UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) Joel C. Belmonte, ) ) Plaintiff, ) ) v. ) Civil No. 16-1077-APM ) Carolyn W. Colvin, ) ) Defendant. ) _________________________________________ )

MEMORANDUM OPINION

Plaintiff Joel C. Belmonte seeks “judicial review of wage earner’s qualification for Social

Security benefits.” Compl. [Dkt. 1]. Defendant, in her capacity as Acting Commissioner of the

Social Security Administration, has moved to dismiss the complaint for lack of subject matter

jurisdiction based on Belmonte’s failure to exhaust administrative remedies. Belmonte has not

complied with the court’s order to respond to the Commissioner’s motion by October 24, 2016

[Dkt. 6], and he has not requested additional time to respond. Therefore, the court finds that

Belmonte has conceded the Commissioner’s documented facts that he failed to complete the

administrative process and obtain a final agency decision. See Br. in Supp. of Mot. to Dismiss at

3-5 [Dkt. 5]; cf. Grimes v. District of Columbia,

(D.C. Cir. 2015) (holding that,

on a motion for summary judgment when no opposition brief is filed, the district court may treat

the movant’s factual assertions as conceded). That failure warrants dismissal but not on

jurisdictional grounds. For the reasons explained below, the court will grant the Commissioner’s

motion but on the ground that the complaint fails to state a claim upon which relief can be granted. The Social Security Act authorizes judicial review of a “final decision of the Commissioner

of Social Security made after a hearing to which [the plaintiff] was a party[.]”

(g).

Section 405(g) has both a “jurisdictional and non-jurisdictional exhaustion component[ ].” Cost

v. Soc. Sec. Admin.,

(D.D.C. 2011), aff'd, No. 11-5132,

(D.C. Cir. Dec. 2, 2011) (citing Shalala v. Ill. Council on Long Term Care, Inc.,

(2000); Bowen v. City of New York,

(1986)). The requirement to present the

claim to the agency is jurisdictional; the requirement to complete the administrative process is not.

Therefore, a “motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction is

inappropriate where a defendant claims that a plaintiff failed to comply with only the non-

jurisdictional exhaustion requirement.”

The Commissioner’s motion is premised on Belmonte’s failure to complete the

administrative process by “appeal[ing] . . . the Agency’s determinations” and obtaining “a

judicially reviewable” final decision. Br. at 3. Belmonte has offered nothing to the contrary.

Consequently, the court concludes that Plaintiff has failed to state a viable claim under the Social

Security Act and will grant the Commissioner’s Motion to Dismiss. A separate Order accompanies

this Memorandum Opinion.

Dated: November 7, 2016 Amit P. Mehta United States District Judge

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