Garth v. United States et al

Filing 22

ORDER by Judge Yvonne Gonzalez Rogers granting Defendant's 14 Motion to Dismiss for Lack of Jurisdiction. (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 1/23/2013)

Download PDF
1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 JUDY GARTH, Plaintiff, 8 9 10 United States District Court Northern District of California 11 12 Case No.: 11-cv-05592-YGR ORDER GRANTING DEFENDANT’S MOTION TO DISMISS vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 13 14 Plaintiff Judy Garth filed a “Complaint, Appeal, and Request for Relief from the Erroneous 15 Denial of Benefits by the Social Security Administration” (“Complaint”) on November 18, 2011. 16 (Dkt. No. 1.) Plaintiff alleges that she applied for widow’s benefits from the Social Security 17 Administration (“SSA”), who in turn requested that Plaintiff provide proof of marriage. The SSA 18 denied the application for widow’s benefits when Plaintiff was unable to produce such proof. 19 Plaintiff alleges that “[d]espite numerous requests for hearings, appeals and proof of attorney 20 neglect, the SSA will not correct its errors.” (Complaint at 1.) Plaintiff seeks “declaratory relief, 21 equitable relief, back due benefits, prospective benefits, and pre-judgment interest under the due 22 process clause of the U.S. Constitution and the laws of the United States.” (Id.) 23 Defendant Michael J. Astrue, Commissioner of Social Security, has filed a Motion to 24 Dismiss based on a lack of subject matter jurisdiction. (Dkt. No. 14.) This motion was submitted 25 on the papers without oral argument pursuant to Civ. L.R. 16-5. (Id. at 1.) Plaintiff filed an 26 opposition to the motion. (Dkt. Nos. 15 & 16.) No reply was filed. Having carefully considered 27 the papers submitted and the pleadings in this action, and for the reasons set forth below, the Court 28 hereby GRANTS Defendant’s Motion to Dismiss. 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiff’s Complaint contains little detail on the events preceding the filing of the 3 Complaint. Based on admissible evidence in the record (see infra at Section II.A), the procedural 4 history of Plaintiff’s claim for widow’s benefits with the SSA is as follows: The SSA initially denied Plaintiff’s claim for disabled widow’s benefits on August 15, 5 6 2005.1 (Weigel Decl., Ex. 1.) Plaintiff filed a Request for Reconsideration on or about September 7 7, 2005 with the assistance of counsel, Rebecca Marques (“Marques”). (Id., Exs. 2 & 3.) The SSA 8 did not receive the Request for Reconsideration until April 13, 2007, but deemed that the request 9 was submitted timely. (Id., Ex. 3.)2 In a Notice of Reconsideration dated October 16, 2007 (“Reconsideration Notice”), the SSA affirmed its initial determination that Plaintiff was not entitled 11 United States District Court Northern District of California 10 to widow’s benefits because she had not been married for at least nine full calendar months, and 12 she met no alternative condition allowing for benefits. (Id.) The Reconsideration Notice stated that 13 if Plaintiff did not agree with the decision, she “ha[d] the right to request a hearing” before an 14 Administrative Law Judge (“ALJ”), that she had 60 days to ask for the hearing, and that she “must 15 have a good reason if [she] wait[ed] more than 60 days to ask for a hearing.” (Id.) The 16 Reconsideration Notice was mailed to Plaintiff at a post office box in Berkeley, California and a 17 copy of the notice was sent to Marques. (Id., Exs. 2 & 3.) Plaintiff did not request a hearing before an ALJ within the 60-day deadline, which would 18 19 have expired on December 15, 2007. Instead, the SSA received Plaintiff’s Request for Hearing by 20 Administrative Law Judge on or about August 25, 2010, more than two and a half years late. 21 (Weigel Decl., Ex. 4.) As of that time, Plaintiff was represented by new counsel, Harvey Sackett 22 (“Sackett”) and Betty Herrera (“Herrera”). Plaintiff and her new counsel also provided a separate 23 1 24 25 26 27 The Court notes that Plaintiff previously applied for disabled widow’s benefits on March 5, 2003. (Declaration of Robert Weigel (“Weigel Decl.”) (Dkt. No. 14-1), Ex. 3 at 2.) Plaintiff did not appeal the reconsideration decision for that application. For the purposes of the pending motion to dismiss, the only relevant claim for benefits is that filed on or about July 28, 2005 and initially denied on August 15, 2005. 