United States District Court, E.D. North Carolina, Southern Division
TONY F. DRAUGHON, Plaintiff/Claimant,
SOCIAL SECURITY ADMINISTRATION, Defendant.
MEMORANDUM AND RECOMMENDATION
B. JONES JR. UNITED STATES MAGISTRATE JUDGE
matter is before the court on Defendant's Motion to
Dismiss [DE-15] for failure to state a claim upon which
relief can be granted. Claimant responded to Defendant's
motion [DE-18], and the time for filing a reply has expired.
Accordingly, the pending motions are ripe for adjudication.
For the following reasons, the court recommends that
Defendant's motion to dismiss be allowed.
STATEMENT OF THE CASE
August 28, 2017, Claimant initiated this action against
Defendant, alleging that he was denied "an appeal to
have new evidence reviewed to obtain Social Security
benefits." Compl. [DE-1] at 2. On January 10, 2018, in
lieu of filing an answer to the complaint, Defendant filed
the instant motion to dismiss [DE-15], and Claimant responded
on January 24, 2018 [DE-18].
filed an application for supplemental security benefits
("SSI") on September 18, 2013, alleging disability
beginning July 20, 2013. ALJ Decision [DE-16-1] at 8. His
claim was allowed on November 13, 2015, and he was awarded
$488.67 in monthly payments, as well as $13, 510.11 in back
payments. Chung Decl. [DE-16-1] at 2-3. On December 2, 2015,
Claimant filed a request for reconsideration of the
determination of his monthly benefit amount, which was denied
on December 28, 2015. Id. at 3. Plaintiff filed a
request for a hearing on January 25, 2016, and an unfavorable
hearing decision was issued by an Administrative Law Judge
("ALJ") on June 7, 2017. Id. On July 11,
2017, Claimant filed a Request for Review of Hearing
Decision, and the request is still pending before the Appeals
STANDARD OF REVIEW
does not specify under what provision of the Federal Rules of
Civil Procedure it seeks to dismiss Claimant's claim.
However, based on Defendant's reliance on 42 U.S.C.
§ 405(g), the provision conferring jurisdiction to the
federal courts upon the exhaustion of the administrative
process, the court presumes it intends to pursue dismissal
under Rule 12(b)(1). A Rule 12(b)(1) motion challenges the
court's subject matter jurisdiction, and the plaintiff
bears the burden of proving that federal jurisdiction exists
when challenged by a defendant. See McNutt v. Gen. Motors
Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v.
Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). "Such a
motion may attack the existence of subject matter
jurisdiction in fact, apart from the complaint."
Cape Fear River Watch, Inc. v. Duke Energy Progress,
Inc., No. 7:13-CV-200-FL, 2014 WL 2573052, at *5 (E.D.
N.C. 2014) (citing Adams, 697 F.2d at 1219). In that
instance, "the district court is to regard the
pleadings' allegations as mere evidence on the issue, and
may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment."
Richmond, Fredericksburg & Potomac R.R. Co. v. United
States, 945 F.2d 765, 768 (4th Cir. 1991). The standard
of review, however, is the same as with a motion for summary
judgment. Thus, "the nonmoving party must set forth
specific facts beyond the pleadings to show that a genuine
issue of material fact exists. The moving party should
prevail only if the material jurisdictional facts are not in
dispute and the moving party is entitled to prevail as a
matter of law." Id. (internal citations
has moved to dismiss Claimant's complaint for failure to
state a claim upon which relief can be granted on the basis
that Plaintiff has failed to exhaust his administrative
remedies in accordance with 42 U.S.C. § 405(g), the
statute governing the social security benefits appeal
process. This court agrees.
order for the court to exercise jurisdiction over a decision
of the Commissioner, that decision must be considered the
Commissioner's "final decision." See
42 U.S.C. § 405(g)("Any individual, after any
final decision of the Commissioner . .. made after a
hearing . . . may obtain a review of such decision by a civil
action .. . .") (emphasis added); see also Mathews
v. Eldridge, 424 U.S. 319, 327 (1976) (explaining
"the only avenue for judicial review [of the denial of
social security benefits] ¶ 42 U.S.C. § 405(g),
which requires exhaustion of the administrative remedies
provided under the Social Security Act as a jurisdiction
prerequisite"). To obtain a judicially reviewable
"final decision" regarding entitlement to SSI, the
claimant must complete an administrative process. 20 C.F.R.
