UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

NIDIA CALDERON,

Plaintiff,

v.

NANCY A. BERRYHILL, Deputy 

Commissioner for Operations, performing the 

duties and functions not reserved to the 

Commissioner of Social Security,

Defendant.

 Civil Action No. 17-494 (RDM)

MEMORANDUM OPINION

Nidia Calderon, proceeding pro se, filed this action against the Social Security 

Administration (“SSA”), seeking the payment of certain retirement benefits. The SSA has 

moved to dismiss for lack of subject-matter jurisdiction on the grounds that Calderon failed to 

exhaust her administrative remedies, or in the alternative, that Plaintiff has failed to state a claim 

upon which relief can be granted. Dkt. 42 at 2. For the reasons set forth below, the Court will 

grant the SSA’s motion.

I. BACKGROUND

The Court has twice described the factual and procedural history of this case, see

Calderon v. Berryhill, 322 F. Supp. 3d 137 (D.D.C. 2018) (“Calderon I”) and Calderon v. 

Berryhill, No. 17-494, 2019 WL 95565 (D.D.C. Jan. 3, 2019) (“Calderon II”), and, accordingly,

will repeat that background only as relevant here. 

Calderon originally brought this action in D.C. Superior Court in February 2017, alleging 

that the SSA should be compelled (1) to defer making monthly payments to her based on her 
2

own earnings and, instead, (2) to make payments based on her former spouse’s earnings record. 

Dkt. 1-1. The SSA removed that action to this Court and moved to dismiss for lack of subjectmatter jurisdiction, arguing that Calderon failed to exhaust her administrative remedies. Dkt. 12. 

The Court denied that motion without prejudice because the SSA had failed to file the exhibits 

that it relied upon in its motion. Minute Order (Jan. 18, 2018). 

On May 24, 2017, about four months after the first dismissal, Calderon filed an 

application for retirement insurance benefits with the SSA. Dkt. 42-1 at 2 (Sampson Decl.

¶ 3(a)). Five days later, the SSA awarded Calderon monthly retirement benefits based on her 

own employment record, and two weeks later the agency awarded her benefits based on her 

former spouse’s employment record. Id. (Sampson Decl. ¶ 3(b)); id. at 11–16 (Def. Exs. 2 & 3). 

Shortly thereafter, Calderon sought administrative reconsideration of the SSA’s action, 

explaining that she was seeking to delay benefits based on her own earnings and, instead, merely 

sought to receive benefits based on her former spouse’s employment record. Id. at 3 (Sampson 

Decl. ¶ 3(c)); id. at 18 (Def. Ex. 4). In response, the SSA concluded that its original decision 

was correct and, accordingly, denied reconsideration. Id. at 3 (Sampson Decl. ¶ 3(e)); id. at 28–

36 (Def. Ex. 5). Among other things, the SSA explained that, because Calderon applied for 

benefits based on her former spouse’s employment record, she was “also deemed to have applied 

for retirement benefits.” Id. at 32. The SSA’s letter denying Calderon’s request for 

reconsideration advised her that she had “60 days to ask for a hearing” before an Administrative 

Law Judge (“ALJ”); offered her assistance in completing the paperwork required to request a 

hearing; and explained that the 60-day period to seek a hearing could be extended only for “good 

reason.” Id. at 28–29. 
3

While the administrative process was ongoing, the SSA sought to dismiss Calderon’s 

civil action on the ground that she had failed to exhaust her administrative remedies. On January 

23, 2018, the SSA renewed its original motion to dismiss, again urging the Court to dismiss 

Calderon’s suit for lack of subject-matter jurisdiction. Dkt. 22. Upon reviewing the SSA’s 

second motion, the Court concluded that the agency addressed a different claim than the one 

Calderon asserted in her complaint; rather than addressing her retirement benefits claim, the 

SSA’s motion addressed Calderon’s 2011 Supplemental Security Income (“SSI”) claim.

Because that claim had nothing to do with this case, the Court again denied the SSA’s motion to 

dismiss. Calderon I, 322 F. Supp. 3d at 138.