2 Plaintiff has attached numerous documents to her Opposition, including a letter and partial declaration from Marques explaining that she had filed Plaintiff’s Request for Reconsideration on September 7, 2005 and re-submitted it to the SSA on April 13, 2007. (Dkt. No. 15 at ECF pp. 8–11.) 28 2 1 submission asserting that good cause existed for her late filing because neither she nor Marques had 2 received a copy of the Reconsideration Notice. (Id., Ex. 5.)3 On January 24, 2011, Administrative Law Judge Mary P. Parnow dismissed Plaintiff’s 3 4 request for a hearing. (Id., Ex. 6.) The Order of Dismissal noted that an ALJ may dismiss a request 5 for hearing if the claimant did not request a hearing within the stated time period and no extension 6 of time has been granted for requesting the hearing. (Id.) Further, the Order of Dismissal stated 7 that a request for hearing must be filed within 60 days after the claimant received the notice of the 8 previous determination, and that “[t]he notice of previous determination is presumed to have been 9 received 5 days after the date on the notice, unless the claimant can establish that she did not receive the notice within the 5-day period.” (Id. (citing 20 C.F.R. § 404.901).) ALJ Parnow held 11 United States District Court Northern District of California 10 that “[b]ecause the request for hearing was not filed within the stated time period, and because the 12 claimant has not established good cause for missing the deadline to request a hearing, the request 13 for hearing dated August 25, 2010 is dismissed and the reconsideration determination dated 14 October 16, 2007 remains in effect.” (Id., Ex. 6.) Plaintiff, still represented at that time, filed a Request for Review of Hearing 15 16 Decision/Order on or about March 30, 2011. (Weigel Decl., Ex. 7.) Plaintiff and Herrera 17 submitted an additional statement regarding why good cause existed for failing to file a timely 18 appeal. (Id.) On September 19, 2011, the Appeals Council denied Plaintiff’s request for review of 19 the ALJ’s dismissal of her untimely request for hearing. (Id., Ex. 8.) The Notice of Appeals 20 Council Action stated that it “considered the reasons [Plaintiff] disagree[s] with the dismissal” but 21 that “this information does not provide a basis for changing the Administrative Law Judge’s 22 dismissal.” (Id.) Moreover, “[t]he Appeals Council considered [Plaintiff’s] representative’s 23 contentions in her undated letter. The Appeals Council concludes that the Administrative Law 24 Judge’s dismissal order is in accordance with the Social Security Laws and implementing 25 regulations.” (Id.) Plaintiff filed her Complaint in this Court on November 18, 2011. 26 3 27 It appears Sackett and/or Herrera also submitted various documents to the SSA in support of Plaintiff’s submission that she had good cause for the late filing. (See Weigel Decl., Ex. 5.) These supporting documents were not included with the Weigel Declaration. 28 3 On April 16, 2012, Defendant filed the pending Motion to Dismiss (“Motion”). (Dkt. No. 1 2 14.) Defendant contends that Plaintiff’s claim is not subject to judicial review under 42 U.S.C. 3 section 405(g) (“Section 405(g)”), which authorizes judicial review only of a “final decision of the 4 Commissioner of Social Security made after a hearing.” (Motion at 4.) Generally, a claimant must 5 complete a four-step administrative review process to obtain a judicially reviewable final decision: 6 (1) an initial determination; (2) reconsideration of the initial determination; (3) a decision by an 7 ALJ; and (4) Appeals Council review or denial of review. (Motion at 4 (citing 20 C.F.R. § 8 404.900(a)).) Here, Defendant contends that Plaintiff failed to timely request a hearing before an 9 ALJ following denial of her request for reconsideration. (Motion at 2.) “Because Plaintiff failed to obtain an ALJ hearing, an ALJ decision, and Appeals Council review or denial of review, she has 11 United States District Court Northern District of California 10 failed to obtain a judicially reviewable ‘final decision’ of the Commissioner.” (Motion at 5.) 