United States District Court, N.D. Alabama, Northeastern Division
MICHAEL PUTNAM UNITED STATES MAGISTRATE JUDGE
matter is before the court on the Motion to Dismiss Plaintiff
Wendell O'Neal's First Amended Complaint, filed by
the defendant Commissioner of Social Security on August 15,
2018. (Doc. 36). The Commissioner of Social Security
(“Commissioner”) argues that Plaintiff's
First Amended Complaint should be dismissed pursuant to Federal
Rule of Civil Procedure 12(b)(1) because the plaintiff has
failed to establish that the court has subject matter
jurisdiction over his claims. (Doc. 36, p.1). The court
construes the motion to dismiss as a motion for summary
judgment because the motion is supported by materials outside
of the pleadings and it involves issues that are intertwined
with the merits of the plaintiff's claims.The court informed
the pro se plaintiff of the nature of summary
judgment, provided him with a detailed notice of Rule 56(c),
and offered him a chance to supplement his response. (Doc.
39) (issuing notice and explanation). The matter has been
fully briefed. The parties have consented to dispositive
jurisdiction by a United States Magistrate Judge in
accordance with 28 U.S.C. § 636(c). (Doc. 37).
Federal Rule of Civil Procedure 56(a), summary judgment is
proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). The
party asking for summary judgment “always bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of
‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any' which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 47 U.S. 317, 323 (1986)
(quoting former Fed.R.Civ.P. 56(c)). The movant can meet this
burden by presenting evidence showing there is no dispute of
material fact or by showing that the nonmoving party has
failed to present evidence in support of some element of its
case on which it bears the ultimate burden of proof.
Celotex, 477 U.S. at 322-23. There is no
requirement, however, “that the moving party support
its motion with affidavits or other similar materials
negating the opponent's claim.”
Id. at 323.
the moving party has met its burden, Rule 56 “requires
the nonmoving party to go beyond the pleadings and by her own
affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,' designate
‘specific facts showing that there is a genuine issue
for trial.'” Id. at 324 (quoting former
Fed.R.Civ.P. 56(e)). The nonmoving party need not present
evidence in a form necessary for admission at trial; however,
he may not merely rest on his pleadings. Celotex,
477 U.S. at 324. “[T]he plain language of Rule 56(c)
mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Id. at 322.
the plaintiff has properly responded to a proper motion for
summary judgment, the court “shall” grant the
motion if there is no genuine issue of material fact, and the
moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). The substantive law will identify which
facts are material and which are irrelevant. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
is genuine “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Id. at 248. “[T]he judge's function is not
himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.” Id. at 246. His guide is the same
standard necessary to direct a verdict: “whether the
evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Id. at
251-52; see also Bill Johnson's Restaurants, Inc. v.
N.L.R.B., 461 U.S. 731, 745 n. 11 (1983).
the nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). The evidence
supporting a claim must be “substantial, ”
Marcus v. St. Paul Fire and Marine Ins. Co., 651
F.2d 379 (5th Cir., Unit B, 1981); a mere scintilla of
evidence is not enough to create a genuine issue of fact.
Young v. City of Palm Bay, 358 F.3d 859, 860 (11th
Cir. 2004); Kesinger ex rel. Estate of Kesinger v.
Herrington, 381 F.3d 1243, 1249-50 (11th Cir. 2004). If
the non-movant's evidence is so thoroughly discredited by
the rest of the record evidence that no reasonable
jury could accept it, the evidence fails to establish the
existence of a genuine issue of fact requiring a jury
determination. See Scott v. Harris, 550 U.S. 372,
127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007)
(“Respondent's version of events is so utterly
discredited by the record that no reasonable jury could have
believed him. The Court of Appeals should not have relied on
such visible fiction; it should have reviewed the facts in
the light depicted by the videotape.”); Lewis v.
City of West Palm Beach, Fla., 561 F.3d 1288, 1290 n. 3
(11th Cir. 2009). If the evidence is merely colorable, or is
not significantly probative, summary judgment may be granted.
