Kent C. Norman, Also Known As Robert H. Ketchum, in Behalfof Himself and All Other Similarly Situated,plaintiff-appellant, v. United States Department of Health & Human Services,secretary Of, Individually and in Her Officialcapacity, Defendant-appellee, 13 F.3d 406 (10th Cir. 1993)Annotate this Case
Dec. 20, 1993
Before SEYMOUR, ANDERSON, and EBEL, Circuit Judges.
ORDER AND JUDGMENT1
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
Kent C. Norman, a/k/a Robert Ketchum, brought this pro se action against the Secretary challenging an administrative decision to reduce his Supplemental Security Income (SSI) benefits. The reduction was allegedly made because Mr. Norman had received a sum of money in settlement of a lawsuit. Mr. Norman is the subject of a district court order restricting his access to the courts. See Ketchum v. Cruz, 775 F. Supp. 1399 (D. Colo. 1991), aff'd 961 F.2d 916 (1992). Pursuant to this order, Mr. Norman's complaint was forwarded to a magistrate judge to consider whether it should be accepted for filing. See id. at 1407. The magistrate judge recommended that leave to file be denied, concluding that the complaint failed to allege any statutory basis for a waiver of sovereign immunity by the United States. The district court adopted the recommendation and denied Mr. Norman leave to file an appeal in forma pauperis. Mr. Norman has filed a motion to proceed in forma pauperis with this court, which we deny for the following reasons.
Mr. Norman challenges the Secretary's decision to reduce his SSI benefits. Judicial review of this administrative decision is provided by 42 U.S.C. 1383(c) (1988); see also 42 U.S.C. 405(g). Before such review is available, however, a claimant must ordinarily exhaust administrative remedies. See Wilson v. Secretary, 671 F.2d 673, 677 (1st Cir. 1982); see also Marcus v. Sullivan, 926 F.2d 604, 612 & n.3 (7th Cir. 1991). It appears from the record that Mr. Norman began this process by obtaining administrative reconsideration of the initial adverse decision. See rec., vol. I, at 5. He apparently did not, however, continue the process by timely requesting a hearing before an administrative law judge. Under section 1383(c) (3), we may only review a final determination after a hearing.
Mr. Norman alleges that he called the SSI office and was told over the phone that he could not appeal. The applicable regulations specifically require the agency to inform Mr. Norman in the written reconsideration decision that he has the right to a hearing before an ALJ and to inform him of the time period within which he must request that hearing. See 20 C.F.R. 416.1421; 416.1422 (1993). Mr. Norman has not included the written reconsideration decision in the record. His bare conclusory allegation that he was orally misinformed is not sufficient to support an inference that the Secretary did not provide the requisite written notice. Mr. Norman has thus failed to show that he has exhausted his administrative remedies or that his failure to exhaust should be waived, see Wilson, 671 F.2d at 677-78.
The motion to proceed informa pauperis is denied.
This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir. R. 36.3