12 Defendant further contends that the ALJ’s decision to dismiss Plaintiff’s untimely request for 13 hearing, which was filed almost three years after the denial of her request for reconsideration, is a 14 discretionary decision that is not subject to judicial review under Section 405(g). (Id. (citing 20 15 C.F.R. § 404.903).) Plaintiff filed an opposition and declaration on May 16, 2012. (Dkt. Nos. 15 (“Opposition”) 16 17 & 16 (“Declaration”).) Plaintiff responds with three arguments. First, she argues that this Court 18 has jurisdiction to determine whether the SSA and/or ALJ “abused their discretion by finding that 19 [she] did not have good cause for filing late.” (Opposition at 2.) Second, she argues that she 20 “relied on attorney’s [sic] that failed to represent [her] competently. This gives [her] good cause 21 for filing late.” (Id.) Third, she argues that she has all the necessary documentation to “prove that 22 [she] was entitled to Survivor’s benefits when [she] was erroneously denied by Social Security.” 23 (Id.) Plaintiff also attached numerous documents to her Opposition and Declaration, including 24 correspondence with her prior counsel regarding her benefits claim, correspondence sent by her 25 counsel on her behalf, and letters from attorneys stating they cannot represent Plaintiff in this 26 matter. 27 28 4 1 II. DISCUSSION 2 A. 3 A federal court is a court of limited jurisdiction. It can only preside over matters where it 4 has subject matter jurisdiction. Here, Defendant filed a motion to dismiss under Federal Rule of 5 Civil Procedure 12(b)(1) challenging the subject matter jurisdiction of the Court. See Savage v. 6 Glendale Union High Sch., 343 F.3d 1036, 1039–40 (9th Cir. 2003). Because Plaintiff invoked 7 this Court’s jurisdiction, she bears the burden of establishing subject matter jurisdiction. 8 Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 376–78 (1994). 9 Federal Rule of Civil Procedure 12(b)(1) A party moving to dismiss under Rule 12(b)(1) may make a facial or a factual attack on jurisdiction. A facial attack challenges the sufficiency of the jurisdictional allegations in a 11 United States District Court Northern District of California 10 complaint. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A factual 12 challenge, as is the case here, instead “attack[s] the substance of a complaint’s jurisdictional 13 allegations despite their formal sufficiency, and in so doing rel[ies] on affidavits or any other 14 evidence properly before the court.” St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989) 15 (internal citation omitted); accord Safe Air, 373 F.3d at 1039. In resolving a factual attack on 16 jurisdiction, the court “need not presume the truthfulness of the plaintiff’s allegations.” Safe Air, 17 373 F.3d at 1039. “Once the moving party has converted a motion to dismiss into a factual 18 motion by presenting affidavits or other evidence properly before the court, the party opposing the 19 motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing 20 subject matter jurisdiction.” Safe Air, 373 F.3d at 1039 (quoting Savage, 343 F.3d at 1039 n.2). 21 Further, the existence of disputed material facts will not preclude a trial court from evaluating for 22 itself the merits of jurisdictional claims, except where the jurisdictional and substantive issues are 23 so intertwined that the question of jurisdiction is dependent on the resolution of factual issues 24 going to the merits. Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983) (citing 25 Thornhill Publ’g Co. v. Gen. Tel. Corp., 594 F.2d 730, 733–35 (9th Cir. 1979)). 26 B. 27 “The Social Security Act limits judicial review of the Commissioner’s decisions to ‘any 28 Judicial Review of Final Decisions by the Commissioner of Social Security final decision . . . made after a hearing.’” Udd v. Massanari, 245 F.3d 1096, 1098 (9th Cir. 2001) 5 1 (quoting 42 U.S.C. § 405(g)) (alteration in original; emphasis supplied). Regulations promulgated 2 under the Social Security Act provide that certain “[a]dministrative actions that are not initial 3 determinations may be reviewed by [the SSA], but they are not subject to the administrative review 4 process . . . , and they are not subject to judicial review.” 