                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

_______________________________________
                                       )
VIRGINIA JAMES,                        )
                                       )
                  Plaintiff,           )
                                       )
      v.                               )                Civil Action No. 10-1944 (RBW)
                                       )
ROBIN WELLS,                           )
                                       )
                  Defendant.           )
_______________________________________)


                                 MEMORANDUM OPINION

       This matter is before the Court on a motion to dismiss filed on behalf of the

Commissioner of Social Security (“Commissioner”).1 For the reasons discussed below, the

motion will be granted.

                                      I. BACKGROUND

       In 1995, an administrative law judge (“ALJ”) determined that the plaintiff was entitled to

receive disability insurance benefits (“DIB”), see Mot. to Dismiss and Supporting Mem. of P. &

A. (“Def.’s Mem.”), Ex. A (Notice of Decision – Fully Favorable dated July 3, 1995), as of

March 2002, see Compl., Ex. (Letter to LaVonnia Johnson, Office of Eleanor Holmes Norton,


       1
                  The named defendant, Robin Wells, is an employee of the Social Security
Administration. Mot. to Dismiss and Supporting Mem. of P. & A. at 1 n.1. It does not appear,
however, that the plaintiff brings any claim against Ms. Wells in her individual capacity. The
plaintiff acknowledges that she named Ms. Wells in error, and explains that her “intention was to
file . . . against [the] Social Security [Administration].” Mot. for My Claim Not to be Dismissed
at 6 (page numbers designated by the Court); see id. at 12. The Court proceeds as if plaintiff
brought this action under 42 U.S.C. § 405(g) against the Commissioner of Social Security. In
this Memorandum Opinion, the Court will refer to the defendant as the “Commissioner.”

                                                1
U.S. House of Representatives, from Lorna Walters, District Manager, Philadelphia Region,

Social Security Administration, dated September 15, 2006) at 1. Payments commenced in

September 1995, and the plaintiff received $12,849.68 to “covere[]back payments due from

03/92 to 09/95 on the Social Security Disability Record.” Compl., Ex. at 1. In 2001, the Social

Security Administration (“SSA”) learned “that certain years of [the] plaintiff’s earnings were not

included in calculating her monthly DIB payment.” Def.’s Mem. at 2. The plaintiff had been

receiving a monthly benefit of $499.00, and beginning in May 2001 her monthly benefit was set

to increase to $513.00 “to account for her increased earnings in prior years.” Id.; see id., Ex. C-1

(Letter to plaintiff from Carolyn Colvin, Deputy Commissioner for Operations, SSA, dated April

12, 2001). In April 2001, the plaintiff received a total of $1,833.00, an amount which included

both a “one-time back payment” of $1334.00 and her monthly benefit of $499.00.2 Def.’s Mem.

at 2.

        The plaintiff claims that she was entitled to receive her regular monthly benefit payment

of $499.00 in April 2001 in addition to the one-time back payment of $1,833.00. Compl. at 5.

She brings this action to recover not only the $499.00 payment allegedly owed for April 2001,

but also an award of $100,000.00 as compensatory damages “on the basis of negligence on the

part of Social Security.” Compl., Ex. [Dkt. #1-1] at 1.

        After this litigation commenced, the Commissioner “found an untimely Request for

Reconsideration mailed by plaintiff [postmarked] July 10, 2001.” Def.’s Mem. at 2-3; see id.,



        2
               SSA records reflect that the plaintiff’s “regular monthly payment for $499.00 was
deposited to her checking account on April 3, 2001; a $1334.00 underpayment was deposited on
April 6, 2001, and her new benefit payment amount of $513.00 was deposited on May 3, 2001.”
Def.’s Mem., Ex. D (Fact Sheet) at 1.

                                                 2
Ex. E-1 (Request for Reconsideration dated June 29, 2001). Although a request for

reconsideration ordinarily must be filed no later than 60 days after the claimant’s receipt of the

notice of the Commissioner’s initial decision, see 20 C.F.R. § 404.909(a)(1), the Commissioner

found good cause for the late filing, see 20 C.F.R. § 404.911, because he “did not issue [to the]

plaintiff a written notice denying her Request for Reconsideration on untimeliness grounds.”

Def.’s Mem. at 3. Instead, the Commissioner has reviewed the matter and found that “there was

no underpayment of benefits.” Id. at 3; see id., Ex. F-2 (Letter from Elaine Garrison-Daniels,

Assistant Regional Commissioner for Processing Center Operations, Mid-Atlantic Program

Service Center, dated February 17, 2011). The Commissioner so notified the plaintiff in writing,

and his letter included notice of her right to request a hearing before an ALJ. Id., Ex. F-3.

                                        II. DISCUSSION

       A federal district court has jurisdiction over a civil case challenging a final decision of

the Commissioner. See 42 U.S.C. § 405(g). This statute in relevant part provides:

               Any individual, after any final decision of the Commissioner of
               Social Security made after a hearing to which [she] was a party,
               irrespective of the amount in 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 court shall have power to enter, upon the pleadings and transcript
               of the record, a judgment affirming, modifying, or reversing the
               decision of the Commissioner of Social Security, with or without
               remanding the cause for a rehearing.

