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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

DONNITA BRYANT, o/b/o

J.B., a minor,

Plaintiff,

v. CASE NO. 1:10-cv-00227-MP-GRJ

SOCIAL SECURITY ADMINISTRATION,

Defendant.

 /

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se, has filed a complaint for judicial review of a

determination by the Social Security Administration denying her application for social

security disability benefits for her son. (Doc. 1). Plaintiff requests permission to

proceed in forma pauperis. (Doc. 2.) The Court has reviewed the Complaint and the

materials filed with the complaint to determine the sufficiency of the claim. For the

reasons discussed below, the Court determines that because this Court does not have

jurisdiction to review the decision of the Social Security Administration at the

reconsideration stage of the administrative review process, Plaintiff’s complaint should

be dismissed and Plaintiff’s Motion to Proceed In Forma Pauperis should be denied.

Discussion

In Plaintiff’s handwritten complaint she contends that there was “an unjustified

ruling” by the Social Security Administration denying the claim she filed on behalf of her

nine year old son for social security disability benefits based upon claims that her son is

disabled as a result of asthma, an irregular heartbeat, and learning disabilities,
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specifically speech problems and attention deficits. Plaintiff challenges two

examinations – presumably consultative examinations ordered by the Social Security

Administration (the Administration) – that she contends were “incomplete” and were

conducted unfairly. 

The fundamental problem with Plaintiff’s claim is that she has failed to exhaust

the required administrative remedies and instead is challenging the denial of her

request for reconsideration of the decision of the Social Security Administration, before

requesting and obtaining a hearing before an administrative law judge. While Plaintiff’s

complaint fails to mention the procedural posture of her claim, Plaintiff attached to her

complaint a decision by the Social Security Administration, dated November 9, 2010,

denying her request for reconsideration of the decision denying her son’s claim for

disability benefits. (Doc. 1, p. 26). This Notice of Reconsideration, expressly advised

Plaintiff that if she believed the reconsideration determination was not correct, she had

the right within 60 days to request a hearing before an administrative law judge of the

Office of Disability Adjudication. While the record does not disclose whether Plaintiff

has made a request for a hearing before an ALJ, it is evident that a hearing has not

been conducted and a decision has not been issued by an ALJ.

Pursuant to 42 U.S.C. §405(g), a claimant seeking judicial review of an

administrative decision by the Social Security Administration in federal court must have

received a “final decision of the Commissioner of Social Security made after a

hearing....” (emphasis supplied). Although all administrative decisions at each stage of

the administrative process are final and binding on the parties, there is a four step

administrative process that each claimant must complete before filing a complaint in

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federal court. 20 C.F.R. §§ 404.900 (2009). This four step process requires Plaintiff to

exhaust the following administrative remedies: 

An individual steps up to the administrative starting line by filing a claim

for benefits with the Social Security Administration. The gun sounds with

the decision to grant or deny this claim, which is known as the initial

determination of the Secretary. 20 CFR §§ 404.905, 404.907 (1979). The

claimant who receives an adverse initial determination satisfactorily jumps

his first hurdle by filing a request for reconsideration. 20 CFR §§ 404.909,

404.913 (1979). The Secretary then acquires discretion to review the

merits of the claim for a second time and issue what is impressively

denominated a reconsidered determination. 20 C.F.R. § 404.914 (1979).

After obtaining both an initial and reconsidered determination, the

dissatisfied claimant, now breaking into full stride, files for an evidentiary

hearing before an administrative law judge. 42 U.S.C. § 405(b) (1979); 20

CFR §§ 404.917, 404.919 (1979). Before breaking the ribbon at the end

of the administrative finish line, the claimant must appeal the ALJ's

hearing decision to the Appeals Council, which is the final arbiter and

‘supreme administrative court’ in the agency process. 20 CFR §§

404.945-404.947a (1979).

Giacone v. Schweiker, 656 F.2d 1238, 1241 (7th Cir. 1981).

Plaintiff only has obtained an initial and reconsidered determination of her claim

and has failed to complete the necessary step of filing for an evidentiary hearing before

an administrative law judge. 

The Court’s subject matter jurisdiction to review decisions of the Social Security

Administration is defined and limited by 42 U.S.C. § 405(g). Two jurisdictional

prerequisites must be met before a federal court has jurisdiction to review the decision

of the agency. The claimant must have presented a claim for benefits to the

Commissioner and the claimant must have exhausted the administrative remedies. 

Crayton v. Callahan, 120 F.3d 1217, 1220 (11th Cir. 1997). If there has been no

exhaustion, dismissal for lack of subject matter jurisdiction is appropriate. Id.

Accordingly, because the Plaintiff has not exhausted the available administrative

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remedies by failing to obtain an evidentiary hearing and decision from an administrative

law judge, this Court does not have subject matter jurisdiction to review the decision of

the Social Security Administration denying Plaintiff’s claim at the reconsideration stage

of the administrative process. 

In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff’s motion

for leave to proceed in forma pauperis be DENIED and this case DISMISSED for lack of

subject matter jurisdiction.

At Gainesville, Florida, this 18 day of November 2010. th

s/Gary R. Jones

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written objections to

the proposed findings and recommendations within 14 days after being served with a

copy of this report and recommendation. A party may respond to another party’s

objections within 14 days after being served with a copy thereof. Failure to file specific

objections limits the scope of review of proposed factual findings and

recommendations.

Case No: 1:10-cv-00227-MP -GRJ