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O'Neal v. Berryhill

United States District Court, N.D. Alabama, Northeastern Division

January 16, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         This 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[1] 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.[2]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).


         Under 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.

         Once 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.

         After 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).

         However, 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).

         A court 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)).


         Viewing 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.

         Plaintiff 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 that determination.

         O'Neal 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 26, 2012.[3]

         On 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.

         Between 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 ...

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