NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 23-3215

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FRANK NELLOM,

Appellant

v.

COMMISSIONER OF SOCIAL SECURITY

___________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(E.D. Pa. Civil Action No. 2:23-cv-01268)

Magistrate Judge: Honorable Richard A. Lloret

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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

June 20, 2024

Before: KRAUSE, MATEY, and CHUNG, Circuit Judges

(Opinion filed June 28, 2024)

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OPINION*

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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 

does not constitute binding precedent.
2

PER CURIAM

 Appellant Frank Nellom, proceeding pro se, appeals from the District Court’s 

dismissal of his complaint without prejudice for failure to exhaust administrative 

remedies. For the following reasons, we will affirm. 

In October 2017, Nellom was found to be disabled in connection with a claim for 

supplemental security income. Nellom was incarcerated in April 2019, which triggered 

the suspension of his eligibility for benefits. See 20 C.F.R. § 416.1325. Nellom was 

released from prison on April 10, 2021, after which he filed a new application for 

supplemental security income, which was denied. Nellom subsequently filed a request 

for a hearing by an Administrative Law Judge (“ALJ”). However, before that hearing 

took place, Nellom filed a complaint in the District Court against the Commissioner 

alleging that, in light of the October 2017 disability finding, his application for benefits 

should not have been denied. See D.Ct. ECF No. 2 at 2. 

The Commissioner filed a motion to dismiss, arguing that Nellom failed to exhaust 

his administrative remedies after the denial of his new application for benefits. Nellom 

filed two motions for summary judgment, arguing that the denial of his application 

violated res judicata, and that he was entitled to the reinstatement of the disability 

benefits originally awarded in October 2017. Concluding that it lacked subject matter 

jurisdiction over the case, the District Court denied Nellom’s motions for summary 

judgment and dismissed the complaint without prejudice. Nellom filed a timely appeal. 
3

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise 

plenary review over the District Court’s dismissal of Nellom’s complaint for lack of 

subject matter jurisdiction. Tobak v. Apfel, 195 F.3d 183, 185 (3d Cir. 1999). 

The jurisdiction of district courts to review Social Security benefits cases is set out 

by 42 U.S.C. § 405(g), which provides that an “individual, after any final decision of the 

Commissioner of Social Security made after a hearing . . . may obtain a review of such 

decision by a civil action.” 42 U.S.C. § 405(g). Without a “final decision,” a district 

court lacks subject matter jurisdiction to review a Social Security benefit determination.1 

See Fitzgerald v. Apfel, 148 F.3d 232, 234 (3d Cir. 1998). Pursuant to the relevant 

regulations, a “final decision” is rendered after a benefits claimant has completed a fourstep administrative review process consisting of an initial determination, reconsideration, 

a hearing by an ALJ, and review by the Appeals Council. See Smith v. Berryhill, 139 S. 

Ct. 1765, 1772 (2019) (citing 20 C.F.R. § 416.1400). 

In moving to dismiss Nellom’s complaint, the Commissioner submitted a 

declaration that Nellom’s request for a hearing before an ALJ was still pending, and that 

an ALJ had not yet issued a decision. See D.Ct. ECF No. 13-1 at 3. Nellom has not 

disputed that he failed to obtain ALJ review of the denial of his most recent application 

1 The requirement that there be a final decision “consists of two elements, only 

one of which is purely ‘jurisdictional’ in the sense that it cannot be ‘waived’ by the 

Secretary in a particular case.” Matthew v. Eldridge, 424 U.S. 319, 328 (1976). 

Although the specific “administrative remedies prescribed by the Secretary” may be 

waived, “[t]he nonwaivable elements is the requirement that a claim for benefits shall 

have been presented to the Secretary.” Id.
4

for benefits. Instead, he argues that such review is not required because he is seeking to 

reinstate the October 2017 grant of benefits, and not appeal the recent denial of his new 

application. He asks this Court to affirm the 2017 award of benefits. See 3d Cir. ECF 

No. 8 at 2. 

Despite his assertions to the contrary, Nellom’s filings make clear that his 

complaint did in fact seek to challenge the denial of his most recent application for 

benefits, which he filed after his release from prison. Even if Nellom was seeking to 

reinstate his prior determination of disability through that new application, he has not yet 

obtained a final decision from the Commissioner, who could still grant the relief he 

seeks.2 

A litigant may not be required to exhaust his administrative remedies where his

claim is “collateral” to a claim for benefits or where he would be irreparably injured if 

exhaustion were required.3 See Bowen v. City of New York, 476 U.S. 467, 483 (1986). 

Because neither situation applies here, the District Court properly concluded that it 

lacked jurisdiction to consider Nellom’s claim.

2 As noted by the Appellee, because Nellom was incarcerated for more than 12 

consecutive months, his eligibility for benefits was terminated. See 20 C.F.R. 

§§ 416.211, 416.1325, 416.1335. The regulations “provide for no ... reinstatement where 

a recipient’s eligibility has been terminated after 12 consecutive months of suspension.” 

Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1172 (9th Cir. 2008); see also 42 U.S.C. 

§ 1383(j)(1) (instructing, subject to an exception not applicable here, that a suspension 

for 12 months ends an individual’s eligibility for benefits and requires a new application). 

3 Nellom has not raised any colorable constitutional claim that could confer federal 

jurisdiction despite the lack of a final decision. See Califano v. Sanders, 430 U.S. 99, 

108–09 (1977).