20 C.F.R. § 404.903. Included amongst 5 these administrative actions that are not subject to judicial review are denials of “request[s] to 6 extend the time period for requesting review of a determination or a decision.” See 20 C.F.R. § 7 404.903(j); Matlock v. Sullivan, 908 F.2d 492, 493–94 (9th Cir. 1990) (affirming district court’s 8 holding that it lacked jurisdiction to review Appeals Council’s discretionary refusal to consider an 9 untimely request for review). 10 An exception to the rule barring judicial review exists, however, where the denial of such a United States District Court Northern District of California 11 request “is challenged on constitutional grounds.” Udd, 245 F.3d at 1099 (quoting Califano v. 12 Sanders, 430 U.S. 99, 109 (1977) (“Sanders”)). This exception—known as the Sanders 13 exception—“applies to any colorable constitutional claim of due process violation that implicates a 14 due process right either to a meaningful opportunity to be heard or to seek reconsideration of an 15 adverse benefits determination.” Udd, 245 F.3d at 1099 (quoting Evans v. Chater, 110 F.3d 1040, 16 1483 (9th Cir. 1997)). In construing the Sanders exception, the Ninth Circuit has held that the 17 constitutional claim may not be merely substantive, i.e., an attack on the merits of a prior decision. 18 Evans, 110 F.3d at 1482. Moreover, “[a] challenge that is not ‘wholly insubstantial, immaterial, or 19 frivolous’ raises a colorable constitutional claim.” Udd, 245 F.3d at 1099 (quoting Boettcher v. 20 Sec’y of Health and Human Servs., 759 F.2d 719, 722 (9th Cir.1985)). 21 A constitutional claim is colorable, for example, “[w]here a claimant alleges that a prior 22 determination should be reopened because he suffered from a mental impairment and was not 23 represented by counsel at the time of the denial of benefits.” Udd, 245 F.3d at 1099 (citing Evans, 24 110 F.3d at 1483). On the other hand, a claim is not colorable if it is clearly immaterial, 25 insubstantial, or frivolous and made only for the purposes of establishing jurisdiction. Hoye v. 26 Sullivan, 985 F.2d 990, 991–92 (9th Cir. 1993). A mere allegation of a due process violation is not 27 colorable; the claim “must be supported by facts sufficient to state a violation of substantive or 28 6 1 procedural due process.” Klemm v. Astrue, 543 F.3d 1139, 1144 (9th Cir. 2008) (quoting Hoye, 2 985 F.3d at 992) (internal quotations omitted). 3 C. Plaintiff’s Opposition Arguments 4 The Court first addresses the three arguments that Plaintiff raised in her Opposition. As to 5 Plaintiff’s argument that the SSA and/or ALJ “abused their discretion” in finding Plaintiff did not 6 have good cause for her untimely request for hearing, the Court notes that this language is 7 reminiscent of a claim raised under the Administrative Procedure Act (“APA”). The APA permits 8 judicial review of “final agency action for which there is no other adequate remedy in a court” and 9 authorizes a court to “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 11 United States District Court Northern District of California 10 U.S.C. §§ 704 & 706(2)(A). However, the Supreme Court has held that “the APA does not afford 12 an implied grant of subject-matter jurisdiction permitting federal judicial review of agency action.” 13 Sanders, 430 U.S. at 107. 14 Plaintiff also argues that she relied on attorneys that failed to competently represent her, and 15 that their incompetence gives her good cause for filing late. However, there is no Sixth 16 Amendment right to counsel in the social security context. Thus, ineffective assistance of counsel 17 is not a claim providing a basis for exercising jurisdiction in this case. See Holland v. Heckler, 764 18 F.2d 1560, 1562 (11th Cir. 1985) (a claimant has “no constitutional right to counsel at a disability 19 benefits hearing”); Voorhes v. Astrue, No. C-08-4951 MMC, 2009 WL 1955804, at *2 n.3 (N.D. 20 Cal. July 2, 2009) (quoting Holland); see also 4 Soc. Sec. Law & Prac. § 46:3 (“A claim of 21 ineffective assistance of counsel during administrative proceedings may not provide a basis for 22 reversing the SSA’s denial of benefits, because, given the nonadversarial nature of the 23 administrative process, competent legal representation of a claimant during the process is not a 24 prerequisite to the issuance of a valid administrative decision.”). 