Lopez v. Commissioner of Social Security

Filing 50

ORDER GRANTING THE DEFENDANT'S MOTION TO DISMISS AND DENYING THE REMAINING MOTIONS AS MOOT by Magistrate Judge Laurel Beeler: Finding as moot 29 ; Finding as moot 39 Motion to Expedite; finding as moot 43 Motion for Sanctions; finding as moot 46 Motion to Consolidate Cases; finding as moot 48 Administrative Motion ; finding as moot 49 Administrative Motion ; granting 32 Motion to Dismiss for Lack of Jurisdiction. (lsS, COURT STAFF) (Filed on 12/22/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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RICARDO JOSE CALDERON LOPEZ,

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Case No. 16-cv-02732-LB

Plaintiff,

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ORDER GRANTING THE
DEFENDANT’S MOTION TO DISMISS
AND DENYING THE REMAINING
MOTIONS AS MOOT

v.

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COMMISSIONER OF SOCIAL
SECURITY,

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Re: ECF Nos. 29, 32, 39, 43, 46, 48, and 49

Defendant.

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INTRODUCTION

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Mr. Lopez, who is representing himself, filed a complaint for judicial review of his disability

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benefits for his claimed disability of hemiplegia, a neurological disorder, sustained as a result of

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being involved in a motor vehicle accident.1

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Mr. Lopez seeks reinstatement of his disability benefits.2 He also moved for a preliminary

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injunction, again seeing reinstatement of his disability benefits.3 In October 2016, the court denied

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the motion for injunctive relief and advised Mr. Lopez it would consider all of his arguments after

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Compl. ̶ ECF No. 1. Record citations are to material in the Electronic Case File (“ECF”); pinpoint
citations refer to the ECF-generated page numbers at the top of documents.
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Id. at 7.

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ECF No. 29.

ORDER — No. 16-cv-02732-LB 

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the parties fully briefed the dispute.4 In December 2016, Mr. Lopez filed motions for an order to

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show cause, for sanctions, to consolidate this case with his constitutional tort case against the

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SSA, and to reconsider the court’s decision to decide the motions without a hearing.5
The Commissioner opposes Mr. Lopez’s application for judicial review and moves to dismiss

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the complaint and the related motions on the ground that the court lacks subject-matter jurisdiction

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because there is no final agency decision because Mr. Lopez did not exhaust his administrative

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remedies.6
Pursuant to Civil Local Rule 16-5, the matter is deemed submitted for decision by this court

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without oral argument. Moreover, the court finds that it can decide the matter without oral
argument under Civil Local Rule 7-1(b). All parties have consented to magistrate jurisdiction.7

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United States District Court
Northern District of California

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The court dismisses the complaint without leave to amend for lack of subject-matter jurisdiction.

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The court denies Mr. Lopez’s other motions.

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STATEMENT

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The SSA determined that Mr. Lopez was disabled under Title II of the Social Security Act,

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and it awarded him monthly benefits effective February 15, 2003.8 On August 20, 2013, pursuant

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to its statutory mandate to review disability determinations, see 42 U.S.C. § 421(i)(1), the SSA

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determined that Mr. Lopez’s disability had ceased.9 Mr. Lopez requested reconsideration of this

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determination in September 2013, waived his right to a hearing, and asked for a disability officer

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to hear his case.10 In March 2014, a disability hearing officer concluded there was insufficient

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evidence to establish that Mr. Lopez had a disability because Mr. Lopez would not fill out his

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ECF No. 33.

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ECF Nos. 39, 43, 46, 48, and 49.

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ECF No. 32 at 1, 13.

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Consent Forms ‒ ECF Nos. 7, 15.

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Chung Decl. ̶ ECF 32-1, ¶ 3(a) & Ex. 1 ̶ ECF No. 32-1 at 5.

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Id. ¶ 3(b) & Ex. 2. ̶ ECF No. 32-1 at 8.

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Id. ¶ 3(c) & Ex. 3 ̶ ECF No. 32-1 at 9.

