United States District Court, N.D. Mississippi, Greenville Division
REPORT AND RECOMMENDATIONS
M. VIRDEN UNITED STATES MAGISTRATE JUDGE.
before the Court is the Commissioner of the Social Security
Administration's Motion to Dismiss  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
5, 2019, the Commissioner filed the instant motion to dismiss
 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.
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 (hereinafter “Declaration”) at
2-3, Ex. 1. 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.
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.
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.
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.
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
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.
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.
The Correct Standard for Dismissal
initial matter, because the Commissioner adopts a standard
for dismissal that does not apply under the circumstances of
this case, the Court should ...