On January 3, 2019, the SSA filed a third motion, again seeking to dismiss Calderon’s 

suit for failure to exhaust. Calderon II, 2019 WL 95565, at *1. In addressing that motion, the 

Court held that, because it was SSA’s third motion to dismiss, the Court would “entertain the 

motion only to the extent it challenge[d] the Court’s subject-matter jurisdiction.” Id. at *2 (citing 

Fed. R. Civ. P. 12(g)(2)). Non-jurisdictional defenses were not considered because, as the Court 

explained, “‘a party that makes a motion under [Rule 12] must not make another motion [to 

dismiss] raising a defense or objection that was available to the party but omitted from its earlier 

motion,’ Fed. R. Civ. P. 12(g)(2), except to the extent such a motion challenges the court’s 

subject-matter jurisdiction.” Id. (citing Fed. R. Civ. P. 12(h)(3); 5C Charles Alan Wright & 

Arthur R. Miller, Federal Practice and Procedure §§ 1384 & 1393 (3d ed. 2018)). 

After considering the parties’ submissions, the Court concluded that Calderon had not 

alleged facts or offered evidence sufficient to show that the Court had jurisdiction to consider her 

suit. Id. at *4. Calderon filed the action on February 2, 2017, three months before filing—i.e., 

“presenting”—her claim to the SSA on May 24, 2017. Id. Because jurisdiction is determined at 
4

the date the complaint is filed, § 405(g)’s jurisdictional “presentment” requirement was not 

satisfied when Calderon filed her complaint, and, therefore, the Court lacked jurisdiction. Id. In 

granting the motion to dismiss, the Court left for Calderon the decision whether to amend her 

complaint to allege that she satisfied § 405(g)’s presentment requirement (as needed for this 

Court to exercise jurisdiction) or to “wait for a final administrative decision from the Social 

Security Administration and reinstate her lawsuit at a later date.” Calderon II, 2019 WL 95565, 

at *5.

On January 30, 2019, Calderon filed a pleading, Dkt. 41, which the Court deemed an 

amended complaint. Minute Order (Jan. 30, 2019). The SSA has now filed its fourth motion to 

dismiss. Dkt. 42. As with its prior motions, SSA seeks dismissal on the ground that the Court 

lacks subject-matter jurisdiction because Calderon has not exhausted her administrative 

remedies. Id. at 2. In the alternative, the SSA argues that Calderon has failed to state a claim 

upon which relief can be granted and moves to dismiss under Federal Rule of Civil Procedure 

12(b)(6), id., or requests that the Court, if necessary, “convert [the SSA’s motion] to a motion for 

summary judgment,” id. at 5. The day after the SSA filed its motion, the Court entered an order 

noting that the SSA sought, in the alternative, to treat its motion as a motion for summary 

judgment and, accordingly, ordered that the SSA file a statement of material facts not in dispute 

and it also ordered that, in responding to the motion, Calderon file “a separate concise statement 

of genuine issues” that she contends are in dispute. Minute Order (Feb. 14, 2019). At the same 

time, the Court advised Calderon that the SSA had moved, in the alternative, for summary 

judgment and advised her of the requirements of Federal Rule of Civil Procedure 56. Dkt. 43 

(Fox/Neal Order).
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II. ANALYSIS

Because SSA moves to dismiss on several grounds (most of which fail), the Court must 

“do some procedural untangling” to “reach [the] bottom line” in this case. Osborn v. Visa Inc., 

797 F.3d 1057, 1062 (D.C. Cir. 2015). As set out below, the Court holds that dismissal is not 

appropriate under Rule 12(b)(1) because Calderon has satisfied § 405(g)’s presentment 

requirement and thus, the Court has subject-matter jurisdiction. Second, the Court holds that 

dismissal is also improper under Rule 12(b)(6) because the SSA relies almost entirely on 

materials outside the pleadings. But, finally, the Court concludes that the SSA’s motion should 

be converted to a motion for summary judgment, as the SSA requested, and that the SSA has 

carried its burden on summary judgment of demonstrating, based on the undisputed record, that 

Calderon failed to exhaust her administrative remedies and that her case falls into none of the 

recognized exceptions to the exhaustion requirement. 

