Bailey found that: (1) Marvin was entitled to child’s insurance benefits for the months
May 1999 through June 2001; (2) recovery of the overpayment for the months of
October 1991 through May 1994 was against equity and good conscience; (3) the
money withheld from Marvin’s benefits as a result of the overpayment should be
refunded and (4) there was no basis to reopen April 1994 decision.

Plaintiff requested review by the Appeals Council challenging the ALJ’s refusal to
reopen the April 1994 determination. The Appeals Council denied the plaintiff's request
for review, and the decision of the ALJ became the final decision of the Commissioner.
Plaintiff then filed a complaint seeking judicial review of the Commissioner's refusal to
reopen the April 1994 determination.

Analysis

Under Title Il of the Social Security Act, a claimant who demonstrates that he or
she is the child of an individual entitled to old-age or disability insurance benefits is
entitled to child’s insurance benefits. 42 U.S.C. §§ 402(d). The Commissioner is
authorized to make findings of fact and decisions with regard to the rights of any
individual applying for such benefits. 42 U.S.C. § 405(b). Any individual may obtain
federal court review of the final decision of the Commissioner by filing a civil action in
the district court within 60 days after notice of the decision is given. 42 U.S.C. § 405(g).

Here, plaintiff seeks review of the ALJ’s denial of her request to reopen the April
1994 determination which terminated Marvin's benefits. Because this is the only ground
on which the plaintiff seeks review, the Commissioner argues that this Court has no

subject matter jurisdiction. We agree.


or seek waiver, and the Administration's decision became administratively final after the
60 day appeal period expired. As of March 1995, plaintiff had failed to make any
payments to the Administration toward the reduction of the overpayment.

In November 1999, plaintiff reapplied for child's insurance benefits. In March
2000, plaintiff also submitted a signed statement requesting a reopening of the April
1994 decision. In support of her request, plaintiff submitted results from a blood test
which established Brown’s paternity under Illinois law. In October 2000, based on the
evidence then in its possession, the Administration determined that a parent-child
relationship existed between Brown and Marvin. Plaintiff was awarded child's insurance
benefits retroactive to November 1999, which the Administration later amended to May
1999. Because plaintiff had never repaid or otherwise sought waiver of the
Overpayment for benefits Marvin received from 1991-1994, recovery of that
overpayment commenced immediately following the October 2000 decision and
continued until April 2001, at which time the overpayment was fully recovered.

After receiving untimely notice of the award of benefits in December 2000,
plaintiff requested a reconsideration of the Administration's decision, disputing both the
determination of the initial month of entitlement and the propriety of the overpayment.
In February 2001, the Administration determined that the correct month of entitlement
was May 1999. The Administration did not specifically address the propriety of the
overpayment. However, the Administration did address whether the initial determination
should be reopened and it declined to reopen the 1994 determination. Plaintiff timely
requested a hearing before an ALJ on both issues. Administrative Law Judge Carlton
Bailey, Jr. held a hearing on April 5, 2002 and issued a decision on April 26, 2002. ALJ

3


Pursuant to section 405(g) of the Act, a district court has subject matter
jurisdiction to review only a “final decision of the Commissioner...made after a
hearing....” Id. (emphasis added). It is well-settled that the Commissioner's decision to
deny a party's request to reopen a prior claim for benefits does not constitute a final
decision within the meaning of the Act. Califano v. Sanders, 430 U.S. 99, 108 (1977);
Bolden v. Bowen, 868 F.2d 916, 919 (7th Cir. 1989). Therefore, absent a challenge on
constitutional grounds, the district court does not have jurisdiction to review the
Commissioner's refusal to reopen a claim for benefits. /d. Here, plaintiff does not
challenge the Commissioner's denial of her request to reopen the 1994 determination
on constitutional grounds. Accordingly, § 405(g) does not afford subject matter
jurisdiction in this case and there is no independent basis on which to grant judicial
review outside of § 405(g).

The Act and accompanying regulations provide for a fair and reasonable
administrative mechanism by which a claimant may seek judicial review of an adverse
decision of the Commissioner. Califano, 430 U.S. at 102. Plaintiff did not avail herself
of any of the prescribed avenues for administrative or judicial review following the April
1994 determination which terminated Marvin's benefits. Plaintiff cannot now circumvent
the statutory requirements and obtain judicial review simply by filing - and being denied
- a petition to reopen the claim. Because this Court lacks subject matter jurisdiction,

defendant's motion to dismiss must be granted.’

' Plaintiff argues that the ALJ’s denial of her petition to reopen was erroneous because she was
entitled to an “unlimited reopening.” However, we do not reach the merits of plaintiff's argument
because this Court has no jurisdiction.



