Skahan v. Social Security Administration, The et al
Filing
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ORDER AFFIRMING DECISION OF ADMINISTRATIVE LAW JUDGE. Signed by JUDGE DERRICK K. WATSON on 12/24/2015. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I
KENNETH SKAHAN,
CIVIL NO. 15-00046 DKW-BMK
Plaintiff,
ORDER AFFIRMING DECISION
OF ADMINISTRATIVE LAW
JUDGE
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
ORDER AFFIRMING DECISION OF ADMINISTRATIVE LAW JUDGE
INTRODUCTION
This is an action brought under 42 U.S.C. § 405(g) to review a final decision
of the Acting Commissioner of Social Security, Carolyn C. Colvin (the
“Commissioner”). Kenneth Skahan was awarded Social Security disability
benefits based on a work injury. He contends that he was disabled from 1993
through 1999 and 2005 through 2009, but that the Social Security Administration
erroneously included his earnings from these years as part of the calculation of his
monthly disability insurance benefits payments. The Commissioner, however,
determined that Skahan was not disabled during these years within the meaning of
the Social Security Act—including from 2006 through 2008—and that the agency
properly calculated the amount of Skahan’s monthly payment. Skahan disagrees.
After carefully reviewing the record, the Court concludes that the Administrative
Law Judge (“ALJ”) correctly determined that Skahan was receiving the full amount
of monthly disability insurance benefits to which he was entitled, and the Court is
otherwise without jurisdiction to review the claimed points of error. Accordingly,
the Court affirms the ALJ’s September 13, 2013 decision.
BACKGROUND
On November 15, 1996, Plaintiff filed an application for disability insurance
benefits, alleging disability since June 13, 1994. The Social Security
Administration (the “agency”) initially denied this claim, did so again after Skahan
requested reconsideration, and did so a third time after an ALJ convened a hearing
on February 12, 1998. See Opening Brief, Ex. 2 at 4. The ALJ’s May 5, 1998
decision found that Skahan was not disabled because of his ability to perform other
work in significant numbers in the national economy. Opening Brief, Ex. 2 at 17.
On August 2, 2006, Skahan filed another application for disability insurance
benefits, alleging that he was disabled from November 1, 2004. See Administrative
Record (“AR”) 66, 68. The agency denied this claim on January 5, 2007. Opening
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Brief, Ex. 1 at 2. Of particular note, Skahan did not seek reconsideration of the
denial of this claim. See Opening Brief at 5-6.
Skahan next filed an application for disability insurance benefits on
September 13, 2011. AR 15-18, 66. In that application, Skahan stated that he
became disabled on August 3, 2009. AR 15. The agency initially denied this
claim on March 14, 2012. See AR 19-22. However, after Skahan requested
reconsideration on March 21, 2012, the agency issued a Notice of Award on June 11,
2012, finding him disabled as of August 3, 2009, as requested. AR 23-28. Under
the Notice of Award, Skahan would receive $1,147.00 per month in disability
benefits. AR 10. The Notice of Award informed Skahan that he would be entitled
to benefits no earlier than twelve months before the month he filed his claim,
pursuant to 42 U.S.C. § 423. AR 24. That is, because he filed his claim on
September 13, 2011, his monthly disability insurance payments would begin as of
September 2010. Id.
Skahan requested reconsideration of the June 11, 2012 Notice of Award on
July 12, 2012, disputing the amount of the monthly payment awarded. AR 29. On
March 12, 2013, the agency issued a notice denying his request for reconsideration,
explaining how it had calculated Skahan’s monthly disability payments. AR 31-35.
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On May 21, 2013, Plaintiff requested a hearing before an ALJ to challenge the
calculation of his monthly disability payments. AR 36.
The ALJ issued a decision on September 10, 2013, affirming the agency’s
March 12, 2013 determination of the amount of Skahan’s monthly disability
payments. AR 7-14. In the decision, the ALJ took note of Skahan’s assertion that
that he was disabled between 1993 and 1999, and between 2005 through 2009, and
his argument that these years should not have been included in the computation of
his average indexed monthly earnings. AR 13. The ALJ determined that these
periods of alleged disability were not included as such in the agency’s calculation
because the agency did not find Skahan to be disabled under the Act until August 3,
2009. AR 13. The ALJ found that the agency properly applied the procedures set
forth in the statute and the agency’s regulations to calculate the amount of Skahan’s
monthly disability payment. AR 13-14.
