Taverniti v. Astrue

Filing 31

ORDER GRANTING: 26 MOTION to Dismiss. Signed by Judge Jeffrey S. White on 2/20/13. (jjoS, COURT STAFF) (Filed on 2/20/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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DALENA M. TAVERNITI,

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For the Northern District of California

United States District Court

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No. C 11-06659 JSW

Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of
Social Security,

ORDER GRANTING MOTION TO
DISMISS

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Defendant.
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Now before the Court is the motion to dismiss filed by Defendant Commissioner of the

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Social Security Administration’s (“Defendant”). The Court finds that this matter is appropriate

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for disposition without oral argument and it is deemed submitted. See Civ. L.R. 7-1(b).

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Accordingly, the hearing set for March 1, 2013 is HEREBY VACATED. Having carefully

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reviewed the administrative record and considered the parties’ papers and the relevant legal

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authority, and good cause appearing, the Court hereby GRANTS Defendant’s motion to

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dismiss.

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BACKGROUND
According to the undisputed record, Plaintiff Dalena M. Taverniti (“Plaintiff”) filed an

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application for Disability Insurance Benefits payments pursuant to Title II of the Social Security

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Act in March 1985, after suffering from a stroke. That application resulted in a finding of

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disability as of April 1, 1982. However, effective November 1991, the agency terminated

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Plaintiff’s disability benefits upon finding that she was working and performing substantial
gainful activity. In December 2008, however, nearly seventeen years after the termination of

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benefits, Plaintiff requested reconsideration of the termination decision. In April 2009, that

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request for reconsideration was dismissed because Plaintiff had not proffered a good cause

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statement explaining the lengthy delay in seeking review of the 1991 termination of benefits. In

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August 2009, approximately three months later, Plaintiff, now acting through a representative,

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requested a hearing. On May 28, 2010, an administrative law judge (“ALJ”) found that Plaintiff

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had failed to establish good cause for missing the deadline to request a hearing and dismissed

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her request for a hearing. The ALJ further stated that the April 2009 reconsideration

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determination remained in effect.

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Plaintiff has previously sought to appeal the various previous decisions of the agency
and the ALJ, but has failed to demonstrate that the district court may maintain jurisdiction over

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For the Northern District of California

United States District Court

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her untimely and unexhausted claims. Again, Defendant here moves to dismiss on the basis that

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the Court lacks subject matter jurisdiction to hear the merits of the reconsideration affirming the

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1991 decision to terminate disability benefits. Plaintiff claims that her due process rights have

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been violated as a result of the agency’s refusal to toll the time to seek review, as she suffered

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from mental impairment as a result of the stroke.

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The Court shall consider additional facts as relevant in the remainder of this order.

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ANALYSIS

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Defendant moves to dismiss Plaintiff’s complaint under Federal Rule of Civil Procedure

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12(b)(1) for lack of subject matter jurisdiction. Defendant asserts that Plaintiff failed to exhaust

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her administrative remedies. Defendant also moves to dismiss pursuant to Federal Rule of Civil

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Procedure 12(b)(6) for failure to state a claim due to the vague nature of her current allegations.

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A claimant may obtain review of the Commissioner’s final decision denying social

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security payments, provided the civil action is commenced in district court within 60 days of the

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mailing of the Commissioner’s decision. 42 U.S.C. § 405(g). However, in this matter, Plaintiff

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took seventeen years to seek review of the decision to terminate her disability benefits. The

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ALJ found that Plaintiff had failed to provide a good cause statement to support her untimely

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request for reconsideration, and that, similarly, her request in August 2009 for a hearing was

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both untimely and unsupported by a showing of good cause for the delay. Under the clear
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language of the regulations, Plaintiff’s failure to request timely reconsideration and a hearing,

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absent a showing of good cause for the delay, forfeited her right to further administrative or

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judicial review. See 20 C.F.R. § 404.900(b).