Accordingly, the Court will grant the SSA’s motion for summary judgment.

A. Rule 12(b)(1)

The SSA contends that the Court should dismiss Calderon’s complaint for lack of 

subject-matter jurisdiction—even as amended—because she has failed to exhaust her 

administrative remedies. This contention, however, misapprehends the nature of the Social 

Security Act’s exhaustion requirement and the Court’s prior opinion. In Calderon II, the Court

analyzed 42 U.S.C. § 405(g), which constitutes the exclusive grant of jurisdiction for courts to 

review SSA decisions, and found that § 405(g) limits judicial review to a “final decision.” 2019 

WL 95565, at *3. The Court also explained that the “final decision” requirement “‘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.’” Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 328 
6

(1976)). “‘The nonwaivable element is the requirement that a claim for benefits shall have been 

presented to the Secretary;’” the “‘waivable element is the requirement that the administrative 

remedies prescribed by the Secretary be exhausted.’” Id. (emphasis added). Simply put, before 

a district court has jurisdiction to review an SSA decision, § 405(g) requires that a claimant 

“present” her claim to the SSA, but the “presentment” requirement is not co-extensive with the 

exhaustion of administrative remedies.

After surveying the relevant case law, the Court also observed that there is a split among 

lower courts about the meaning of “presentment.” Id. Some courts, for example, have required 

only that an SSA claimant file a claim, while others have required both a filing and an initial 

decision by the SSA. See id. (collecting cases). Under either approach, however, Calderon has 

satisfied § 405(g)’s presentment requirement. Indeed, the “SSA does not contest”—nor could 

it—that Calderon’s “amended complaint meets [the] threshold [presentment] requirement,” as 

she “has filed a retirement claim and SSA has issued an initial decision.” Dkt. 42 at 4 (citing 

Dkt. 41 at 1). As a result, the Court has subject-matter jurisdiction over Calderon’s challenge,

and the SSA’s motion to dismiss under Fed. R. Civ. P. 12(b)(1) must, accordingly, fail. See Cost 

v. SSA, 770 F. Supp. 2d 45, 49 (D.D.C. 2011) (citation omitted) (“A motion to dismiss under 

Rule 12(b)(1) for lack of subject-matter jurisdiction is inappropriate where a defendant claims 

that a plaintiff failed to comply with only the non-jurisdictional exhaustion requirement.”). 

Having resolved the jurisdictional issue presented, the Court now turns to the motion for

dismissal for failure to state a claim.

B. Rule 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6), a complaint that fails to “state a claim 

upon which relief can be granted” is subject to dismissal. The SSA argues that dismissal is 
7

warranted here because Calderon has failed to exhaust her administrative remedies. That 

contention, however, again misunderstands the nature of the SSA exhaustion requirement. 

Because Calderon’s amended complaint satisfies § 405(g)’s presentment requirement for the 

reasons noted above, the SSA’s remaining exhaustion defense is an affirmative defense, not a 

jurisdictional defense. In Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court clarified that,

when exhaustion is non-jurisdictional, plaintiffs “are not required to specially plead or 

demonstrate exhaustion in their complaints.” 549 U.S. at 216. Although Jones was decided in 

the context of a different statutory scheme, its logic applies here. Plaintiffs raising claims under 

§ 405(g) need only plead and prove the jurisdictional “presentment” requirement. By contrast, 

the waivable exhaustion requirement is an affirmative defense that claimants are “free to omit 

. . . from their pleadings.” Kim v. United States, 632 F.3d 713, 719 (D.C. Cir. 2011); see also

Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (holding that “the defendant bears 

the burden of pleading and proving” exhaustion when it is an affirmative defense). 

Of course, “even when failure to exhaust is treated as an affirmative defense, it may be 

invoked in a Rule 12(b)(6) motion if the complaint somehow reveals the exhaustion defense on 

its face.” Thompson v. DEA, 492 F.3d 428, 438 (D.C. Cir. 2007). But that is not the case here. 

