United States District Court, N.D. Georgia, Atlanta Division
FINAL REPORT AND RECOMMENDATION
Clay Fuller, United States Magistrate Judge
case is before the Court on Defendant's Motion To Dismiss
Or, In The Alternative, Motion For Summary Judgment. (Doc.
7). Because Plaintiff did not exhaust his administrative
remedies with the Social Security Administration before
filing this action, it is RECOMMENDED that
Defendant's motion to dismiss be
and Procedural Background
6, 2017 the Social Security Administration (SSA) issued
Plaintiff a Notice of Award informing him that it had found
that he became disabled on January 2, 2016 and that he was
entitled to monthly disability benefits beginning July 2016.
(Doc. 7-1 at 7). The decision also stated that “[t]he
date we found you disabled is different from the date you
gave us on the application” and informed Plaintiff,
“If you do not agree with this decision, you have the
right to appeal.” (Id. at 7, 9). The decision
explained that process as follows:
You have 60 days to ask for an appeal.
The 60 days start the day after you receive this letter. We
assume you received this letter 5 days after the date on it
unless you show us that you did not receive it within the
You must have a good reason if you wait more than 60 days to
ask for an appeal.
You can file an appeal with any Social Security office. You
must ask for an appeal in writing. Please use our
“Request for Reconsideration” form, SSA-561-U2.
You may go to our website at www.socialsecurity.gov/online/
to find the form. If you need help to fill out the form, we
can help you by phone or in person.
(Id. at 9). Plaintiff did not then ask for an appeal
at the administrative level or complete a Request for
Reconsideration form. (See Doc. 7-1 at 3). Instead,
Plaintiff filed a pro se complaint in this Court
seeking payment of benefits from the date he contends he
applied for benefits, i.e., November 31, 2009. (Doc. 1).
Defendant moved to dismiss Plaintiff's complaint, or in
the alternative for summary judgment, because Plaintiff did
not administratively exhaust his administrative remedies
prior to filing his judicial complaint. (Doc. 7). Plaintiff
has responded (Doc. 13) and with briefing complete, the
undersigned now considers the merits of Defendant's
courts may not review administrative decisions of the SSA
except as provided in 42 U.S.C. § 405(g).”
Anderson v. Comm'r of Soc. Sec., 544 Fed.Appx.
861, 861 (11th Cir. 2013) (unpublished decision). “A
social security claimant may obtain review under §
405(g) by filing a civil action in federal district court,
but only ‘after any final decision of the Commissioner
of Social Security made after a hearing.' ”
Id. (quoting 42 U.S.C. § 405(g)). “Thus,
to obtain review in federal court under § 405(g), a
social security claimant must have: (1) presented his claim
for benefits to the Commissioner; and (2) exhausted his
administrative remedies.” Id. (citing
Crayton v. Callahan, 120 F.3d 1217, 1220 (11th Cir.
1997)). “ ‘This means [the] claimant must have
completed each of the steps of the administrative review
process unless exhaustion has been waived.' ”
Id. at 861-62 (quoting Crayton, 120 F.3d at
1220); see also Weaver v. SSA, No.
1:12-CV-4488-WSD-JFK, 2013 U.S. Dist. LEXIS 176203, at *7
(N.D.Ga. Oct. 7, 2013) (“The term ‘final
decision' is not defined in the statutes, but the
regulations require that a Social Security claimant must
complete each step in the administrative review
process.”), adopted by 2013 U.S. Dist. LEXIS
175793 (N.D.Ga. Dec. 16, 2013). “The administrative
review process includes an initial determination,
reconsideration, a hearing before an ALJ, and review by the
Appeals Council.” Anderson, 544 Fed.Appx. at
862 (citing 20 C.F.R. § 404.900(a)(1)-(4)); see also
Weaver, 2013 U.S. Dist. LEXIS 176203, at *7.
Plaintiff has not shown that he asked for reconsideration of
the initial decision as instructed in the decision letter
(see Doc. 7-1 at 9), no reconsideration decision has
been issued, no hearing was held at the administrative level
before an administrative law judge (ALJ), and no review by
the Appeals Council has occurred. Plaintiff asserts in
response to Defendant's motion that he sought judicial
review because he was “told I had no other internal
options within Social Security regarding my issue when I
called Social Security Teleservices Center and spoke with a
representative in the Lakewood, OH call center.” (Doc.
13 at 1-2). But that assertion does not alter the fact that
he did not appeal the June 6, 2017 decision in writing and
pursue the required administrative procedures, through and
including a final hearing decision, prior to filing his
judicial appeal. This Court therefore lacks subject matter
jurisdiction and Plaintiff's action should be dismissed.
it is RECOMMENDED that Defendant's
motion to dismiss (Doc. 7) be GRANTED and
this case be DISMISSED. See, e.g.,
Anderson, 544 Fed.Appx. at 862 (finding that the
district court did not err in dismissing pro se
complaint seeking judicial review of SSA decision due to lack
of subject matter jurisdiction because “at the time
Anderson filed his complaint, the SSA had denied [his]
administrative claim initially and on reconsideration, but
had not yet acted on [his] request for an ALJ hearing”
and therefore “it is undisputed that the ALJ had not
yet held a hearing in Anderson's case, much less issued a
decision that the Appeals Council could review”);
Weaver v. SSA, No. 1:12-CV-4488-WSD-JFK, 2013 U.S.
Dist. LEXIS 175793, at *3 (N.D.Ga. Dec. 16, 2013) (finding
“no plain error in the Magistrate Judge's
recommendation that Plaintiff's failure to complete the
administrative review process deprives the Court of subject
matter jurisdiction over his claims” and dismissing
plaintiff's complaint for failure to exhaust his remedies
with SSA where “[t]here is no evidence in the record
that the Plaintiff filed a request for reconsideration or
otherwise requested a hearing before an administrative law
IS SO REPORTED ...