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Alford v. Berryhill

United States District Court, D. New Mexico

March 15, 2017

JAMES BEDFORD ALFORD, Plaintiff,
v.
NANCY A BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER is before the Court on Defendant's Motion to Dismiss (Doc. 31), filed January 13, 2017. Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73(b), the parties have consented to have me serve as the presiding judge and enter final judgment. See Docs. 4, 11 & 12. Having considered the submissions of the parties and the relevant law, the Court will grant the Motion.

         I. FACTS AND PROCEDURAL BACKGROUND

         Plaintiff applied for Title II disability benefits on September 22, 2015. Doc. 31-1 at 2. Plaintiff's application for benefits was denied initially on December 1, 2015, and upon reconsideration on February 9, 2016. Id.; see also Doc. 20 at 23. Plaintiff then filed a request for a hearing before an Administrative Law Judge (“ALJ”) on April 12, 2016. Doc. 31-1 at 2. Before there was a ruling on his request for a hearing before an ALJ, Plaintiff initiated this federal court action on July 8, 2016. See Doc. 1.

         In the original Complaint, Plaintiff alleged “gross negligence (manifest)” on the part of the Social Security Administration. See Id. at 3. Plaintiff later filed an Amended Complaint on September 21, 2016, this time naming as an additional Defendant Shannon Hagerty, an agency employee, and alleging “willful negligence, operating under false pretenses and deceptive practices” on her part and that of the agency. See Doc. 16 at 7-9.

         The Court dismissed the Amended Complaint without prejudice on October 5, 2016, finding that Plaintiff failed to satisfy the administrative exhaustion requirements of the Federal Tort Claims Act. See Doc. 19 at 2. Construing the pro se Amended Complaint liberally as is required, the Court further determined that it asserted a claim for denial of Social Security benefits, but that Plaintiff failed to allege exhaustion of his administrative remedies as required by the Social Security Act. See Id. at 3. The Court explained that the “Social Security Act permits judicial review of a decision by the Commissioner only if the decision is a final decision made after a hearing.” See 42 U.S.C. § 405(g). Thus, the Amended Complaint was dismissed because it was devoid of allegations as to exhaustion of administrative remedies regarding denial of benefits.

         Plaintiff then filed a Second Amended Complaint on October 25, 2016. See Doc. 20. While he still alleges negligence, Plaintiff makes no mention of the Federal Tort Claims Act or any attempt to exhaust remedies for such a claim. The Court therefore considers that claim abandoned. As to a denial of benefits, Plaintiff now states that he “has completed four phases of application process thru. (sic) Appeals Counsel (sic), they do nothing, they know I am homeless, wholly disabled.” Id. at 2. Again liberally construing these new allegations, this Court determined that

[i]nsofar as Plaintiff appears to seek an appeal [of] the Commissioner's denial of disability benefits, Plaintiff has now met that burden of showing jurisdiction over that claim. Specifically, the Social Security Act permits judicial review of a decision by the Commissioner only if the decision is a final decision made after a hearing. See 42 U.S.C. § 405(g). To have a final decision after hearing, a claimant must have exhausted his administrative remedies by completing each step of the administrative review process: (i) an initial determination; (ii) a reconsideration of the initial determination; (iii) a hearing by an administrative law judge; and (iv) a review by the Appeals Council. See Griffin v. Astrue, 300 F.App'x 615, 616-617 (10th Cir. 2008). The Second Amended Complaint, when construed liberally as the Court must with a pro se litigant, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), adequately alleges exhaustion of administrative remedies. See Doc. 20 ¶ 5 ("Plaintiff has completed four phases of application process thru Appeals Counsel [sic]."). On the other hand, Plaintiff fails to state any other viable claims over which this Court would have jurisdiction for the reasons previously stated in my Order of October 5, 2016. See Doc. 19.

         Doc. 21 at 1-2. The Court accordingly ordered the United States Marshal to serve the Second Amended Complaint on the United States Attorney, the Attorney General, and the Office of the General Counsel, in accordance with Fed.R.Civ.P. 4(c)(3). Id. at 3. Defendant did not answer, but instead filed the present Motion to Dismiss. Doc. 16.

         II. ANALYSIS

         A party may move the Court to dismiss a case for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).. Moreover,

[w]hen making a rule 12(b)(1) motion, a party may go beyond the allegations in the complaint to challenge the facts upon which jurisdiction depends, and may do so by relying on affidavits or other evidence properly before the court. In those instances where the parties go beyond the pleadings, a court's reference to evidence outside the pleadings does not necessarily convert the motion to a rule 56 motion for summary judgment.

Begay v. United States, 188 F.Supp.3d 1047, 1070 (D.N.M. 2016) (citing to See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.1995) (Brorby, J.); Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995) (Baldock, J.). Here, both Plaintiff and Defendant have submitted evidence that is relevant for the Court's consideration on the instant motion to dismiss for lack of subject matter jurisdiction.

         Again, a federal court has jurisdiction to review only final decisions of the Commissioner of Social Security made after a hearing. 42 U.S.C. § 405(g); 42 U.S.C. § 405(h); Califano v. Sanders, 430 U.S. 99 (1977).

         The administrative review process consists of several steps, which usually must be requested within certain time ...


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