Rather, Calderon’s complaint provides “scant information about [her] underlying claim,”

Thibeaux v. SSA, No. 12-01588, 2015 WL 12964650 at *5 (D.D.C. Oct. 20, 2015), report and 

recommendation adopted, 2016 WL 7839127 (D.D.C. Apr. 18, 2016), and fails to allege facts 

sufficient to resolve the SSA’s failure-to-exhaust defense. The SSA’s reliance on documents 

outside the pleadings confirm this conclusion. In support of its motion, the SSA offers the 

declaration of Michael Sampson, an employee of SSA’s Office of Appellate Operations, and five

exhibits, which together explain the agency’s appellate procedure and provide the relevant SSA 
8

documents for Calderon’s case. See Dkt. 42-1. The SSA repeatedly cites the Sampson 

declaration and its exhibits in its motion, while—notably—failing to identify any allegations in 

Calderon’s complaint relevant to the exhaustion issue. See, e.g., Dkt. 42 at 3–4 (repeatedly 

citing to the Sampson declaration). 

The Court, accordingly, cannot determine whether the SSA is entitled to prevail on its 

failure-to-exhaust defense, without “go[ing] beyond the face of the complaint and conduct[ing]

further inquiry.” Kim, 632 F.3d at 719. The Court cannot do so within the four corners of a 

motion to dismiss pursuant to Rule 12(b)(6). See Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 

1059 (D.C. Cir. 2007) (internal citation and quotation omitted) (“In determining whether a 

complaint states a claim, the court may consider the facts alleged in the complaint, documents 

attached thereto or incorporated therein, and matters of which it may take judicial notice.”).

B. Rule 56

This does not end the inquiry, however, because the SSA requests that, if necessary, the 

Court “convert [its motion to dismiss] to a motion for summary judgment.” Dkt. 42 at 5. Before

doing so, the Court must assure itself that Calderon has received fair “notice and an opportunity 

to present evidence in support of [her] . . . position[,]” Kim, 632 F.3d at 719, and “that summary 

judgment treatment would be fair to both parties,” Tele–Commc'ns of Key W., Inc. v. United 

States, 757 F.2d 1330, 1334 (D.C. Cir. 1985); see also Fed. R. Civ. P. 12(d) (requiring that 

“parties must be given a reasonable opportunity to present all the material that is pertinent to the 

motion” before a Rule 12(b)(6) motion may be treated as a motion for summary judgment). 

Rule 12(d)’s requirements of notice and a reasonable opportunity to present controverting 

evidence and argument present no obstacle here. To start, the SSA’s motion expressly requests 

that the Court, if necessary, treat the motion as a motion for summary judgment. Dkt. 42 at 5. 
9

As a result, Calderon “had notice that [the SSA’s] motion was, at least potentially, one for 

summary judgment.” Colbert v. Potter, 471 F.3d 158, 168 (D.C. Cir. 2006). To be sure, that 

notice would have been clearer had the SSA moved, in the alternative, for summary judgment.

See id. The SSA’s request that the Court convert the motion to one for summary judgment was, 

however, with one exception, functionally equivalent. That one exception—that the SSA did not 

file a statement of materials facts not in dispute—moreover, was cured by the Court’s Minute 

Order, filed the day after the SSA filed its motion, requiring the SSA to file a “statement of 

material facts as to which the moving party contends there is no genuine issue,” and requiring 

Plaintiff to file, along with her opposition, “a separate concise statement of genuine issues” 

responding to the SSA’s statement. Minute Order (Feb. 2, 2019). Finally, any doubt about 

Calderon’s notice and opportunity to present responsive evidence and argument is put to rest by 

the Court’s further order, issued that same day, advising Calderon that the SSA had moved, “in 

the alternative, for Summary Judgment,” and advising her of the relevant requirements that Rule 

56 imposes on a party opposing summary judgment. Dkt. 43 (Fox/Neal Order). The Court will, 

therefore, convert the SSA’s motion into a motion for summary judgment. 

A motion for summary judgment requires the movant to show “that there is no genuine 

dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “A fact is material if it ‘might affect the outcome of the suit under the 

governing law,’ and a dispute about a material fact is genuine ‘if the evidence is such that a 

reasonable jury could return a verdict for the nonmoving party.’” Steele v. Schafer, 535 F.3d 

689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). 

