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 IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION 

JOHN W. McQUEEN, 

 Plaintiff, 

 vs. Civil Action 2:12-cv-1124 

 Judge Watson 

 Magistrate Judge King 

NANCY BERRYHILL, 

 Defendant. 

 REPORT AND RECOMMENDATION

 Plaintiff, a state prisoner, brings this action seeking past 

benefits allegedly due him under the Social Security Act. This matter 

is now before the Court for the initial screen of the Complaint

required by 28 U.S.C. §§ 1915(e)(2), 1915A. 

 Plaintiff alleges in the Complaint, Doc. No. 1, that he is 

entitled to Social Security benefits (whether disability insurance 

benefits, supplemental security income or old-age benefits is not 

entirely clear), but that defendant, apparently an employee of the 

Social Security Administration, has refused to pay those benefits to 

plaintiff. The Complaint further alleges that exhaustion of 

plaintiff’s claim “would be a waste of time.” Id., p. 3. 

 Federal law establishes the proper procedure to be followed when 

an individual believes that he has been improperly denied Social 

Security benefits. Section 405(g) of Title 42 of the United States 

Code provides, in pertinent part, as follows: 

Any individual, after any final decision of the 

Commissioner of Social Security made after a hearing to 

which he was a party, irrespective of the amount in 

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controversy, may obtain a review of such decision by a 

civil action commenced within sixty days after the mailing 

to him of notice of such decision or within such further 

time as the Commissioner of Social Security may allow. 

The Commissioner of Social Security is the only proper defendant in 

such an action. See id. Moreover, an action for review of the denial 

of Social Security benefits can be brought in a court only after the 

Commissioner of Social Security has issued a final decision “made 

after a hearing to which he was a party. . . .” 42 U.S.C. § 405(g). 

This procedure is the only procedure that can be followed if an 

individual seeks review by a court of a denial of Social Security 

benefits. 42 U.S.C. § 405(h).1

 Because plaintiff has not followed the procedures set forth in 42 

U.S.C. § 405(g), i.e., he has not named the Commissioner of Social 

Security as a defendant and it does not appear that the decision 

challenged by plaintiff was the subject of a hearing before the Social 

Security Administration, this action cannot proceed.2

 It is therefore RECOMMENDED that this action be dismissed for 

lack of subject matter jurisdiction and for failure to state a claim 

upon which relief can be granted. 

If any party seeks review by the District Judge of this Report 

and Recommendation, that party may, within fourteen (14) days, file 

and serve on all parties objections to the Report and Recommendation,

specifically designating this Report and Recommendation, and the part 

 

1 Section 405(h) provides, in pertinent part: “No action against the United 

States, the Commissioner of Social Security, or any officer or employee 

thereof shall be brought under section 1331 or 1346 of Title 28 to recover on 

any claim arising under this subchapter.” 

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thereof in question, as well as the basis for objection thereto. 28 

U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b). Response to objections must 

be filed within fourteen (14) days after being served with a copy 

thereof. Fed. R. Civ. P. 72(b). 

 The parties are specifically advised that failure to object to 

the Report and Recommendation will result in a waiver of the right to 

de novo review by the District Judge and of the right to appeal the 

decision of the District Court adopting the Report and Recommendation. 

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of 

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States 

v. Walters, 638 F.2d 947 (6th Cir. 1981). 

 s/Norah McCann King 

 Norah McCann King 

 United States Magistrate Judge 

DATE: December 18, 2012

 2 The Court expresses no opinion on the timeliness of plaintiff’s action. 

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