United States District Court, D. Maryland
BETTY J. EVERETT, Plaintiff,
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
AMENDED REPORT AND RECOMMENDATION
Stephanie A. Gallagher United States Magistrate Judge
Betty J. Everett filed this action pro se. [ECF No.
1]. The Social Security Administration (“the
SSA”) filed a motion to dismiss for lack of subject
matter jurisdiction (“motion”) pursuant to
Fed.R.Civ.P. 12(b)(1), on the grounds that Ms. Everett failed
to exhaust her administrative remedies prior to filing her
complaint. [ECF No. 18]. Pursuant to Standing Order 2014-01,
this case has been referred to me for Report and
Recommendations on the dispositive motion. On April 6, 2016,
I issued a Report and Recommendations recommending that the
SSA’s motion be denied. [ECF No. 20]. On April 20,
2016, the SSA filed objections to my Report and
Recommendations, and attached new evidence, namely a
declaration from Joan Heller. [ECF No. 21]. Plaintiff did not
file a response to the objections. On May 9, 2016, Judge
Hollander recommitted the case to me to consider the new
evidence and to amend my Report and Recommendations, if
warranted. [ECF No. 22]. No hearing is deemed necessary.
See Local R. 105.6 (D. Md. 2014). For the reasons
stated below, after considering the new evidence, I recommend
that the SSA’s motion to dismiss be granted.
precise facts underlying Ms. Everett’s claim are
somewhat unclear. Her complaint form contains no case number
or information about her underlying administrative
proceedings. [ECF No. 1]. A cover letter attached to her
complaint suggests that her “entire [S]ocial [S]ecurity
account” was “fraudulently changed” and
that her benefit checks were stopped. [ECF No. 1-2]. In a
later filing, Ms. Everett submitted documentation showing (1)
that she has been receiving Social Security Benefits, and (2)
that Social Security alleges that Ms. Everett has a
significant overpayment, totaling $134, 476.00 at the time of
the paperwork, “due to fraudulently receiving
disability benefits” and “working full time . . .
while receiving disability.” [ECF No. 8-2, 8-3].
documentation contains handwritten notes from Ms. Everett
suggesting that someone named “Alvin Gonzalez”
has interfered with her receipt of benefits and has hacked
all of her bank accounts. See, e.g., [ECF No. 8-3,
8-5]. It appears that she alleges that Mr. Gonzalez was an
employee at the SSA. [ECF No. 8-5]. Ms. Everett further
alleges that Mr. Gonzalez and another individual, “O.G.
Agent Petro, ” prevented her from filing appeals to the
SSA between 2011 and 2014. [ECF No. 8-5]. Ms. Everett filed
the instant lawsuit on December 11, 2015. [ECF No. 1].
Standard of Review
to dismiss for lack of subject matter jurisdiction are
governed by Fed.R.Civ.P. 12(b)(1). While the plaintiff bears
the burden of proving that the court has jurisdiction over
the claim or controversy at issue, a 12(b)(1) motion should
only be granted if the “material jurisdictional facts
are not in dispute and the moving party is entitled to
prevail as a matter of law.” Ferdinand-Davenport v.
Children’s Guild, 742 F.Supp.2d 772, 777 (D. Md.
2010); see also Evans v. B.F. Perkins Co., a
Div. of Standex Int’l Corp., 166 F.3d 642, 647
(4th Cir. 1999). In a motion to dismiss for lack of subject
matter jurisdiction, the pleadings should be regarded as
“mere evidence on the issue, ” and courts may
“consider evidence outside the pleadings without
converting the proceeding to one for summary judgment.”
Evans, 166 F.3d at 647. The pleadings of pro
se litigants, such as Ms. Everett, are liberally
construed. See Erickson v. Pardus, 551 U.S. 89, 94
argues that this Court does not have jurisdiction over Ms.
Everett’s claim because she failed to exhaust
administrative remedies and is not appealing from a final
order of the Commissioner. Under Social Security Act sections
205(g) and (h), an individual may only obtain judicial review
of the Commissioner’s “final” decision
after she has exhausted all administrative remedies. 42
U.S.C. §§ 405(g)-(h). Because there is no formula
for determining whether a decision is final, the meaning of
that term is left to federal and state agencies to define by
regulation. Weinberger v. Salfi, 422 U.S. 749, 766
(1975). Section 405(g) of the Social Security Act provides
that “any individual, after any final decision of the
Commissioner made after a hearing to which he was a party . .
. may obtain a review of such decision by a civil action. . .
.” 42 U.S.C. § 405(g).
support her jurisdictional argument, the Commissioner
provided a declaration from Kathie Hartt, the Chief of Court
Case Preparation and Review Branch 2 of the Office of
Appellate Operations, Office of Disability Adjudication and
Review. [ECF No. 18-2]. Ms. Hartt’s declaration notes
that the Commissioner issued a fully favorable decision to
Ms. Everett in 2003, and that Ms. Everett has never requested
review of that decision by the Appeals Council. Id.
the precise nature of Ms. Everett’s allegations is
murky, it is clear that she does not dispute the award of
benefits, but she disputes the overpayment and the reduction
in her benefit payments. One of the documents attached to Ms.
Everett’s filing is a printout from the
“mySocialSecurity” website indicating in the
“Status” section that, “A waiver or appeal
is associated with part or all of this overpayment.”
[ECF No. 8-5] at 1. In response, the Commissioner has now
provided a declaration from Joan Heller, the Team Leader for
the Retirement, Survivors, Medicare and Disability Team in
the Center for Disability and Programs Support in the
Philadelphia Regional Office. [ECF No. 21-1]. Ms. Heller
explains that Ms. Everett had been receiving retirement
benefits under two different names and two different Social
Security numbers. Id. Moreover, during a time frame
in which she received disability benefits under one Social
Security number, Ms. Everett also had earnings from work
under the other Social Security number. Id.
Ultimately, when the benefits were terminated, combined, and
recalculated to take into account the earnings records, Ms.
Everett’s total monthly benefit amount was reduced.
Id. The SSA also determined that Ms. Everett owed an
overpayment of $134, 476.00, in part as a result of the fact
that she was working while receiving disability benefits.
Id. The letter regarding the overpayment was mailed
to Ms. Everett, but was returned as undeliverable.
Id. According to Ms. Heller, the SSA has not yet
sought recovery of the overpayment, but has placed the
overpayment in “protest” status due to an ongoing
investigation by the Office of Inspector General.
Id. There is no evidence that Ms. Everett filed any
timely appeals of any SSA decisions. Id. If Ms.
Everett in fact wants to appeal those decisions but was
unable to timely appeal because she did not receive the
notices that were sent, she may seek review at the SSA and
explain her reasons for missing the deadline.
Everett also alleges that a Social Security employee took
actions to “block” her appeals. Ms. Heller
responded that the SSA has no evidence of any unauthorized
changes to her account by any current or former SSA employee.
[ECF No. 21 at ¶ 27].
light of the information in Ms. Heller’s declaration,
there are no material jurisdictional facts in dispute, and it
is clear that Ms. Everett did not exhaust her administrative
remedies. Accordingly, I recommend that the
Commissioner’s motion to dismiss [ECF No. 18] be
granted, and that this case be closed. I direct the Clerk to
mail a copy of this Report and Recommendations to Plaintiff
at the address listed on the docket. Any objections to this