When considering a motion for summary judgment, the “evidence of the non-movant is to be 

believed, and all justifiable inferences are to be drawn in [her] favor.” Liberty Lobby, 477 U.S. 
10

at 255. In the instant motion, the SSA argues that there is no genuine dispute that Calderon has 

failed to exhaust her administrative remedies and that, as a result, the agency is entitled to 

judgment as a matter of law. See Dkt. 42 at 7.

Under the Social Security Act, judicial review is available only after a “final decision of 

the Commissioner of Social Security made after a hearing to which [the litigant] was a party.” 

42 U.S.C. § 405(g). “[T]he term ‘final decision’ is not only left undefined by the Act, but its 

meaning is left to the Secretary to flesh out by regulation.” Weinberger v. Salfi, 422 U.S. 749, 

766 (1975). Consistent with this framework, the Secretary has promulgated regulations 

establishing a four-step administrative review process, that an aggrieved party must complete to 

exhaust her administrative remedies: (1) the aggrieved party must obtain an initial determination; 

(2) if that determination is adverse, she must seek reconsideration of that determination; (3) if 

she is “dissatisfied with the reconsideration determination,” she must request a hearing before an 

ALJ; and (4) if she is “dissatisfied with the decision of the” ALJ, she must seek review by the 

SSA Appeals Council. See 20 C.F.R. § 404.900(a)(1)-(4); see also id. § 416.1400(a)(1)–(4). 

Only after “complet[ing] the[se] steps” may an aggrieved party “request judicial review by filing 

an action in a Federal district court.” 20 C.F.R. § 404.900(a)(5). Although the regulations also 

establish a process for obtaining expedited review in a federal district court—where, for 

example, the aggrieved party does not dispute the SSA’s findings of fact or its application or 

interpretation of controlling law but believes that a part of the law is unconstitutional—Calderon 

does not invoke that provision and does not assert the type of challenge contemplated by the 

expedited review provision. See id. § 404.900(a)(6).

The undisputed facts show that Calderon has not completed the SSA’s four-step review 

process. The Sampson declaration attests that Calderon has obtained an initial decision, Dkt. 42-
11

1 at 2 (Decl. ¶ 3(b)); has sought and been denied reconsideration, id. at 3 (Decl. ¶¶ 3(c), (e)); but 

has not “requested a hearing” before an ALJ or obtained a decision from an ALJ, id. (Decl. 

¶ 3(f)); see also id. at 11 (Def. Ex. 2); id. at 17 (Def. Ex. 4); id. at 28 (Def. Ex. 5). Calderon does 

not dispute these facts. The evidence in the record also demonstrates that Calderon received

notice that she had the right to request a hearing to contest the denial of her request for 

reconsideration. See id. at 3 (Def. Ex. 5). Despite this notice, she neither claims nor provides 

any evidence that she took any steps beyond seeking reconsideration. As a result, the 

uncontroverted record establishes that Calderon has failed to exhaust her remedies. This failure 

to exhaust is “fatal to [Calderon’s] claims unless the Court determines the exhaustion 

requirement should be excused.” Hall v. Sebelius, 689 F. Supp. 2d 10, 23 (D.D.C. 2009).

As the Court has previously explained, § 405(g) includes both a jurisdictional 

“presentment” requirement and a non-jurisdictional “exhaustion” requirement. Calderon II, 

2019 WL 95565, at *3 (citing Mathews, 424 U.S. at 328); see also Triad at Jeffersonville I, LLC 

v. Leavitt, 563 F. Supp. 2d 1, 16 (D.D.C. 2008). Although the non-jurisdictional exhaustion 

requirement is not absolute, waiver is available only in “exceptional circumstances.” UDC 

Chair Chapter, Am. Ass’n of Univ. Professors v. Bd. of Trs. of UDC, 56 F.3d 1469, 1475 (D.C. 