§ 416.1400(a); see generally Califano v.
Sanders, 430 U.S. 99, 101 (1977) (articulating general
procedures). The administrative process consists of four
steps: (1) initial determination, (2) reconsideration, (3)
hearing before an administrative law judge ("ALJ"),
and (4) Appeals Council review. Id. §
4l6.l4OO(a)(l-4). Proceeding through these stages exhausts
the claimant's administrative remedies. Only upon
completion of these steps may the claimant then seek judicial
review by filing an action in a federal district court.
Id. § 416.1400(a)(5). Throughout the
administrative review process, the onus is on the claimant to
request the next administrative step. Id. §
the undisputed evidence before the court shows that Plaintiff
has initiated the administrative review process before the
SSA, but the process is not yet completed. In particular,
exhibits submitted by Defendant indicate the first three
steps of the administrative process have been completed.
Chung Decl. [DE-16-1] ¶ 3(a) (stating after
Claimant's claims were granted initially, Claimant filed
a request for reconsideration, which was subsequently denied,
and then Claimant timely sought a hearing before the ALJ).
Claimant also timely requested a review of the ALJ's
decision by the Appeals Council. Id. ¶ 3(b).
However, Claimant's request is currently pending before
the Appeals Council, and therefore, a judicially reviewable
final decision has not yet been rendered. Id; see
also 20 C.F.R. § 416.1481 (explaining a claimant
may file an action in Federal district court within 60 days
after the date he receives either a notice from the Appeals
Council denying a request for review or a decision issued by
the Appeals Council). Accordingly, Claimant has failed to
carry his burden in demonstrating that the court has subject
matter jurisdiction pursuant to 42 U.S.C. § 405(g).
See Mathews, 424 U.S. at 327 (holding that the
exhaustion of administrative remedies provided for by the
Social Security Act is a "jurisdictional
prerequisite" for judicial review by a district court).
failure to exhaust administrative remedies should not be
excused in this case. See Bowen v. City of New York,
476 U.S. 467, 481-85 (1986). Such a failure may be excused
when (1) the claim is collateral to the claim for benefits;
(2) the claimant would be irreparably harmed; and (3) relief
is consistent with the policies underlying the exhaustion
requirement. Hyatt v. Heckler, 807 F.2d 376, 378
(4th Cir. 1986) (citing Bowen, 476 U.S. at 481-85).
A failure to exhaust administrative remedies may also be
excused where "the plaintiff asserts a
'colorable' constitutional claim that is
'collateral' to the merits." Varandani v.
Bowen, 824 F.2d 307, 310 (4th Cir. 1987) (citing
Mathews, 424 U.S. at 330-31). Here, Claimant argued
the case should not be dismissed because he felt his
"case has been mishandled through the Fayetteville, NC
office and the Eastern District office in Raleigh, NC"
and that he requests "the opportunity to
i show that pertinent evidence that would
have benefitted [his] case was not given proper
consideration." PL's Opp'n [DE-18]. This is
insufficient and Claimant has made no allegations from which
the court may conclude an exception to the exhaustion
requirement applies. The claim is not collateral to, but
directly challenges the benefit award, and Claimant will have
an opportunity to challenge the Commissioner's decision
once it is final. See 42 U.S.C. § 405(g).
Finally, Claimant has not alleged a constitutional claim.
Accordingly, it is recommended that Claimant's case be
dismissed for failure to exhaust the administrative process
as required by 42 U.S.C. § 405(g).