Minute Orter Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Ronald A. Guzman Sitting Judge if Other Michael T. Mason
or Magistrate Judge than Assigned Judge
CASE NUMBER 03 C 5898 DATE 10/19/2004
CASE Ezell vs. Barnhart
TITLE
[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
@) o Answer brief to motion due. . Reply to answer brief due
(4) Oo Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) oO Trial[set for/re-set for] on at
(8) oO [Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) OLocal Rule 41.1 CFRCP41(a)\(1) OFRCP41(a)(2).
ao) =o [Other docket entry] _ REPORT AND RECOMMENDATION is hereby submitted to Judge Guzman
recommending that defendant’s motion to dismiss complaint [11-1] be GRANTED. Specific written objections
to this report and recommendation may be served and filed within 10 business days from the date that this order
is served. Fed. R. Civ. P. 72. Failure to file objections with the District Court within the specified time will result
in a waiver of the right to appeal all findings, factual and legal, made by this Court in the report and
recommendation. Lorentzen y, Anderson Pest Control, 64 F.3d 327, 330 (7" Cir. 1995). All matters relating to the
referral of this case having been resolved, the referral is closed and the case is returned to the assigned judge.
(il) ff (For further detail see order attached to the original minute order.]
No notices required, advised in open court.
2
No notices required. umber of notices
oY | Notices mailed by judge's staff. OCT
vd oT 2.0 2one
7 date docketed
Docketing to mail notices.
rox
Mail AO 450 form. dockesing deputy initials
uv | Copy to judge/magistrate judge. Wir

10/19/2004

courtroom was 61 graye date mailed notice
deputy’s ag:h hs «
initials

Date/time received-in
“central Clerk’s Office

mailing deputy initials



Conclusion

This Court recommends that the District Court grant the Commissioner's motion
to dismiss for lack of subject matter jurisdiction. Specific written objections to this report
and recommendation may be served and filed within 10 business days from the date
that this order is served. Fed. R. Civ. P. 72. Failure to file objections with the District
Court within the specified time will result in a waiver of the right to appeal all findings,
factual and legal, made by this Court in the report and recommendation. Lorentzen v.

Anderson Pest Control, 64 F.3d 327, 330 (7th Cir. 1995).

ENTER:

MICHAEL T. MASON
United States Magistrate Judge

Dated: October /7, 2004



IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION wees

EVELYN EZELL, o/b/o
MARVIN E. BROWN,

Plaintiff, Case No. 03 C 5898

vs.

Judge Ronald A. Guzman

JO ANNE B. BARNHART,

Commissioner of Social Security Magistrate Judge Michael T. Mason

~~ eS SSS SS SESS

Defendant.
REPORT AND RECOMMENDATION

Michael T. Mason, United States Magistrate Judge:

Plaintiff, OEvelyn Ezell (‘plaintiff’), acting on behalf of her son Marvin E. Brown
(“Marvin”), filed a complaint seeking judicial review of the Commissioner of the Social
Security Administration’s (“Commissioner” or “defendant”) denial of plaintiff's request to
reopen a 1994 determination which terminated Marvin's entitlement to child’s insurance
benefits. The Commissioner filed a motion to dismiss plaintiff's complaint for lack of
subject matter jurisdiction as defined by section 405(g) of the Social Security Act (“Act”).
The District Court referred the motion to dismiss to us for a report and recommendation.
For the following reasons, we recommend that the District Court grant defendant's
motion to dismiss.

Background

In October 1987, Marvin J. Brown (“Brown”) applied for and was awarded

retirement insurance benefits. Shortly thereafter, Brown's wife, Laveryl Brown (‘Mrs.

Brown”), applied for and was awarded wife’s insurance benefits. In April 1992, plaintiff,

“ pOCKETED
oct 28

p04

~


Evelyn Ezell, filed an application for child’s insurance benefits on behalf of her son,
Marin E. Brown (‘Marvin’), alleging that Brown was Marvin’s father. In June of that
same year, Marvin was awarded monthly benefits retroactive to October 1991.

As a result of the Social Security Administration’s (‘the Administration”)
determination that Marvin was entitled to child’s insurance benefits, Mrs. Brown's
monthly benefit was reduced. Mrs. Brown requested a reconsideration of Marvin's
entitlement to benefits, alleging that Brown was not Marvin's father. In October 1992,
the Administration upheld Marvin's entitlement to child's insurance benefits, finding that
a parent-child relationship had been established.

Mrs. Brown then requested a hearing on the issue of Brown's paternity, which
was scheduled for September 1993. However, that hearing was postponed until
February 1994 in order for the plaintiff to obtain representation. Plaintiff failed to appear
at the February hearing. In April 1994, Administrative Law Judge Thomas H. Ploss
dismissed plaintiff's application for benefits with prejudice, finding the matter had been
abandoned by plaintiff without good cause. ALJ Ploss further found that plaintiff failed
to prove by clear and convincing evidence that Brown was Marvin's father. Plaintiff did
not appeal the April 1994 decision, which became administratively final 60 days
thereafter.

In June 1994, the Administration terminated Marvin's entitlement to child’s
insurance benefits retroactive to his initial month of entitlement, October 1991. The
Administration also assessed an overpayment of $9,544.00 against plaintiff for benefits
Marvin received from October 1991 to May 1994. Plaintiff was notified of the
overpayment on December 23, 1994. Plaintiff did not appeal the overpayment decision

2