O'Connor, Daniel v. Social Security Administration

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DANIEL O’CONNOR,
Plaintiff, OPINION AND ORDER
v.
25-cv-883-wmc
SOCIAL SECURITY ADMINISTRATION,
Defendant.
Representing himself, plaintiff Daniel O’Connor filed a complaint against the Social
Security Administration (SSA), claiming that it violated his civil rights in connection with
a monthly benefits payment that was issued to plaintiff’s mother as his representative
payee. (Pl.’s Compl. (dkt. #1, at 4).) Shortly after the case was filed, SSA Commissioner
Frank Bisignano filed a motion to dismiss for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6) or, alternatively, for summary judgment under Rule 56. (Dkt.
#5.) Because plaintiff is proceeding without prepayment of the filing fee, the court is also
obligated to screen the complaint and dismiss any claim that is frivolous, malicious, fails
to state a claim upon which relief may be granted, or seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). The court is further obligated
to dismiss an action if at any time it determines that subject-matter jurisdiction is lacking.
Fed. R. Civ. P. 12(h)(3). For the reasons explained below, the court will dismiss the
complaint and close this case. Therefore, defendant’s motion is moot.
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FACTUAL ALLEGATIONS1
Plaintiff Daniel O’Connor filed this action against the SSA on October 28, 2025,
for refusing to comply with his demand to remove his mother -- formerly his court-
appointed legal guardian -- as the representative payee for his social security benefits
payments. (Pl.’s Compl. (dkt. #1, at 4).) In particular, plaintiff claims that the SSA
wrongfully issued his monthly payment for May 2025 to his mother, which deprived him
of those funds. (Id.) Noting that he is no longer under a legal guardianship, plaintiff
contends that the SSA violated his rights as “a legally competent adult” by continuing to
issue those benefits payment to his mother absent his consent. (Id.)
Initially, plaintiff asked the court to: (1) order the SSA to comply with his demand
and to obtain his consent for any future change of payee status; (2) order the SSA to cease
requiring interviews as a condition of his receiving benefits owed; and (3) award
compensatory damages for the missed payment. (Id. at 5.) However, plaintiff reports that
the SSA has since restored him as payee of his social security payments. (Dkt. #8, at 5.)
Accordingly, he now seeks relief in the form of an assurance from SSA that it will not
remove him as payee again without his consent. (Id.)
OPINION
I. Exhaustion of Administrative Remedies
Defendant SSA has construed plaintiff’s primary claim as one for judicial review of
1 The facts in this section, which are taken as true for purposes of this opinion, are from plaintiff’s
complaint and his response to the defendant’s motion to dismiss. (Dkts. #1, #8.) Because plaintiff
represents himself, his pleadings are held to a less stringent standard than those drafted by lawyers.
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
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a decision related to his benefits payments and argues that plaintiff’s complaint must be
dismissed for failing to exhaust his administrative appeal rights before seeking judicial
review under the Social Security Act, 42 U.S.C. § 405. Specifically, § 405(g) only
authorizes judicial review of “final” agency decisions as follows:
Any individual, after any final decision of the Commissioner of Social
Security made after a hearing to which he was a party, irrespective of the
amount in controversy, may obtain a review of such decision by a civil action
commenced within sixty days after the mailing to him of such notice
of such decision or within such further time as the Commissioner of Social
Security may allow.
42 U.S.C. § 405(g) (emphasis added). Judicial review is further limited by § 405(h), which
states:
No findings of fact or decisions of the Commissioner of Social Security shall
be reviewed by any person, tribunal, or governmental agency except as herein
provided. No action against the United States, the Commissioner of Social
Security, or any officer or employee thereof shall be brought under section
1331 or 1346 of Title 28, United States Code, to recover on any claim arising
under this subchapter.
42 U.S.C. § 405(h). Therefore, judicial review is only permitted in accordance with
§ 405(g), which requires a “final decision” by the Commissioner. Smith v. Berryhill, 587
U.S. 471, 478-79 (2019).
More specifically, SSA regulations require a four-step administrative review process
before an individual can obtain a judicially-reviewable final decision. 20 C.F.R. §§
404.900(a), 416.1400(a). The administrative review process begins with an initial
determination. 20 C.F.R. § 416.1400(a)(1). If dissatisfied with the initial determination,
the claimant may seek reconsideration. 20 C.F.R. § 416.1400(a)(2). If dissatisfied with
the reconsidered determination, the claimant may request a hearing before an
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administrative law judge. 20 C.F.R. § 416.1400(a)(3). If still dissatisfied with the result
of the hearing, the claimant may request an appeal from the Appeals Council. 20 C.F.R.
§ 416.1400(a)(4). Only after receiving a decision or a denial for a request for review from
the Appeals Council does the Commissioner’s decision become final, enabling the claimant
to request judicial review in a federal district court. See 20 C.F.R. § 416.1400(a)(5).