ORDER — No. 16-cv-02732-LB

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reconsideration application or the “Activities of Daily Living” questionnaire, and he refused to

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attend two psychological and two internist consultive examinations.11 On March 19, 2014, the

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SSA sent Mr. Lopez a Notice of Reconsideration telling him that he was no longer entitled to Title

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II benefits based on a disability and that he had 60 days to request a hearing before an ALJ.12

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On May 8, 2014, Mr. Lopez filed his request for a hearing before an ALJ, saying that he would

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provide additional information at the hearing instead of providing the name and address of sources

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that the SSA could contact to get information about his disability.13 The hearing was scheduled for

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August 26, 2015.14 The SSA sent Mr. Lopez a notice about his hearing date, tried to call him

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regarding the hearing, and sent a reminder warning him that a failure to appear would result in the
dismissal of his appeal; the notices were mailed to the address that Mr. Lopez provided in his

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United States District Court
Northern District of California

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hearing request.15
Mr. Lopez asserts that he responded to the notice of hearing by mailing the assigned ALJ

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(Sally C. Reason) a letter that advised her of (1) his difficulties with the local social-security office

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(which was — he alleged — impermissibly forcing him to fill out administrative forms to reinstate

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his benefits) and (2) his Bivens lawsuit in the Central District, which he alleges was a conflict of

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interest that prevented his attending the hearing.16 He did not appear at the hearing, and the ALJ

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dismissed his request for a hearing and issued a notice of dismissal.17 Mr. Lopez timely asked

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Appeals Council to review the ALJ’s order dismissing his case.18 The appeals council denied the

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request, concluding that there was no “good cause” for Mr. Lopez’s failure to appear.19

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Id. ¶ 3(d) & Ex. 4 ̶ ECF No. 32-1 at 14.

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Id. ¶ 3(e) & Ex. 5 ̶ ECF No. 32-1 at 20 ̶ 22.

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Id. ¶ 3(f) & Ex. 6 ̶ ECF No. 32-1 at 23.

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Id. ¶ 3(g) & Ex. 7 ̶ ECF No. 32-1 at 30.

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Id. ¶ 3(g ̶ i) & Exs. 7 ̶ 9 ̶ ECF No. 32-1 at 30 ̶ 37.

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Compl. ̶ ECF No. 1 at 2 ̶ 3.

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Id.; Chung Decl. ̶ ECF 32-1, ¶ 3(j) & Ex. 10 ̶ ECF No. 32-1 at 39.

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Id. ¶ 3(k) & Ex. 11 ̶ ECF No. 32-1 at 47.

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Id. ¶ 3(l) & Ex. 12 ̶ ECF No. 32-1 at 49.

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ORDER — No. 16-cv-02732-LB

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ANALYSIS
The Commissioner asserts that the court lacks subject matter over the Commissioner’s non-

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final decision.20 The plaintiff has the burden of establishing jurisdiction. See Kokkonen v.

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Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
Here, the ALJ dismissed Mr. Lopez’s request for a hearing because he did not appear, despite

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being warned that his failure to appear would result in dismissal of his hearing without further

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notice. The relevant regulation is 20 C.F.R. § 404.957, which provides that an ALJ may dismiss a

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request for a hearing without further notice if (1) the claimant or his representative did not appear,

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(2) the claimant was “notified before the time set for the hearing that your request for hearing may

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be dismissed without further notice if you did not appear at the time and place of hearing,” and (3)

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United States District Court
Northern District of California

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“good cause has not been found by the administrative law judge for your failure to appear.” Id. §

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404.97(b)(1)(i).
The issue is whether Mr. Lopez exhausted his administrative remedies and thus whether the

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SSA issued a final decision.
The Social Security Act authorizes judicial review of only final Social Security Administration

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decisions made after a hearing. 42 U.S.C. § 405(g); Califano v. Sanders, 430 U.S. 99, 108 (1977)

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(Section 405(g) “clearly limits judicial review to a particular type of agency action, a ‘final

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decision’ of the Secretary made after a hearing.”). A “final decision” is not defined by the Social

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Security Act and is instead defined by regulation. See 20 C.F.R. § 404.900(a)(1)-(4). Under the

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regulations, a claimant obtains a final decision only after completing the four steps of the

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administrative review process: (1) an initial determination; (2) reconsideration; (3) a hearing

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before an ALJ; and (4) review by the Appeals Council. Id ; see Kildare v. Saenz, 325 F.3d 1078,

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1082 (9th Cir. 2003) (“[a] final decision has two elements: (1) presentment of the claim to the

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Commissioner, and (2) complete exhaustion of administrative remedies.”) (citing Johnson v.

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Shalala, 2 F.3d 918, 921 (9th Cir. 1993)).

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Motion ̶ ECF No. 32 at 7.

ORDER — No. 16-cv-02732-LB

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