25 Finally, as to Plaintiff’s argument that she has the necessary documentation to “prove” that 26 she was “erroneously denied” survivor’s benefits, the Court lacks jurisdiction under Section 405(g) 27 to review substantively the purportedly erroneous denial of benefits. Section 405(g) permits review 28 of a final decision of the Commissioner of Social Security made after a hearing to which he was a 7 1 party. See also 20 C.F.R. § 404.900(a) (administrative review process is comprised of an initial 2 determination, reconsideration of the initial determination, a hearing before an ALJ, and Appeals 3 Council review of the ALJ’s decision or denial of review). No hearing occurred in Plaintiff’s case 4 and an ALJ never rendered a decision on the merits of Plaintiff’s claim for benefits. Further, the 5 ALJ’s finding that there was no good cause for having missed the deadline and dismissal of 6 Plaintiff’s request for hearing as untimely is not itself a “final decision” subject to judicial review. 7 Reafsnyder v. Astrue, No. SACV 11-659-CW, 2011 WL 5295223, at *2 (C.D. Cal. Nov. 2, 2011) 8 (citing Hoye, 985 F.2d at 991 and Boettcher, 759 F.2d at 720–21). 9 For the reasons stated herein, the arguments raised by Plaintiff in her Opposition fail to establish subject matter jurisdiction in this action. However, the Court notes that Plaintiff did 11 United States District Court Northern District of California 10 reference “due process” in the Complaint, even though she has not specifically argued here that she 12 falls under the “colorable constitutional claim” exception. Since Plaintiff is pro se and raising a 13 colorable constitutional claim is Plaintiff’s only avenue for this Court to grant judicial review 14 despite Section 405(g), the Court will address this issue even though Plaintiff has not raised it in 15 her Opposition. 16 D. Whether Plaintiff Alleges a Colorable Constitutional Claim 17 Based on the history of Plaintiff’s case, the Court finds that Plaintiff has not raised a 18 colorable constitutional claim. The Ninth Circuit has held that a constitutional claim under the 19 Sanders exception may not merely attack the merits of any prior decision. Evans, 110 F.3d at 1482. 20 The exception applies to claims “that implicate[] a due process right either to a meaningful 21 opportunity to be heard or to seek reconsideration of an adverse benefits determination.” Udd, 245 22 F.3d at 1099 (quoting Evans, 110 F.3d at 1483) (emphasis supplied). Here, there was no “decision” 23 under Section 405(g). Plaintiff’s constitutional challenge is simply a dispute over the propriety of 24 the ALJ’s dismissal of her untimely hearing request and the Appeals Council’s denial of further 25 review. Her claim does not directly attack whether she had a meaningful opportunity to be heard or 26 to seek reconsideration of the adverse determination (here, the Reconsideration Notice). In fact, 27 Plaintiff has received numerous opportunities to be heard. First, she filed a Request for 28 Reconsideration, which the SSA denied in the Reconsideration Notice. Second, she was given 60 8 1 days to seek an ALJ hearing following the Reconsideration Notice, but did not file a timely request. 2 Third, she filed an untimely request for an ALJ hearing with the assistance of counsel, who 3 submitted a letter and documentation in support of why Plaintiff had good cause for filing late. The 4 ALJ considered the untimely request and found that good cause did not exist. Fourth, Plaintiff filed 5 an appeal to the Appeals Council, who considered the ALJ’s decision and a further submission 6 from counsel regarding why good cause existed. The Appeals Council considered Plaintiff’s 7 counsel’s arguments and nonetheless denied further review. Taking these events together, Plaintiff 8 has had multiple opportunities to be heard and the SSA did afford her the opportunity to respond to 9 the unfavorable Reconsideration Notice. The Court recognizes that Plaintiff has sought assistance of counsel in this matter and 10 United States District Court Northern District of California 11 asserts that the late hearing request was not untimely through any fault of her own. (Opposition at 12 ECF p. 3.) While the Court is sympathetic to Plaintiff’s situation, the facts in this case do not rise 13 to the level of a colorable constitutional claim. The regulations under the Social Security Act 14 contain a presumption that notices are received five days after the date of the notice, unless the 15 claimant can establish that he or she did not receive the notice within that 5-day period. 