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Wills v. Berryhill

United States District Court, N.D. Mississippi, Greenville Division

July 26, 2019

JEREMY WILLS PLAINTIFF
v.
NANCY A. BERRYHILL[1], ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION DEFENDANT

          REPORT AND RECOMMENDATIONS

          JANE M. VIRDEN UNITED STATES MAGISTRATE JUDGE.

         Pending before the Court is the Commissioner of the Social Security Administration's Motion to Dismiss [7] filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The matter has been referred to the undersigned United States Magistrate Judge for issuance of a report and recommendations. And, having duly considered the motion, supporting memorandum, the record, and the applicable law, the undersigned recommends the motion be granted only in part and this action be dismissed for lack of subject-matter jurisdiction.

         I. Background

         On June 5, 2019, the Commissioner filed the instant motion to dismiss [7] the Complaint pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds that (1) dismissal of a hearing request is not reviewable under 42 U.S.C. § 405(g), and (2) Plaintiff failed to exhaust administrative remedies before filing the instant Complaint for judicial review of alleged “final decision [of the Commissioner] denying plaintiff's claim, ” see Compl., ECF No. 1. The Commissioner seeks dismissal of this action with prejudice for failure to state a claim upon which relief may be granted. Def. Br. at 6, ECF No. 8. Plaintiff, who is represented by counsel, has not responded to the motion.

         II. Facts

         According to documents submitted by the Commissioner in support of his motion, Plaintiff was found disabled and entitled to benefits under Titles II (disability insurance benefits) and XVI (supplemental security income) by an administrative decision dated February 17, 2009. See Declaration of Cristina Prelle[2] (hereinafter “Declaration”) at 2-3, Ex. 1[3]. Plaintiff was subsequently notified-by undated correspondence-that the Social Security Administration (hereinafter sometimes “the agency”) had determined that Plaintiff was no longer disabled as of May 2016, and that his last disability check would be issued in July 2016. See Declaration at 3, Ex. 2. Plaintiff requested reconsideration of this initial determination on September 7, 2016. See Declaration at 3, Ex. 3.

         By Notice of Reconsideration dated April 3, 2017, Plaintiff was notified that his claim had been denied by a disability hearing officer. See Declaration at 3, Ex. 4. The disability hearing officer's decision noted that Plaintiff did not appear for a scheduled examination and the scheduled hearing; that the evidence revealed Plaintiff's physical impairments were currently “non-severe with no significant residuals”; that his mental impairments could not be “adequately assessed due to insufficient evidence due to a failure to cooperate”; and that Plaintiff was deemed “not disabled.” Plaintiff was notified he had sixty days to appeal in writing. See Ex. 4. He appealed this reconsideration decision on May 26, 2017. See Declaration at 3, Ex. 5.

         The agency sent Plaintiff a Notice of Hearing, dated December 21, 2017, scheduling a hearing for March 14, 2018. See Declaration at 3, Ex. 6 at 1-13. However, the scheduled hearing was postponed by notice dated January 29, 2018. See Declaration at 3, Ex. 6 at 14.

         The agency sent Plaintiff a new Notice of Hearing, dated February 14, 2018, that scheduled a hearing for May 3, 2018. See Declaration at 3, Ex. 6 at 15-27. The agency sent Plaintiff a notice of hearing reminder dated April 19, 2018. See Declaration at 3, Ex. 6 at 28.

         Plaintiff's request for a hearing was dismissed by Administrative Law Judge (ALJ) Edwin Kerstine on May 16, 2018, because Plaintiff did not appear for the scheduled administrative hearing and the ALJ found there was no good cause for Plaintiff's failure to appear. See Declaration at 3, Ex. 7. ALJ Kerstine's decision noted the April 3, 2017, decision remained in effect. Ex. 7. The notice of the ALJ's decision stated Plaintiff had sixty days to file a written appeal. Id.

         By letter to the Office of Hearings Operations dated July 12, 2018, Plaintiff's attorney, Michael McHenry, requested that the dismissal of Plaintiff's claim be vacated and a new hearing scheduled because Plaintiff “was never provided [n]otice” that a hearing had been scheduled. See Declaration at 3-4, Ex. 8. By notice dated July 18, 2018, the Jackson, Mississippi Office of Hearings Operations notified Plaintiff that his request to vacate the Order of Dismissal could not be granted and that Plaintiff's appeal rights were set forth in the Oder of Dismissal. See Declaration at 4, Ex. 9.

         By letter to the Appeals Council dated July 12, 2018, Mr. McHenry indicated his desire to appeal the Notice of Dismissal and requested that the matter be remanded and set for a new hearing. See Declaration at 4, Ex. 10. By notice dated January 15, 2019, the Appeals Council denied Plaintiff's request for review of the ALJ's dismissal dated May 16, 2108. See Declaration at 4, Ex. 11.

         III. The Correct Standard for Dismissal

         As an initial matter, because the Commissioner adopts a standard for dismissal that does not apply under the circumstances of this case, the Court should ...


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