The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DEVYN HAMON SIMMONS,
Plaintiff,
v. Case No: 6:22-cv-1852-LHP
COMMISSIONER OF SOCIAL
SECURITY,
Defendant
ORDER1
This cause came on for consideration without oral argument on the following
motion filed herein:
MOTION: DEFENDANT’S OPPOSED MOTION TO DISMISS
(Doc. No. 13)
FILED: December 16, 2022
THEREON it is ORDERED that the motion is GRANTED.
1 The parties have consented to the exercise of jurisdiction by a United States
Magistrate Judge. See Doc. Nos. 8–10.
Devyn Hamon Simmons (“Claimant”), appearing pro se, instituted this action
against Defendant the Commissioner of Social Security (“the Commissioner”) by
complaint filed on October 12, 2022. Doc. No. 1. With the complaint, Claimant
submitted a letter from the Social Security Administration (“SSA”) regarding the
cessation of Claimant’s Supplemental Security Income (“SSI”) benefits, stating that
under the disability rules for adults, Claimant was no longer disabled as of
September 20, 2022. Doc. No. 1-1.
The Commissioner has filed an Opposed Motion to Dismiss, seeking
dismissal of the complaint for Claimant’s failure to exhaust administrative
remedies, and thus, for lack of subject matter jurisdiction. Doc. No. 13. With the
motion, the Commissioner submits the Declaration of Tracy Hunnicutt, a Program
Expert in the Center for Disability and Program Support of the SSA, as well as
several exhibits. Doc. Nos. 14, 14-1 through 14-7. And although labeled as
“opposed,” Claimant has not responded to the motion, and his time for doing so
has long since expired. See Local Rule 3.01(c). Accordingly, the Court deems the
motion to be unopposed in all respects. See id.
For the reasons argued in the Commissioner’s motion, Doc. No. 13, and given
the exhibits submitted in support, Doc. No. 14,2 the motion is due to be granted.
“The Social Security Act limits a district court’s jurisdiction over claims
related to Social Security benefits determinations to the review of a ‘final decision’
of the Commissioner. Micklas v. Doe, 450 F. App’x 856, 857 (11th Cir. 2012) (citing
42 U.S.C. § 405(g)). “To obtain review in federal court under Section 405(g), a
Social Security claimant must have (1) presented a claim for benefits to the
Commissioner and (2) exhausted administrative remedies.” Id. (citing Crayton v.
Callahan, 120 F.3d 1217, 1220 (11th Cir. 1997)). “This means claimant must have
completed each of the steps of the administrative review process unless exhaustion
has been waived.” Crayton, 120 F.3d at 1220.3
The administrative review process includes receipt of an initial
determination, 20 C.F.R. § 416.1402, reconsideration, 20 C.F.R. § 416.1407, a hearing
2 “[W]here a defendant raises a factual attack on subject matter jurisdiction, the
district court may consider extrinsic evidence such as deposition testimony and affidavits.”
Collier v. Comm’r of Soc. Sec., 504 F. App’x 835, 837 (11th Cir. 2013) (quoting Carmichael v.
Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009)).
3 Waiver is not at issue here, but instead, the Commissioner has submitted exhibits
demonstrating that Claimant has not exhausted his administrative remedies. See Doc. No.
14. Moreover, although”[e]xhaustion may be excused when the only contested issue is
constitutional, collateral to the consideration of claimant’s claim, and its resolution
therefore falls outside the agency’s authority,” see Crayton, 120 F.3d at 1222, Plaintiff makes
no such constitutional claim here. See Doc. No. 1.
before an Administrative Law Judge, 20 C.F.R. § 416.1429, and review by the
Appeals Council, 20 C.F.R. § 416.1467. See also 20 C.F.R. § 416.1400. Only after
exhaustion of these processes may a claimant seek judicial review. See 20 C.F.R. §
422.210(a) (“General. A claimant may obtain judicial review of a decision by an
administrative law judge or administrative appeals judge if the Appeals Council
has denied the claimant’s request for review, or of a decision by the Appeals Council
when that is the final decision of the Commissioner.”). See also 20 C.F.R. § 416.1481.
Here, the Commissioner submits evidence demonstrating that although
Claimant was awarded SSI benefits as a child, the SSA issued to Claimant a Notice
of Disability Cessation, notifying Claimant that under the disability rules for adults,
Claimant was no longer disabled as of September 20, 2022. Doc. No. 14 ¶¶ 4–7;
Doc. Nos. 14-1, 14-2, 14-3, 14-4. The Notice of Disability Cessation states that if
Claimant disagreed with the decision, he had the right to appeal within 60 days, by
completing a “Request for Reconsideration—Disability Cessation.” Doc. No. 14-4,
at 2. Claimant submitted a request for reconsideration dated October 11, 2022.
Doc. No. 14 ¶ 8; Doc. No. 14-5. Claimant also filed a complaint in this Court on
October 12, 2022. Doc. No. 1. The Commissioner submits evidence that the
motion for reconsideration was still pending as of December 2, 2022, which was
after Claimant filed the complaint. Doc. No. 14 ¶ 11.4 And even if the SSA has
issued a ruling on the motion for reconsideration since that time, Claimant would
still have to exhaust the remaining steps of the administrative process prior to
seeking judicial review. See 20 C.F.R. §§ 416.1400, 416.1402, 416.1407, 416.1429,
416.1467, 416.1481. See also Lopez v. Gumushyan, No. 16-CV-07236-LB, 2017 WL
2118313, at *3 (N.D. Cal. May 16, 2017) (“The cessation of disability benefits
following a continuing disability review is an initial determination. Before
appealing to this court, the plaintiff must exhaust administrative remedies by
seeking a reconsideration decision, then an ALJ decision after a hearing, and then a
final review by the Appeals Council.” (citations omitted)).
Accordingly, because Claimant has not shown exhaustion of administrative
remedies prior to filing the complaint in this Court or that a final decision of the
Commissioner has issued, the Court lacks subject matter jurisdiction, and the case
is due to be dismissed without prejudice. See, e.g., Phillips v. Colvin, No. 2:15-cv-
02137, 2015 WL 5836995, at *2 (W.D. Ark. Oct. 5, 2015) (dismissing complaint for
lack of subject matter jurisdiction because a “Notice of Disability Cessation”
4 On October 22, 2022, the Commissioner also requested additional documents in
order to process the request for reconsideration, but it does not appear that a response from
Claimant was received, and the request for reconsideration is proceeding without them.
Doc. No. 14 ¶¶ 9–10; Doc. Nos. 14-6; 14-7.
constituted the SSA’s initial determination, the claimant did not exhaust the
remaining administrative review requirements, and the Commissioner had not
issued a final decision subject to judicial review); Green-Major v. Astrue, No. CV 3:10-
1459-JRM, 2011 WL 13388561, at *4 (D.S.C. Sept. 15, 2011) (dismissing social security
case for failure to exhaust administrative remedies and thus for lack of subject
matter jurisdiction where the claimant did not complete the four-step
administrative review process with regard to the cessation of her SSI payments).
For these reasons, Defendant’s Opposed Motion to Dismiss (Doc. No. 13) is
GRANTED. The complaint (Doc. No. 1) is DISMISSED without prejudice for
lack of subject matter jurisdiction. The Clerk of Court is directed to close the file.
DONE and ORDERED in Orlando, Florida on May 10, 2023.
LESLIE NOFFMAN PRICE
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Counsel of Record
Unrepresented Parties
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