Frank Nellom v. Commissioner of Social Security

• Court: Court of Appeals for the Third Circuit
• Decided: June 28, 2024
• Docket: 23-3215
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 23-3215 __________

FRANK NELLOM, Appellant

v.

COMMISSIONER OF SOCIAL SECURITY ___________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. Civil Action No. 2:23-cv-01268) Magistrate Judge: Honorable Richard A. Lloret ____________________________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) June 20, 2024 Before: KRAUSE, MATEY, and CHUNG, Circuit Judges

(Opinion filed June 28, 2024) ___________

OPINION* ___________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM

Appellant Frank Nellom, proceeding pro se, appeals from the District Court’s

dismissal of his complaint without prejudice for failure to exhaust administrative

remedies. For the following reasons, we will affirm.

In October 2017, Nellom was found to be disabled in connection with a claim for

supplemental security income. Nellom was incarcerated in April 2019, which triggered

the suspension of his eligibility for benefits. See 20 C.F.R. § 416.1325. Nellom was

released from prison on April 10, 2021, after which he filed a new application for

supplemental security income, which was denied. Nellom subsequently filed a request

for a hearing by an Administrative Law Judge (“ALJ”). However, before that hearing

took place, Nellom filed a complaint in the District Court against the Commissioner

alleging that, in light of the October 2017 disability finding, his application for benefits

should not have been denied. See D.Ct. ECF No. 2 at 2.

The Commissioner filed a motion to dismiss, arguing that Nellom failed to exhaust

his administrative remedies after the denial of his new application for benefits. Nellom

filed two motions for summary judgment, arguing that the denial of his application

violated res judicata, and that he was entitled to the reinstatement of the disability

benefits originally awarded in October 2017. Concluding that it lacked subject matter

jurisdiction over the case, the District Court denied Nellom’s motions for summary

judgment and dismissed the complaint without prejudice. Nellom filed a timely appeal.

2 We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise

plenary review over the District Court’s dismissal of Nellom’s complaint for lack of

subject matter jurisdiction. Tobak v. Apfel, 195 F.3d 183, 185 (3d Cir. 1999).

The jurisdiction of district courts to review Social Security benefits cases is set out

by 42 U.S.C. § 405(g), which provides that an “individual, after any final decision of the

Commissioner of Social Security made after a hearing . . . may obtain a review of such

decision by a civil action.” 42 U.S.C. § 405(g). Without a “final decision,” a district

court lacks subject matter jurisdiction to review a Social Security benefit determination.1

See Fitzgerald v. Apfel, 148 F.3d 232, 234 (3d Cir. 1998). Pursuant to the relevant

regulations, a “final decision” is rendered after a benefits claimant has completed a four-

step administrative review process consisting of an initial determination, reconsideration,

a hearing by an ALJ, and review by the Appeals Council. See Smith v. Berryhill, 139 S.

Ct. 1765, 1772 (2019) (citing 20 C.F.R. § 416.1400).

In moving to dismiss Nellom’s complaint, the Commissioner submitted a

declaration that Nellom’s request for a hearing before an ALJ was still pending, and that

an ALJ had not yet issued a decision. See D.Ct. ECF No. 13-1 at 3. Nellom has not

disputed that he failed to obtain ALJ review of the denial of his most recent application

1 The requirement that there be a final decision “consists of two elements, only one of which is purely ‘jurisdictional’ in the sense that it cannot be ‘waived’ by the Secretary in a particular case.” Matthew v. Eldridge, 424 U.S. 319, 328 (1976). Although the specific “administrative remedies prescribed by the Secretary” may be waived, “[t]he nonwaivable elements is the requirement that a claim for benefits shall have been presented to the Secretary.” Id.

3 for benefits. Instead, he argues that such review is not required because he is seeking to

reinstate the October 2017 grant of benefits, and not appeal the recent denial of his new

application. He asks this Court to affirm the 2017 award of benefits. See 3d Cir. ECF

No. 8 at 2.

Despite his assertions to the contrary, Nellom’s filings make clear that his

complaint did in fact seek to challenge the denial of his most recent application for

benefits, which he filed after his release from prison. Even if Nellom was seeking to

reinstate his prior determination of disability through that new application, he has not yet

obtained a final decision from the Commissioner, who could still grant the relief he

seeks.2

A litigant may not be required to exhaust his administrative remedies where his

claim is “collateral” to a claim for benefits or where he would be irreparably injured if

exhaustion were required.3 See Bowen v. City of New York, 476 U.S. 467, 483 (1986).

Because neither situation applies here, the District Court properly concluded that it

lacked jurisdiction to consider Nellom’s claim.

2 As noted by the Appellee, because Nellom was incarcerated for more than 12 consecutive months, his eligibility for benefits was terminated. See 20 C.F.R. §§ 416.211, 416.1325, 416.1335. The regulations “provide for no … reinstatement where a recipient’s eligibility has been terminated after 12 consecutive months of suspension.” Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1172 (9th Cir. 2008); see also 42 U.S.C. § 1383(j)(1) (instructing, subject to an exception not applicable here, that a suspension for 12 months ends an individual’s eligibility for benefits and requires a new application). 3 Nellom has not raised any colorable constitutional claim that could confer federal jurisdiction despite the lack of a final decision. See Califano v. Sanders, 430 U.S. 99, 108–09 (1977).