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Carter v. Berryhill

United States District Court, S.D. West Virginia, Charleston Division

October 5, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         In this civil action, Plaintiff Kenneth Eugene Carter seeks judicial review of the nonpayment of his retroactive Supplemental Security Income (“SSI”) benefits. Pending is Defendant's Motion to Dismiss. (ECF No. 17.)

         By standing order entered January 5, 2016, this action was referred to United States Magistrate Judge Omar J. Aboulhosn for entry of proposed findings and a recommendation for disposition (“PF&R”). Magistrate Judge Aboulhosn issued his PF&R on January 6, 2017, recommending the Court grant Defendant's Motion to Dismiss and dismiss Plaintiff's Complaint for failure to exhaust administrative remedies. Plaintiff filed timely objections on January 23, 2017.

         I. BACKGROUND

         Plaintiff is a West Virginia inmate incarcerated at Mount Olive Correctional Complex in Mount Olive, West Virginia. He has been incarcerated since at least May 2012 when he was convicted by jury verdict of first-degree murder. See State v. Carter, 750 S.E.2d 650, 652 ( W.Va. 2013) (per curiam).

         Plaintiff obtained SSI benefits while the criminal proceedings were ongoing. On April 2, 2012, an administrative law judge (“ALJ”) issued a favorable decision finding Plaintiff disabled beginning on July 26, 2009. (Compl., ECF No. 2 at 4.) On April 25, 2012, the Social Security Administration (“SSA”) mailed a Notice of Award letter to Plaintiff, informing him that he was owed retroactive benefits in the amount of $10, 784.16. (Id. at 5.) Though Plaintiff appears to have been on pretrial detention at the time, the SSA neglected to inform him that he would not be eligible to receive any retroactive award of benefits while incarcerated. See 42 U.S.C. § 1383(b)(7)(A)(i).[1]

         Plaintiff filed this action on July 23, 2015 to seek payment of his retroactive SSI benefits. After being served on August 12, 2016, Defendant moved to dismiss on November 2, 2016. Defendant alleged that Plaintiff had failed to exhaust his administrative remedies and was thus precluded from seeking judicial review pursuant to 42 U.S.C. § 405(g). Meanwhile, also on August 12, 2016, Plaintiff served a “Petitioner for Execution Judgment Payment Owed” on the SSA, again seeking his retroactive benefits award. On September 19, 2016, the SSA responded with an official notice that the agency could not issue the award while Plaintiff remains in prison. Plaintiff was also informed that he had 60 days-until November 23, 2016-to request reconsideration review.

         Plaintiff requested a reconsideration on November 10, 2016. (Pl. Response to Mot. to Dismiss Ex. Obj. Ex. 3, ECF No. 20-1.) The SSA affirmed its September decision and advised Plaintiff that he had 60 days to request a hearing before an administrative law judge. Plaintiff submitted a request for a hearing on December 19, 2016.[2] (Pl. Obj. Ex. A, ECF No. 23-1.)

         As stated, the Magistrate Judge entered his PF&R on January 6, 2017. The Magistrate Judge found that this Court is precluded from judicial review of this matter until the SSA issues a final decision. Plaintiff objects to this proposal and to the recommended dismissal of his case.


         “The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). The Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file timely objections constitutes a waiver of de novo review. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). In addition, this Court need not conduct a de novo review when a party “makes general and conclusory objections that do not direct the Court to a specific error in the Magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).


         Plaintiff's objections are difficult to understand. He appears to argue that the SSA ignored him until he filed the instant civil action. (Pl.'s Obj. at 2.) He also contends that the continued withholding of his retroactive SSI benefits constitutes a violation of Plaintiff's constitutional rights. The Court has no evidence of any appeals Plaintiff made to the SSA prior to filing this action. Further, as explained below, the Court lacks jurisdiction to review Plaintiff's challenge to the SSA's decision.

         Section 405(g) governs federal judicial review of claims arising under the Social Security Act. Under that provision, an individual may seek judicial review of the final decision of the Commissioner of Social Security within sixty days of notice of the decision. 42 U.S.C. § 405(g). “No findings of fact or decision of the Commission of Social Security shall be reviewed by any person, tribunal, or governmental agency” except as provided by § 405. § ...

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