiver of de novo
review. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989);
United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). In addition, this Court need not
conduct a de novo review when a party “makes general and conclusory objections that do not direct
Plaintiff submitted the documentation evidencing the SSA’s denial of his reconsideration request and his
request for a hearing in conjunction with his objections to the PF&R. As such, the Magistrate Judge did
not have access to these documents in drafting his recommendation.
the Court to a specific error in the Magistrate’s proposed findings and recommendations.” Orpiano
v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
Plaintiff’s objections are difficult to understand. He appears to argue that the SSA ignored
him until he filed the instant civil action. (Pl.’s Obj. at 2.) He also contends that the continued
withholding of his retroactive SSI benefits constitutes a violation of Plaintiff’s constitutional
rights. The Court has no evidence of any appeals Plaintiff made to the SSA prior to filing this
action. Further, as explained below, the Court lacks jurisdiction to review Plaintiff’s challenge to
the SSA’s decision.
Section 405(g) governs federal judicial review of claims arising under the Social Security
Act. Under that provision, an individual may seek judicial review of the final decision of the
Commissioner of Social Security within sixty days of notice of the decision. 42 U.S.C. § 405(g).
“No findings of fact or decision of the Commission of Social Security shall be reviewed by any
person, tribunal, or governmental agency” except as provided by § 405. § 405(h). Despite
Plaintiff’s claims of unfairness, the law is clear—the SSA’s final decision is a prerequisite to
It is similarly clear that the SSA had not issued a final decision on the matter of Plaintiff’s
right to retroactive benefits before he filed his Complaint. Under Social Security regulations, a
“final decision” is achieved through completion of a four-step administrative process. That
process requires (1) an initial determination; (2) reconsideration; (3) a hearing before an ALJ; and
(4) Appeals Council review. 20 C.F.R. § 416.1400(a). At the fourth step, the Appeals Council
may either deny the request for review, allowing the ALJ’s decision to stand as the final decision
of the SSA, or grant the request for review and issue its own decision. 20 C.F.R. § 404.981.
Only then may a claimant seek judicial review of the SSA’s final decision by filing an action in
federal district court. 20 C.F.R. § 422.210. Plaintiff had not initiated the administrative process
prior to filing this action, and based on the record before the Court, it appears the process still has
not proceeded beyond step two. The Court is compelled to dismiss this action because Plaintiff
had not obtained a judicially reviewable final decision.
Accordingly, the Court OVERRULES Plaintiff’s objections (ECF No. 23), ADOPTS the
PF&R (ECF No. 22), and GRANTS Defendant’s Motion to Dismiss, (ECF No. 17.) Plaintiff’s
Complaint is DISMISSED WITHOUT PREJUDICE.
(ECF No. 2.)
The Clerk is
DIRECTED to removed this action from the Court’s active docket.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
October 5, 2017
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