Anderson, 477 U.S. at 249 (citations omitted);
accord Spence v. Zimmerman, 873 F.2d 256 (11th Cir.
1989). Furthermore, the court must “view the evidence
presented through the prism of the substantive evidentiary
burden, ” so there must be sufficient evidence on which
the jury could reasonably find for the plaintiff.
Anderson, 477 U.S. at 255. The non-movant need not
be given the benefit of every inference but only of every
reasonable inference. Brown v. City of Clewiston,
848 F.2d 1534, 1540 n. 12 (11th Cir. 1988).
may also take judicial notice of filings in its own records
and the records of other courts. “Even though a court
may take judicial notice of a ‘document filed in
another court... to establish the fact of such litigation and
related filings,' a court cannot take judicial notice of
factual findings of another court.” Grayson v.
Warden, Comm'r, Alabama DOC, 869 F.3d 1204, 1225
(11th Cir. 2017) (quoting Taylor v. Charter Med.
Corp., 162 F.3d 827, 830 (5th Cir. 1998)).
the facts in the light most favorable to the non-moving
party, in this case the plaintiff, the following facts are
relevant to the motion for summary judgment.
alleges that he first filed an application for Supplemental
Security Income (SSI) in October of 1995. He has provided no
further information about the pendency or resolution of that
application other than to say that he called and spoke to an
employee of the Commissioner at a later date, and they
disputed whether the plaintiff had ever filed an appeal.
O'Neal filed a second application for SSI on September
14, 1999. This application was denied by an Administrative
Law Judge on June 26, 2001. Plaintiff sought review by the
Appeals Council, and that request for review was denied on
September 25, 2001. He was notified of his right to file a
civil action in District Court within 60 days. There is no
indication in this record that he sought judicial review of
filed for SSI for a third time on November 21, 2001. That
claim was granted by the Commissioner, the plaintiff was
determined to be disabled, and he began receiving SSI
benefits. Upon discovering that he was not going to receive
SSI benefits back to 1995, O'Neal filed an action in the
Northern District of Alabama in 2005. See O'Neal v.
Barnhart, No. 5:05-cv-2127-VEH (N.D. Ala.). The Social
Security Administration was unable to locate the
plaintiff's file from his 1999 application, and the case
was remanded, on the Commissioner's motion to remand, so
that the relevant information could be located. The Appeals
Council remanded the claim on March 27, 2006, when the
Commissioner was unable to locate the paper file from
Plaintiff's 1999 application. The ALJ issued a favorable
decision on January 11, 2008, that found that the plaintiff
was disabled from the application date on September 14, 1999.
Consequently, O'Neal received back benefits for the time
period from September 14, 1999, through November 21, 2001,
when his subsequent application was approved. This finding
was affirmed by the District Court in an opinion dated April
January 25, 2018, the Commissioner notified O'Neal that
his disability status was going to be re-determined. On
February 22, 2018, in a telephone conversation with a Social
Security employee identified only as “Amy, ID 3009,
” O'Neal claims to have learned for the first time
that he had filed an application for SSI benefits as early as
October 1995, yet had received benefits only from September
14, 1999. The Commissioner issued a notice on March 20, 2018,
finding that the plaintiff was no longer disabled and
notifying him that he would no longer receive SSI. Plaintiff
was notified at that time that he had 60 days to request
reconsideration. O'Neal requested reconsideration, and
that request was still pending as of the last notification of
the Commissioner on June 26, 2018. Plaintiff filed this
action on March 27, 2018.
January and May of 2018, Plaintiff submitted two Freedom of
Information Act requests through an online portal and via
certified mail as part of his documentation filed in his
pending appeal. These were treated as requests for
information under the Privacy Act because the plaintiff
requested documents related to his own case. On February 1,
2018, Plaintiff visited the local Social Security office and
was given printed copies of all available electronic records
in his file. The Commissioner acknowledges that the
Plaintiff's paper file folder for matters occurring
before 2001 is lost and unavailable. Plaintiff believes that
there should have been more documents in his file, especially
documents related to treatment by Dr. Foung Lo and his
October 1995 ...