Pinder v. Social Security Administration
Filing
14
MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 3/20/2012. (lih)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
SHEILA A PINDER,
Plaintiff,
v.
Civ. No. 10-632-LPS
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
Sheila A. Pinder, Harrington, Delaware.
Pro Se Plaintiff.
Charles M. Oberly, III, Esquire, United States Attorney and Patricia Anne Stewart, Esquire,
Special Assistant United States Attorney, of the Office of the United States Attorney,
Wilmington, Delaware. Of Counsel: Eric P. Kressman, Esquire, Regional Chief Counsel, ofthe
Social Security Administration, Philadelphia, Pennsylvania.
Attorneys for Defendant.
MEMORANDUM OPINION
March 20,2012
Wilmington, Delaware
{~?,k
STARK, U.S. District Judge:
I.
INTRODUCTION
Plaintiff, Sheila A. Pinder ("Pinder" or "Plaintiff"), who appears pro se, appeals from a
decision of Defendant, Michael J. Astrue, the Commissioner of Social Security
("Commissioner" or "Defendant"), denying her application for a period of disability, disability
insurance benefits ("DIB"), and supplemental security income ("SSI") under Title II and Title
XVI of the Social Security Act (the "Act"), 42 U.S.C. §§ 401-433, 1381-1383f.
Presently before the Court is a motion to dismiss for want of jurisdiction filed by
Defendant. (OJ. 12) Plaintiff did not respond to the motion. Therefore, the Court will decide
the motion on the papers submitted. (See OJ. 13) For the reasons set forth below, the Court will
grant the Commissioner's motion.
II.
BACKGROUND
Plaintiff filed applications for a period of disability, DIB, and SSI on October 28, 2004.
(OJ. 12 Paul Halse Decl. ("Halse Decl.") at ~ (3)(a» Plaintiff's applications were denied
initially on August 29,2005, and upon reconsideration on April 24, 2006. (ld.) On June 29,
2006, Plaintiff filed a request for a hearing before an Administrative Law Judge ("ALJ"), and the
hearing was held on August 14,2007. (ld.) On November 15, 2007, the ALJ issued a Notice of
Decision-Partially Favorable and a Decision finding Plaintiff disabled beginning on December 1,
2006 ("Notice"). (OJ. 12 Ex. 1)
The Notice was mailed to Plaintiff at her address in Bridgeville, Delaware. (ld.) On the
same date, the Notice was also mailed to Plaintiff's counsel, Karen Y. Vicks, at her address in
Dover, Delaware. (ld.) The ALJ's November 15,2007 Notice informed Plaintiff of her right to
request review of the ALl's November 15,2007 Decision ("the Decision") within sixty days
1
from the date of its receipt. (Id) The Notice instructed Plaintiff that were she unable to request
review of the Decision within sixty days of its receipt, she could request an extension oftime to
file a request for review of the Decision. (Id) In addition, the Notice explained the Appeals
Council's presumption that Plaintiff received a copy of the Notice within five days of its date.
(Id)
According to Plaintiff, she filed her request for review at the Georgetown, Delaware
office on either January 15, 2008, or sometime after January 15, 2008 (no date provided), the
date she received the form. (D.I. 11 at 3; D.I. 12 Ex. 4) She states that when she filed her "first
appeal" she filed form SSA-561-US, which is a request for reconsideration. (Id) When Plaintiff
submitted additional evidence on August 8, 2008, she used form HA-520-US, which is a request
for review of hearing decision/order. (D.l. 12 Ex. 2) Plaintiff states that she was not provided
with a copy of the appeal form and there is nothing in the computer, leaving her with no
evidence of the filing. (D.l. 11 at 3-4)
The Appeals Council considered the request for review filed as of August 9, 2008, the
date of Plaintiffs form HA-520-US. On September 9, 2008, the Appeals Council sent a letter to
Plaintiff requesting a statement showing reasons why she did not timely file her request for
review. (Id at Ex. 3) Plaintiff responded on September 27,2008, stating that she had timely
filed her request for review when she filed the request for reconsideration on form SSA-561-US.
(Id at Ex. 4) On May 26,2010, the Appeals Council dismissed Plaintiffs request for review as
untimely filed. (Id at Ex. 5). The Appeals Counsel explained that a search of Agency records
did not reveal a timely request for review filed by Plaintiff. (Id) It found no good cause to
extend the time for filing and dismissed Plaintiffs request for review. (Id) Plaintiff was
advised that the dismissal of a request for review is not subject to further review. (Id)
2
On July 27, 2010, Plaintiff filed a Complaint seeking judicial review of the Decision.
(D.!.2) The Complaint states that Plaintiff has exhausted her administrative remedies. In
response, the Commissioner moves for dismissal for want of jurisdiction for Plaintiffs failure to
exhaust her administrative remedies. (D.!. 12) When Plaintiff did not timely file a response to
the motion, the Court entered a briefing schedule giving Plaintiff up to and including June 20,
2011, to file a response. (D.I. 13) She failed to do so.
III.