Cir. 1995) (internal quotation and citation omitted)). “A court may waive the exhaustion 

requirements of § 405(g) when (1) the issue raised is entirely collateral to a claim for payment; 

(2) plaintiffs show they would be irreparably injured were the exhaustion requirement enforced 

against them;” or where “(3) exhaustion would be futile.” Triad at Jeffersonville I, LLC, 563 F.

Supp. 2d at 16 (citing Bowen v. City of New York, 476 U.S. 467, 483–85 (1986)). Under those 

circumstances, a court may waive the requirement, but only if the “‘litigant’s interests in 

immediate judicial review outweigh the government’s interests in the efficiency or 
12

administrative autonomy that the exhaustion doctrine is designed to further.’” Am. Hosp. Ass’n

v. Azar, 348 F. Supp. 3d 62, 75 (D.D.C. 2018) (quoting Avocados Plus Inc. v. Veneman, 370 

F.3d 1243, 1247 (D.C. Cir. 2004)).

Calderon fails to offer any basis to conclude that her failure to exhaust should be excused 

on the present record. Her claim is not collateral to a claim for payment; rather, she seeks to 

adjust the payments that she is receiving—and will in the future receive—from the SSA. She 

has failed to offer any evidence or argument suggesting that time is of the essence and that, 

absent immediate judicial review, she will sustain an irreparable loss. Nor has she offered any 

basis to conclude that exhaustion would have been futile. Notably, “[t]he futility exception only 

applies where exhaustion would be ‘clearly useless,’ such as where the agency ‘has indicated 

that it does not have jurisdiction over the dispute, or because it has evidenced a strong stand on 

the issue in question and an unwillingness to reconsider the issue.’” Lazaridis v. SSA, 856 F. 

Supp. 2d 93, 98 (D.D.C. 2012) (quoting Randolph-Sheppard Vendors v. Weinberger, 795 F.2d 

90, 105–06 (D.C. Cir. 1986)). Here, however, nothing in the record suggests that exhaustion 

“would be futile because the Secretary’s procedures are infirm, or because the Secretary has 

adopted a clandestine policy.” Abbey v. Sullivan, 978 F.2d 37, 45 (2d Cir. 1992). And 

disregarding the exhaustion requirement merely because the agency decided on reconsideration 

that its initial determination was “correct and proper,” Dkt. 42-1 at 36, Def. Ex. 5, would 

undermine the statutory and regulatory goal of ensuring that aggrieved parties obtain a 

considered and final determination from the SSA before filing suit.

 Finally, the Court notes that the SSA’s February 13, 2019 denial granted Calderon sixty 

days to request a hearing, subject to extension only upon a showing of good cause. Id. at 28

(Def. Ex. 5); see also 20 C.F.R. § 404.933(b)(1) (providing that a claimant has “60 days after the 
13

date [she] receive[s] notice” to request a hearing). The notice also indicated that this 60-day 

deadline began to run five days after the date on the notice, meaning that Calderon had until 

April 19, 2019 to request a hearing. There is no evidence that she has done so, and, therefore, 

Calderon may be unable to obtain a hearing absent a showing of good cause. Although the Court 

recognizes that it might now be too late for Calderon to seek a hearing before an ALJ,

1

“one 

cannot avoid an exhaustion requirement merely by delaying beyond the time that an 

administrative proceeding must be brought,” Steadman v. Governor, U.S. Soldiers’ & Airmen’s 

Home, 918 F.2d 963, 968 (D.C. Cir. 1990). “Were the rule otherwise, an exhaustion requirement 

could be circumvented all too easily.” Id.

CONCLUSION

For the foregoing reasons, the Court will grant the SSA’s motion for summary judgment, 

Dkt. 42.

A separate order will issue.

 /s/ Randolph D. Moss 

 RANDOLPH D. MOSS 

 United States District Judge 

Date: September 20, 2019

 

1 The Court notes that, under SSA regulations, good cause exists when “within 60 days of 

receiving the [reconsideration decision] . . . [the claimant] filed a civil suit.” 20 C.F.R. § 

404.911(b)(5). The Court expresses no view on whether that or any other basis might exist for 

extending the 60-day requirement in this case.