Failure to exhaust is an affirmative defense, which the defendant must prove. Davis
v. Mason, 881 F.3d 982, 985 (7th Cir. 2018). While plaintiff neither has to allege that he
presented his claim to the SSA through proper administrative channels, nor that the SSA
has issued a final decision regarding his dispute, defendant has provided a declaration from
Luis Flores, District Manager for the SSA Madison Field Office, who avers that he was
unable to locate any of plaintiff’s records with the information provided, because plaintiff
has not provided necessary identifying information, such as a Social Security number or
Beneficiary Control Number. (Flores Decl. (dkt. # 6) ¶¶ 1, 5).) The court may properly
consider this declaration in deciding this motion to dismiss because the existence of a final
agency decision is central to a plaintiff’s complaint against the SSA. Carradine v. Social
Security Admin., No. 24-cv-1007, 2024 WL 5245234, at *2 (E.D. Wis. Dec. 30, 2024);
Ujoh v. Potter, No. 09-cv-343, 2009 WL 4800207, at *2 (S.D. Ill. Dec. 10, 2009).
Therefore, defendant argues that this case must be dismissed because plaintiff did not
exhaust administrative remedies as a prerequisite to judicial review under § 405(g).
In response, plaintiff concedes that he bypassed an available administrative remedy
to challenge the designation of his representative payee, but explains that he received a
letter in “early 2025,” representing that SSA had decided to name plaintiff’s mother as his
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representative payee and that he missed the two-week window to appeal after failing to
check his mail for three or four weeks.2 (Dkt. #8, at 4.) Thus, when plaintiff went to the
local SSA field office, demanding his mother’s removal as representative payee, but his
request was refused, plaintiff was then reportedly told that he had “exhausted all of [his]
options” since his avenue for an appeal had already passed. (Id. at 6.) Because plaintiff
acknowledges that he did not comply with procedures by pursuing an appeal before his
deadline to do so expired, he failed to exhaust this available remedy and any claim under
§ 405(g) is procedurally barred from consideration. Woodford v. Ngo, 548 U.S. 81, 93
(2006).
Although plaintiff argues further that exhaustion would be futile because he has
been reinstated as his own payee and there are now no more appeals available (dkt. #8, at
6), the fact that plaintiff has been restored as the direct payee of his benefits raises a
different issue. Plaintiff’s only remaining request for relief is in the form of an assurance
from the SSA that they will not remove him as payee again without his consent. (Dkt. #8,
at 6.) However, this request asks the court to intervene prospectively regarding future
actions by the SSA. To the extent that plaintiff is concerned that he will be removed as
payee again, he may address those concerns directly to the SSA. See Carradine v. Social
Security Admin., No. 24-cv-1007, 2024 WL 5245234, at *6 (E.D. Wis. Dec. 30, 2024)
(finding that plaintiff’s requested relief -- that the SSA not share any of plaintiff’s
unauthorized health information -- was prospective and should be handled between
2 As defendant notes, the address plaintiff has provided is for the Dane County Wisconsin Job
Center. (Flores Decl. (dkt. #6) ¶ 4.) Thus, it appears that plaintiff is homeless.
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plaintiff and the SSA when there was no evidence of an ongoing concern). Thus, whether
exhausted or not, plaintiff no longer has an actionable claim in connection with his benefits
payments or his payee status, and his complaint is subject to dismissal for lack of
jurisdiction. See Simic v. City of Chicago, 851 F.3d 734, 738 (7th Cir. 2017) (noting for a
plaintiff to have standing for prospective injunctive relief, he “must face a ‘real and
immediate’ threat of future injury as opposed to a threat that is merely ‘conjectural or
hypothetical’”) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)).
II. Failure to State a Claim
Lastly, defendant argues that the complaint must be dismissed because plaintiff has
otherwise failed to plead a constitutional tort or civil rights claim. (Dkt. #5, at 6.)
Plaintiff, who submitted his claims in a form complaint for use by a self-represented, non-
prisoner litigants asserting civil rights claims, checked a box on the form indicating that he
is bringing “a Bivens claim.” (Pl.’s Compl. (dkt. #1) at 3 ¶ 2A.) In Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the U.S. Supreme Court
recognized an implied private cause of action for damages against federal officers alleged
to have violated a citizen’s constitutional rights. Having withdrawn his initial claim for
damages, that claim is moot as well. In any event, neither the United States nor a federal
agency are a proper defendant in a Bivens suit. See Kaba v. Stepp, 458 F.3d 678, 687 (7th
Cir. 2006) (“[a] Bivens action may not be brought against the United States or a federal
agency”). Nor is there a recognized claim under Bivens that extends to the facts of this
case. See Ziglar v. Abassi, 582 U.S. 120, 135 (2017) (noting that a Bivens cause of action
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has been recognized only in limited circumstances and making clear that “expanding the
Bivens remedy is now a ‘disfavored’ judicial activity”).
Absent a viable claim, the court will dismiss this action for lack of jurisdiction
pursuant to Fed. R. Civ. P. 12(h)(3).
ORDER
IT IS ORDERED that:
1) Defendant’s motion to dismiss and alternative motion for summary judgment
(dkt. # 5) is MOOT.
2) The complaint filed by Daniel O’Connor (dkt. #1) is DISMISSED without
prejudice for lack of jurisdiction.
3) The clerk of court is directed to enter judgment accordingly and to close this
case.
Entered this 20th day of March, 2026.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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