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Whether good cause existed to permit Plaintiff to wait seventeen years to seek

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reconsideration of the termination decision or three and half months to request a hearing, is the

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province of the administrative process. There is nothing in the record before the ALJ that

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demonstrated good cause for the repeated delays. There is no showing that Plaintiff submitted a

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good cause statement once she sought reconsideration of the original 1991 determination or her

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request for a hearing, although it is clear that there was sufficient time and opportunity for
Plaintiff to provide such good cause during that time. It is the purview of the administrative

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For the Northern District of California

United States District Court

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process to adjudicate the timeliness of Plaintiff’s requests. Because she has not yet provided a

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statement of good cause alleging sufficient facts to demonstrate good cause for the delay of

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seventeen years before the agency, this Court finds that she has failed to exhaust her

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administrative remedies. Accordingly, the Court lacks subject matter jurisdiction to hear the

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matter as presented. It is the province of the administrative process, in the first instance, to

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make the determination whether Plaintiff’s much-delayed request for reconsideration should be

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considered timely as a result of some physical, mental, educational, or mental infirmity lasting

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the whole of the seventeen years. See 20 C.F.R. § 404.900(b), 404.911. Only the ALJ or the

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Appeals Council may make the determination to toll the time and vacate the denial of benefits.

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See 20 C.F.R. § 404.960.

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The order of the ALJ dated May 28, 2010 which affirms the 1991 decision to terminate

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Plaintiff’s benefits is not a final order for purposes of 42 U.S.C. § 405(g). However, the Court

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recognizes an exception to the “final decision” rule granting district courts federal subject

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matter jurisdiction in cases where the underlying administrative decision “is challenged on

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constitutional grounds.” Califano v. Sanders, 430 U.S. 99, (1977). The Sanders exception

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applies “to any colorable constitutional claim of due process violation that implicates a due

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process right either to a meaningful opportunity to be heard or to seek reconsideration of an

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adverse benefits determination.” Udd v. Massanari, 245 F.3d 1096, 1098-99 (9th Cir. 2001). A
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constitutional claim is colorable if is it “not wholly insubstantial, immaterial, or frivolous.” Id.

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(quoting Boettcher v. Secretary of Health & Human Services, 759 F.2d 719, 722 (9th Cir.

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1985)). “A ‘mere allegation of a due process violation’ is not a colorable constitutional claim.”

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Klemm v. Astrue, 543 F.3d 1139, 1144 (9th Cir. 2008) (citations omitted). Rather, “the claim

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must be supported by ‘facts sufficient to state a violation of substantive or procedural due

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process.’” Id.

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Plaintiff contends that she was denied due process in the course of her administrative

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process because she suffers from mental impairments that prevented her from making a timely

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petition for recovery of benefits. “An allegation of mental impairment can form the basis of a
colorable constitutional claim if the mental impairment prevented the claimant from

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For the Northern District of California

United States District Court

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understanding how to contest the denial of benefits.” Udd, 245 F.3d at 1099 (holding that a

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claimant “asserted a colorable constitutional claim” where the claimant averred that “he lacked

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the mental capacity to understand” a termination of benefits and the process for review). Under

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the regulations, factors affecting a claimant’s capacity to understand the procedures for

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requesting review include: (1) inability to read or write; (2) lack of facility with the English

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language; (3) limited education; and (4) “any mental or physical condition which limits the

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claimant’s ability to do things for him/herself.” Social Security Ruling 91-5p.

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Here, however, Plaintiff fails to state a colorable claim of a due process violation

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because her allegation of mental impairment for a period lasting seventeen years is completely

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unsupported by facts. Plaintiff claims that she was unable to understand the administrative

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process as a result of the effects of her stroke. However, even with the assistance of a

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representative, Plaintiff was repeatedly untimely with all of her submissions and, according to

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the record, has still not provided the ALJ or the Appeals Council with a statement establishing

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good cause for the repeated delays, even with the aid of a representative. Because Plaintiff has

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failed to demonstrate that she was unable to timely comply with the multiple administrative

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deadlines due to a mental or physical impairment, the Court finds that she has failed to state a

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colorable constitutional claim. In the absence of a colorable constitutional claim, this Court

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lacks jurisdiction to hear Plaintiff’s complaint.
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CONCLUSION

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This Court lacks jurisdiction to hear Plaintiff’s unexhausted claim and Plaintiff has

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failed to demonstrate that the due process exception applies. For the foregoing reasons, the

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Court GRANTS Defendant’s motion to dismiss.

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IT IS SO ORDERED.

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Dated: February 20, 2013
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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