Skahan filed a request for review of the ALJ’s decision on October 4, 2013.
AR 93. Thereafter, on December 24, 2014, the ALJ’s decision became the
Commissioner’s final decision when the Appeals Council denied Skahan’s request
for review. AR 3-5. Skahan filed his complaint seeking judicial review of the
Commissioner’s final decision pursuant to 42 U.S.C. § 405(g) on February 19, 2015.
The sole issue on appeal is whether the years 2006, 2007, and 2008 should have been
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excluded from his computation base years. Complaint ¶ 4.b. According to
Skahan:
I was wrongfully denied SSDI benefits in 2006 and the
Government is also trying to lower my monthly SSDI benefit
amount by including those years in my computation base years
to determine my “average indexed monthly earnings”, which
were incorrectly calculated. It is no longer of any consequence
that I was wrongly denied benefits for the claim of 8/2/2006 but
the ALJ was and is required to investigate and ascertain, whether
or not I qualify, under the SSA rules, for a “period of disability”
for the years in question, 2006, 2007 and 2008, which he did not.
That is an abuse of discretion and an error of law.
Complaint ¶ 5.
STANDARD OF REVIEW
Under the Social Security Act, 42 U.S.C. § 405(g) (the “Act”), “[t]he district
court reviews the Commissioner’s final decision for substantial evidence, and the
Commissioner’s decision will be disturbed only if it is not supported by substantial
evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158-59 (9th
Cir. 2012); see also Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098
(9th Cir. 2014) (“[Courts] leave it to the ALJ to determine credibility, resolve
conflicts in the testimony, and resolve ambiguities in the record.”) (citations
omitted). Substantial evidence is “more than a mere scintilla but less than a
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preponderance; it is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Hill, 698 F.3d at 1159 (citation omitted).
“Even though findings might be supported by substantial evidence, the
correct legal standard must be applied in making a determination of disability.”
Frost v. Barnhart, 314 F.3d 359, 367 (9th Cir.2002) (citation omitted). In other
words, “the decision should be set aside if the proper legal standards were not
applied in weighing the evidence and making the decision.” Benitez v. Califano,
573 F.2d 653, 655 (9th Cir.1978) (quoting Flake v. Gardner, 399 F.2d 532, 540 (9th
Cir. 1968)).
DISCUSSION
I.
The Court is Without Jurisdiction to Evaluate
Skahan’s Disability Status During 2006, 2007, and 2008
The first point of error raised by Skahan is that the ALJ erred in determining
that “[t]here are no other period(s) of [Skahan’s] disability, as that term is defined is
20 CFR 404.1501(b) and 404.1505,” beyond the period since August 3, 2009.
Opening Brief at 8. The ALJ expressly included in his evaluation of the evidence
the following explanation of why certain years were not excluded in the computation
of Skahan’s average indexed monthly earnings:
Here, the Social Security Administration did not find the
claimant to be under a disability during the years from 1993
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through 1999, and from 2005 through 2009, as he alleged. The
claimant filed an application for disability benefits on November
15, 1996, which was denied. He filed another application for
disability benefits on August 2, 2006, which was also denied.
[Exh. 9/1-2] He was not determined to be under a disability,
until beginning August 3, 2009, based on his current application
protectively filed on October 17, 2011. [Exh. 4]
AR 13.
Skahan faults the ALJ for reducing the amount of his disability insurance
benefits by not finding him disabled under the Act from 2006 through 2008. In
order for Skahan to succeed in this line of argument, however, he would need the
ALJ and the Court to reopen and review the agency’s denial of his August 2006
disability insurance benefits claim. This the Court cannot do.
Skahan acknowledges that he elected not to pursue available administrative
remedies to challenge the agency’s denial of his August 2006 claim. See Opening
Brief at 5-6 (“Although the claimant did not appeal that denial it does not preclude
him from establishing a ‘period of disability’ from 2006, 2007 and 2008, by showing
that the denial was unlawful or incorrect and not supported by the evidence or the
SSA’s rules.”); Reply at 2 (same). Despite Skahan’s opinion,1 his failure to
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Skahan’s assertion that “this case is not about re-opening of the 2006 application” is specious.