LEGAL STANDARDS
When a party files a motion to dismiss attacking subject matter jurisdiction, the Court
must first determine if the motion is a factual attack or a facial attack. See CNA v. United States,
535 F.3d 132, 139 (3d Cir. 2008). Defendant's motion is a factual attack inasmuch as it
concerns "the actual failure of [plaintiffs] claims to comport [factually] with the jurisdictional
prerequisites." United States ex reI. Atkinson v. PA. Shipbuilding Co., 473 F.3d 506, 514 (3d
Cir. 2007). When a motion to dismiss for lack of subject matter jurisdiction attacks the existence
of subject matter jurisdiction in fact, "no presumptive truthfulness attaches to plaintiff's
allegations and the court may evaluate for itself the merits of jurisdictional claims." Mortenson
v. First Fed Sav. & Loan Ass 'n, 549 F.2d 884, 891 (3d Cir. 1977); see also Fed. R. Civ. P.
12(b)(l). Plaintiff bears the burden of showing that jurisdiction exists. See Kehr Packages, Inc.
v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991).
Exclusive jurisdiction over Social Security benefits cases arises from 42 U.S.C. § 405(g).
The same rule applies to SSI cases. See 42 U.S.C. § 1383(c)(3); Callender v. Social Sec. Admin.,
275 F. App'x 174, 175 (3d Cir. Apr. 23, 2008) (not published). Section 405(g) provides, in
relevant part: "Any individual, after any final decision of the Commissioner of Social Security
made after a hearing to which he was a party[,] ... may obtain a review of such decision by a
3
civil action commenced within sixty days after the mailing to him of notice of such decision or
within such further time as the Commissioner of Social Security may allow." Section 405(h)
provides, in relevant part: "The findings and decision of the Commissioner of Social Security
after a hearing shall be binding upon all individuals who were parties to such hearing. No
findings of fact or decision of the Commissioner of Social Security shall be reviewed by any
person, tribunal, or governmental agency except as herein provided."
As a general rule, judicial review is barred absent a "final decision" by the Commissioner
of Social Security. Fitzgerald v. Apfel, 148 F.3d 232, 234 (3d Cir. 1998). Under the regulations,
a "final decision" is one rendered after a claimant has completed the four-step administrative
review process, the last step being a review by the Appeals Council. See 20 C.F.R. § 404.900(a);
Callender, 275 F. App'x at 175. Exhaustion of administrative remedies requires a claimant to:
(1) present a claim and receive an initial determination and, if dissatisfied, (2) request
reconsideration of the initial determination and, if dissatisfied, (3) request a hearing before an
administrative law judge and, if dissatisfied with the decision of the administrative law judge,
(4) request review by the Appeals Council. See 20 C.F.R. § 404.900(a). A claimant's failure to
exhaust all administrative remedies before filing an appeal deprives the court of subject matter
jurisdiction. See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
An Appeals Council decision to refrain from considering an untimely request for review
is not a "final decision." Bacon v. Sullivan, 969 F.2d 1517, 1519 (3d Cir. 1992). An exception
to the "final decision" rule applies when a claimant presents a constitutional claim or a claim that
is wholly collateral to the claim for benefits. See Califano v. Sanders, 430 U.S. 99,108-09
(1977).
4
IV.
DISCUSSION
Defendant moves for dismissal on the grounds that Plaintiff failed to exhaust her
administrative remedies and, therefore, the Court does not have subject matter jurisdiction.
Plaintiff did not file a response to the motion. However, her February 9,2011 letter to the Court
asks the Court "to get past this date issue" because she is satisfied that forms requesting a review
from the Appeals Council have been misplaced in the past. (OJ. 11 at 4) Plaintiff asks the
Court to look at the issues because she feels "positive" the Court will have a different view on
the reasons for the partial denial of her claim. (Id)
The ALJ Notice was sent to Plaintiff and her attorney on November 15, 2007. Including
the five additional days for mailing, Plaintiff was then required to file her request for review of
the November 15,2007 Decision within sixty-five days, that is by January 19, 2008. Plaintiff's
filing of her request for review on August 5, 2008 was far beyond this deadline. (See OJ. 12,
Halse Oecl. at ~ (3)(b), Ex. 2)
Notwithstanding Plaintiff's assertion that she filed a timely request for review in January
2008, a search of the Social Security Administration's database failed to locate any record to
support this contention, and the Appeals Council would not hear her request for review. When
the Appeals Council declined to consider Plaintiff's untimely request for review because she
failed to show the requisite good cause, the action became unreviewable. See Bacon, 969 F.2d at
1520.
Plaintiff's claim is not collateral to her claim for benefits. Rather, she seeks review of
the Decision that partially denied her disability benefits. The Appeals Council's decision not to
consider Plaintiff's untimely request for review is not a "final decision" subject to judicial
review under § 405(g). See Bacon, 969 F.2d at 1519. Nor has Plaintiff properly exhausted her
5
administrative remedies, as is required for judicial review. Hence, Plaintiffs Complaint is not
properly before the Court.
Finally, it is Plaintiffs burden to establish subject matter jurisdiction, yet she did not
oppose the motion to dismiss and has not presented any proof to support a finding of subject
matter jurisdiction by this Court. Therefore, the Court must dismiss this action for lack of
subject matter jurisdiction.
v.
CONCLUSION
For the reasons discussed above, the Court will grant Defendant's Motion to Dismiss.
An appropriate Order will be entered.
6
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?