Id. The statute does not define the term “final decision.” Instead, “its meaning is left to the

Secretary [of the Department of Health and Human Services] to flesh out by regulation.”


                                                 3
Weinberger v. Salfi, 422 U.S. 749, 767 (1975).

       SSA regulations set forth a four-step process by which a claimant achieves a final

decision suitable for judicial review. See 20 C.F.R. § 404.900(a) (listing steps of administrative

review process); see also Ryan v. Bentsen, 12 F.3d 245, 247 (D.C. Cir. 1993) (“The Secretary

renders a ‘final decision’ after a benefit claimant receives an initial determination of his right to

benefits by the regional SSA office, asks that office to reconsider its determination, requests a

hearing before an administrative law judge (ALJ) and requests Appeals Council review of the

ALJ’s decision.”).

       A determination about the amount of a person’s benefits is an initial determination, 20

C.F.R. § 404.902(c), which “is binding unless [the claimant] request[s] a reconsideration within

the stated time period,” 20 C.F.R. § 404.905. A claimant may request reconsideration in writing

within 60 days of her receipt of notice of the initial determination. 20 C.F.R. § 404.909(a). A

determination on reconsideration is binding “unless . . . [the claimant] requests a hearing before

an [ALJ].” 20 C.F.R. § 404.921(a). A request for a hearing must be made in writing, 20 C.F.R.

§ 404.933(a), and filed within 60 days of the claimant’s receipt of the notice of the decision on

reconsideration, 20 C.F.R. § 404.933(b)(1). The ALF “shall issue a written decision that gives

the findings of fact and the reasons for [his] decision,” 20 C.F.R. § 404.953(a), and his decision

is binding unless the claimant requests a review by the Appeals Council, 20 C.F.R. § 404.955(a).

Such a request must be filed, in writing, within 60 days of the claimant’s receipt of the notice of

the ALJ’s hearing decision. 20 C.F.R. § 404.968(a)(1). “The Appeals Council’s decision . . . is

binding unless [the claimant] . . . file[s] an action in Federal district court,” and the action must

be filed within 60 days after receipt of the notice of the Appeals Council’s action. 20 C.F.R. §


                                                   4
404.981.

       Ordinarily, a plaintiff’s failure to exhaust her administrative remedies at the agency level

prior to filing a lawsuit in federal district court would be a basis for dismissal of the lawsuit. See

Almaklani v. Sullivan, No. 90-754, 1990 WL 179595, at *1 (D.D.C. 1990) (dismissing for lack of

subject matter jurisdiction the complaint of applicants for survivors’ benefits who had not

exhausted administrative remedies following denial of their initial claim). Plaintiff contends that

she has made several contacts with SSA personnel and others, see Pl.’s Opp’n at 2-4, seeking the

additional benefits she believed were owed to her. She also asserts that she has not received

credit for “jobs that [she] worked and paid into Social Security that [were] not used to compute

[her] benefits.” Id. at 10-11. She challenges amounts deducted “to pay for Medicare.” Id. at 12.

According to the plaintiff, she has “used all the resources available to [her] when in fact [the]

Social Security Administration has been negligent for not sending [her] Administrative Appeals

rights info” and for “not responding to [her] reconsideration” request. Id. at 6.

       In the Reply, the Commissioner acknowledges the agency’s failure to respond to the

plaintiff’s 2001 request for reconsideration. Reply Mem. in Supp. of Def.’s Mot. to Dismiss

(“Reply”) at 1. Further, he notes that the plaintiff “disputes whether she should have received an

additional $499.00 from the [SSA] in 2001 and whether she should be credited for additional

work that was not reported to the [SSA].” Id.; see Pl.’s Opp’n, Attach. 20 (Social Security Work

History). Such matters, the Commissioner argues, “are the types of issues that would benefit by

their further development at a hearing before an ALJ.” Id. The Court concurs.

       The Supreme Court instructs that:

               Exhaustion is generally required as a matter of preventing premature
               interference with agency processes, so that the agency may function

                                                  5
               efficiently and so that it may have an opportunity to correct its own
               errors, to afford the parties and the courts the benefit of its experience
               and expertise, and to compile a record which is adequate for judicial
               review.

Weinberger v. Salfi, 422 U.S. at 765 (citation omitted). For the most part, the parties offer

correspondence to support of their respective positions, and the current record is not one on

which the Court could decide the merits of the complaint. Cf. Craigg v. Russo, 667 F.2d 153,

160 (D.C. Cir. 1981) (finding that, in the circumstances of that case, “it manifestly would be

inappropriate for us to undertake to decide the issues without the benefit of an administrative

decision by the federal agency charged with implementing the federal statute that is central to the

case”). Now that the Commissioner has acted on the plaintiff’s 2001 request for reconsideration,

the plaintiff may proceed with the next step of the administrative process – a hearing before an

ALJ. A hearing affords the plaintiff an opportunity to present evidence supporting her claims, as

well as an opportunity for the SSA to address those claims.

       The Court will grant the Commissioner’s motion to dismiss and, as he suggests, will

“direct[] that the plaintiff should be granted a hearing before an [ALJ] on the issues that she has

raised in this case.” Reply at 2. An Order accompanies this Memorandum Opinion.



                                                               /s/
DATE: September 24, 2011                           REGGIE B. WALTON
                                                   United States District Judge




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