United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. Lungstrum, United States District Judge
case is before the court on the motion of the defendant,
Acting Commissioner of Social Security (hereinafter
Commissioner), to dismiss Plaintiff's complaint pursuant
to Fed.R.Civ.P. 12(b)(1) for lack of subject matter
jurisdiction. (Doc. 9) (hereinafter Comm'r Mot.).
Plaintiff, who appears pro se,  responded by
filing an “Appellant's Brief” (Doc. 10), and
a “Certificate of Interested Parties.” (Doc. 11).
The Commissioner's motion is now ripe for decision. The
court finds that it is without subject matter jurisdiction
and ORDERS that the Complaint shall be dismissed.
seeks judicial review of a decision of the Commissioner made
on December 18, 2017. (Doc. 1, p.5) (hereinafter Complaint);
see also (Doc. 1, Attach. 1). Plaintiff asserts in
his Complaint that the “Commissioner denied my previous
claim for disability benefits. The previous decision covered
the same issues as this action about my health on or before
September 2010.” (Complaint, p.3).
decision for which the plaintiff seeks judicial review is a
“Notice of Disapproved Claim, ” dated December
18, 2017. (Complaint, Attach. 1). The Commissioner argues
that there has been no final decision in this case as
required by 42 U.S.C. § 405(g), and consequently the
court is without jurisdiction to review the initial level
decision at issue in this case. (Comm'r Mot. 1-2).
with her Motion to Dismiss, the Commissioner filed the
“Declaration of Nancy Chung, ” the Acting Chief
of the Social Security's Court Case Preparation and
Review Branch 2, and Ms. Chung's Declaration includes
documents regarding the proceedings before the Commissioner.
(Comm'r Mot.) (Attach. 1). Those documents include the
Notice of Disapproved Claim issued at the initial level of
Plaintiff's application for benefits before the
Commissioner (Attach. 1, pp.5-7); the “Notice of
Decision - Unfavorable, ” issued in Plaintiff's
previous claim for disability benefits dated August 28, 2015
(Attach. 1, pp.8-33); and the “Judgment in a Civil
Action” issued by this court on August 2, 2016,
affirming the Commissioner's final decision on
Plaintiff's previous claim for disability benefits.
(Attach. 1, p.34). Ms. Chung asserts that Social Security
Administration records show that Plaintiff filed a new
application for disability benefits pursuant to Title II of
the Social Security Act on August 28, 2017 and that
application was denied at the initial level in the notice
dated December 18, 2017. (Attach. 1, pp.2-3). She asserts
that the “Notice of Disapproved Claim” informed
Plaintiff that his new application covered the same issues as
his prior application, which had been denied, and that denial
was affirmed by the United States District Court for the
District of Kansas. Id. at 3.
motion under Rule 12(b)(1) ‘may go beyond allegations
contained in the complaint and challenge the facts upon which
subject matter jurisdiction depends.'” Davis ex
rel. Davis v. United States, 343 F.3d 1282, 1295 (10th
Cir. 2003) (hereinafter Davis v. U.S.) (quoting
Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.
1995)). The court in Davis v. U.S. held that,
“When a party challenges the allegations supporting
subject-matter jurisdiction, the ‘court has wide
discretion to allow affidavits, other documents, and a
limited evidentiary hearing to resolve disputed
jurisdictional facts.' ‘In such instances, a
court's reference to evidence outside the pleadings does
not convert the motion [to dismiss] to a Rule 56 motion [for
summary judgment].'” Davis v. U.S., 343
F.3d at 1296 (quoting Holt, 46 F.3d at 1003)
(brackets in Davis v. U.S.). Therefore, the court
considers Ms. Chung's declaration and the documents
attached to it when deciding this motion.
sole basis for federal court jurisdiction in Social Security
cases arises under 42 U.S.C. § 405(g). Brandtner v.
Dep't of Health and Human Servs., 150 F.3d 1306,
(10th Cir. 1998) (citing Reed v. Heckler, 756 F.2d
799, 782 (10th Cir. 1985)). As explained in Reed, 42
U.S.C. § 405(h) bars federal question jurisdiction in
suits challenging denial of claimed Social Security benefits.
Reed, 756 F.2d at 782 (citing Weinberger v.
Salfi, 422 U.S. 749 (1975)). Therefore, 42 U.S.C. §
405(g) provides the only means of judicial review of such
claims. Mathews v. Eldridge, 424 U.S. 319, 327
(1976). In 1977, the Supreme Court further held that the
Administrative Procedures Act does not provide an implied
grant of subject-matter jurisdiction for review of the
actions of the Social Security Administration. Califano
v. Sanders, 430 U.S. 99, 107 (1977).
Social Security Act provides that federal courts have
jurisdiction to review “any final decision of the
Commissioner.” 42 U.S.C. § 405(g); see also §
405(h) (“No findings of fact or decision of the
Commissioner ... shall be reviewed by any person, tribunal,
or governmental agency except as herein provided.”).
Because the term “final decision” is not defined
in the statute, “its meaning is left to the
[Commissioner] to flesh out by regulation.”
Salfi, 422 U.S. at 766. A decision of the
Commissioner is not final unless the claimant first exhausts
his administrative remedies. 20 C.F.R. §§
404.900(a), 416.1400(a); see Marshall v. Shalala, 5
F.3d 453, 455 (10th Cir.1993); see also Califano,
430 U.S. at 102 (“The Act and regulations thus create
an orderly administrative mechanism, with district court
review of the final decision of the
Commissioner's “Notice of Disapproved Claim”
explained to Plaintiff that he had “the right to
appeal, ” and that his appeal was to be filed
“with any Social Security office” within sixty
days after he received the notice. (Complaint, Attach. 1,
p.2). Instead of filing an appeal with a Social Security
office, Plaintiff chose to file this action with the court.
Consequently, he failed to exhaust his administrative
remedies before the Social Security Administration.
claimant may be excused from the exhaustion requirement if he
states a colorable constitutional claim. Mathews,
424 U.S. at 330-32. Plaintiff has not alleged, and the court
sees no basis for a constitutional claim in this case.
Therefore the court is without subject matter jurisdiction in
this case, and it must be dismissed.
IS THEREFORE ORDERED that the Commissioner's
Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) (Doc. 9)
is GRANTED and this case is DISMISSED.