Opinion
19-cv-62366-KMM
01-24-2022
ERIC JOHN MERCER, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
Eric John Mercer, PRO SE
Eric John Mercer, PRO SE
ORDER ON REPORT AND RECOMMENDATION
K. MICHAEL MOORE, UNITED STATES DISTRICT JUDGE
THIS CAUSE came before the Court upon Defendant, Kilolo Kijakazi's, Acting Commissioner of Social Security, (the “Commissioner”) Motion to Dismiss Portions of Plaintiff's Amended Complaint. (“Mot.”) (ECF No. 35). Therein, the Commissioner moves to dismiss several claims in Plaintiff's Amended Complaint because they either fail to state a claim or because Plaintiff failed to exhaust her administrative remedies. Mot. at 1. Specifically, the Commissioner seeks to dismiss the claims in the Amended Complaint to the extent any claim challenges (1) an agency decision finding that Plaintiff's disability ceased in 2013 and (2) an agency overpayment decision. Id. at 2. The Commissioner does not seek to dismiss the Amended Complaint to the extent it challenges the May 15, 2019 agency decision. Id. at 2 n.1. Plaintiff filed a document entitled “Reply to Defendants answer, Jurisdictional Exhibits and Plaintiffs request for most recent motion file-ed by Plaintiff to still be valid motion for judge to consider along with this Plaintiffs reply, ” which the Court construes as a Response to the Commissioner's Motion to Dismiss. (“Resp.”) (ECF No. 36). The Commissioner did not file a Reply.
Although “Andrew Saul and/or Nancy Berryhill” are named as the Commissioner of the Social Security Administration, (ECF No. 23) at 2, Kilolo Kijakazi is now the Acting Commissioner of the Social Security Administration and is automatically substituted as Defendant pursuant to Federal Rule of Civil Procedure 25(d). Fed.R.Civ.P. 25(d).
Pursuant to the directive of the Clerk of Court, the matter was referred to United States Magistrate Judge Patrick M. Hunt “for a ruling on all pre-trial, non-dispositive matters and for a Report and Recommendation on any dispositive matters.” (ECF No. 2). On November 17, 2021, Magistrate Judge Hunt issued a Report and Recommendation (“R&R”) (ECF No. 37) recommending that the Commissioner's Motion to Dismiss (ECF No. 35) be granted in part and denied in part. See generally R&R. Specifically, Magistrate Judge Hunt recommends that the Commissioner's Motion to Dismiss be granted to the extent it requests that any claim stemming from the 2015 overpayment determination be dismissed, and that the Commissioner's Motion otherwise be denied. See generally Id. To the extent Plaintiff requests, in the Response, to reopen previous motions, Magistrate Judge Hunt also recommends that those requests be denied. Id. at 5 n.2.
Neither Party filed Objections to the R&R and the time to do so has. The matter is now ripe for review. As set forth below, the Court ADOPTS the R&R.
The Court assumes familiarity with the procedural history of this case.
The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). As set forth in the R&R, Magistrate Judge Hunt finds that: (1) any claim predicated on the agency overpayment decision is untimely because there is no evidence that Plaintiff appealed that decision pursuant to the administrative review process, thus this Court lacks jurisdiction to the extent the Amended Complaint challenges the overpayment decision, R&R at 5-6, and (2) accepting the facts in the Amended Complaint as true, Plaintiff sufficiently rebuts the Commissioner's contention that Plaintiff received notice of the 2013 disability cessation decision, thus that claim survives the Commissioner's Motion to Dismiss. Id. at 6.
The Court agrees with Magistrate Judge Hunt's findings.
Accordingly, UPON CONSIDERATION of the R&R, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that the R&R (ECF No. 37) is ADOPTED. It is FURTHER ORDERED that the Commissioner's Motion to Dismiss (ECF No. 35) is GRANTED IN PART and DENIED IN PART.