20 C.F.R. 16 § 404.901. Both the ALJ and Appeals Council determined that Plaintiff had not established that 17 she did not receive the notice within this period and that good cause did not exist for the late filing.4 18 Due process does not require here that a claimant receive every possible opportunity to be heard. 19 Rather, procedural due process requires that “notice must be reasonably calculated to afford parties 20 their right to present objections” by explaining that a claimant’s failure to request reconsideration 21 will render the SSA’s initial decision final. Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir. 22 1990) (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). Plaintiff received due process in this case and received multiple opportunities to present 23 24 objections to the unfavorable Reconsideration Notice.5 To the extent that Plaintiff’s claim concerns 25 4 26 27 28 The Court notes that the Reconsideration Notice was sent to Plaintiff’s post office box in Berkeley, California, where Plaintiff had received other notices from the SSA in the past. In addition, this is the same address that Plaintiff used when she initiated this action in federal court. This is unlike situations addressed in other cases where a claimant frequently moved around or the SSA lost the claimant’s correct address. 5 The vast majority of cases involving the Sanders exception in the context of social security cases involve claimants who are mentally incapacitated. See, e.g., Klemm, 543 F.3d at 1145 n.4 (“In order to allege a 9 1 her difficulties in obtaining judicial review due to the incompetence of her former counsel, these 2 allegations do not implicate whether she received due process with respect to obtaining judicial 3 review. See Voorhes, 2009 WL 1955804, at *2. Finally, Plaintiff’s request for hearing should have been filed within 60 days after October 4 5 16, 2007. The SSA did not receive the request until August 25, 2010—approximately two years 6 and ten months later. “[P]ermitting claimants to obtain judicial review of denials of their requests 7 for extensions of time would frustrate Congress’ intent to forestall belated litigation of stale 8 claims.” Matlock, 908 F.2d at 494; cf. Sanders, 430 U.S. at 108 (allowing claimants judicial review 9 by simply filing and being denied a petition to reopen a claim would frustrate the congressional 10 purpose in Section 405(g) to impose 60-day limitations upon judicial review of a final decision). Because Plaintiff’s claim for a due process violation does not rise beyond a bare assertion, it United States District Court Northern District of California 11 12 does not rise to the level of a colorable constitutional claim and cannot be the sole basis of 13 jurisdiction in this action. Hoye, 985 F.2d at 991–92. The Court hereby GRANTS Defendant’s 14 motion to dismiss Plaintiff’s claim. 15 III. 16 17 18 CONCLUSION For the foregoing reasons, Defendant’s Motion to Dismiss is GRANTED in its entirety and Plaintiff’s claim is DISMISSED. This Order terminates Dkt. No. 14. IT IS SO ORDERED. 19 20 Dated: January 23, 2013 _________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 21 22 23 24 colorable due process violation . . . [the plaintiff] must present facts to show that he lacked the capacity to understand the review process.”) (emphasis in original); Udd, 245 F.3d at 1099; Evans, 110 F.3d at 1483. The Court has not located any case where a court found that a colorable constitutional claim existed based on the mere allegation that a claimant and/or her attorney failed to receive a notice. 25 26 27 28 10

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?