Reply at 5. His conclusory assertion that “this Court certainly, and legally, has the jurisdiction to
review the 2007 decision in order to determine if the ALJ, in the instant case, properly reviewed
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exhaust administrative remedies and obtain a final agency decision on his August
2006 claim leaves this Court without jurisdiction to now consider the matter for the
first time.
Presenting an administrative claim to the agency is a non-waivable
requirement to establishing jurisdiction under section 405(g). Bowen v. City of New
York, 476 U.S. 467, 482-83 (1986). Skahan is required to exhaust administrative
remedies before seeking judicial review of a final agency decision. 42 U.S.C.
§ 405(g). He did not do so, having failed to administratively challenge the decision
on his August 2006 claim, the only one that even partially addresses the 2006 to
2008 time period at issue here. Accordingly, because Skahan did not
administratively exhaust, as required by 42 U.S.C. § 405(g), the Court cannot
consider any challenges regarding his 2006, 2007, and 2008 disability status.2 See,
e.g., Califano v. Sanders, 430 U.S. 99, 108-09 (1977) (observing that § 405(g)
“clearly limits judicial review to a particular type of agency action, a ‘final decision
of the Secretary made after a hearing’”); Subia v. Comm’r of Soc. Sec., 264 F.3d 899,
the ALJ’s 2007 decision, given his affirmation of it,” is unsupported by any legal authority in his
brief, and in fact, is in contravention of the legal precedent known to this Court.
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Likewise, as discussed briefly, infra, Skahan neither administratively challenged the agency’s
mathematical calculation of his monthly benefits, as detailed in its March 12, 2013 Notice of
Reconsideration, nor did he cite it as a basis for this appeal. AR 31-33. The Court is accordingly
without jurisdiction to review those calculations and makes no findings with respect thereto.
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902 (9th Cir. 2001) (courts may only waive a claimant’s failure to exhaust
administrative remedies upon assertion of a colorable constitutional claim ); Taylor
v. Heckler, 765 F.2d 872, 877 (9th Cir. 1985) (agency’s decision to reopen a claim is
“purely discretionary” and refusal to reopen previous decision is not final decision
subject to judicial review).
II.
The ALJ’s Decision Correctly Applied Legal Standards
and Is Supported by Substantial Evidence
The second point of error raised by Skahan is that the ALJ erred in
determining that “the claimant’s monthly benefit amount was correctly calculated as
set forth in the reconsideration determination issued on March 12, 2013.” Opening
Brief at. 8. Aside from his allegations about other periods of disability addressed
above, Skahan does not seriously dispute that the agency properly followed the
relevant regulatory procedures.
As set forth in the decision, the agency found Skahan to be disabled beginning
August 3, 2009 and entitled to monthly disability benefits beginning September
2010. The decision reviewed in detail the procedures set forth in the agency’s
March 12, 2013 reconsideration, finding that Skahan’s monthly benefit had been
correctly determined, and set forth in considerable detail the statutory basis for the
method of calculation. See AR 11. Skahan points to no error in this analysis.
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The ALJ explained that, under 20 C.F.R. § 404.211, the agency would not include
years within a period of disability when calculating an individual’s average indexed
monthly earnings, unless the inclusion of those years would lead to a higher primary
benefit amount. AR 11-12. Because Skahan’s earlier disability applications were
denied, the ALJ properly determined that he had no other periods of disability under
the Act, and that the agency correctly applied its procedures to calculate Skahan’s
monthly benefit amount. AR 13-14.
Accordingly, the Court finds that the Commissioner’s final decision correctly
applied legal standards, was supported by substantial evidence, and is in accordance
with the law.
CONCLUSION
For the foregoing reasons, the Court affirms the ALJ’s September 13, 2013
decision. The Clerk of Court is directed to close the case.
IT IS SO ORDERED.
DATED: December 24, 2015 at Honolulu, Hawai‘i.
Kenneth Skahan v. Carolyn W. Colvin; Civil No. 15-00046 DKW-BMK; ORDER AFFIRMING DECISION
OF ADMINISTRATIVE LAW JUDGE
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