Jones v. Berryhill

Filing 28

MEMORANDUM DECISION AND ORDER Respondent's Motion to Dismiss (Dkt. 14 ) is GRANTED IN PART AND DENIED IN PART. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

CHRISTOPHER PAUL JONES,
Petitioner,

Case No. 2:17-cv-00215-CWD

v.

MEMORANDUM DECISION
AND ORDER

NANCY A. BERRYHILL,
Acting Commissioner of Social Security
Administration,
Respondent.

INTRODUCTION
Currently pending before the Court for its consideration is Respondent’s motion to
dismiss. (Dkt. 14.) The parties have fully briefed the motion and it is now ripe for the
Court’s consideration. Having fully reviewed the record herein, the Court finds the facts
and legal arguments are adequately presented in the briefs and record. Accordingly, in the
interest of avoiding delay, and because the Court conclusively finds that the decisional
process would not be significantly aided by oral argument, the motion will be decided on
the record before this Court without oral argument. Dist. Idaho L. Rule 7.1(d).

MEMORANDUM DECISION AND ORDER - 1

PROCEDURAL HISTORY
On January 2, 2014, Petitioner filed a Title II application for a period of disability
and disability insurance benefits. On September 26, 2014, Petitioner filed a Title XVI
application for supplemental security income. In both applications, Petitioner alleged a
disability onset date of July 15, 2008. The Title II claim was denied initially on March
28, 2014, and upon reconsideration on April 25, 2014. Petitioner field a written request
for a hearing on May 19, 2014.
A hearing was held on April 21, 2016, before Administrative Law Judge Jesse
Shumway. The ALJ determined Petitioner’s Title XVI application was filed after the
May 19, 2014 request for a hearing, and was therefore premature, because an initial or
reconsideration determination had not yet been made. Further, the ALJ concluded that,
for the purpose of escalation and consolidation, no common issue was present between
Petitioner’s applications. And finally, Petitioner’s attorney confirmed there were no
common issues between Petitioner’s two applications, and that the Title XIV claim was
erroneously expedited. (Dkt. 25-7 at 58.) Accordingly, the ALJ dismissed Petitioner’s
application for Title XVI benefits, and remanded it to Disability Determination Services
for a determination on the merits. The ALJ then addressed Petitioner’s application for
Title II benefits.
After hearing testimony from Petitioner, an impartial medical expert, and a
vocational expert, the ALJ issued a decision finding Petitioner not disabled. Petitioner
requested review by the Appeals Council, which denied his request for review on March
MEMORANDUM DECISION AND ORDER - 2

3, 3017. The Appeals Council noted that the ALJ’s decision constituted the final decision
regarding Petitioner’s claim for Disability Insurance Benefits under Title II, and that
Petitioner’s application for Supplemental Security Income under Title XVI was remanded
for a determination. (Dkt. 25-2 at 5.)
Initially, Respondent sought dismissal of the entirety of the Petition for Review,
due to untimeliness. The decision of the Appeals Council was issued on March 3, 2017,
and an appeal was required within 65 days. 1 That period expired on May 8, 2017. 2 The
Petition for Review was not filed until May 18, 2017. (Dkt. 1.)
Petitioner believed he had until May 23, 2017, and diligently sought counsel, who
appeared on May 12, 2017. Counsel immediately requested an extension from the
Appeals Council. The Appeals Counsel granted Petitioner’s request for an extension
concerning Petitioner’s Title II claim for disability insurance benefits. (Dkt. 21 ¶ 4.)
Accordingly, Respondent sought an extension of time to file Respondent’s answer and
the administrative record in this case to permit review of Petitioner’s Title II claim. The
Administrative Record was filed on October 16, 2017. (Dkt. 25.)
1.

The Court Lacks Jurisdiction
42 U.S.C. § 405(g) provides that an individual, “after any final decision of the

Commissioner of Social Security made after a hearing to which he was a party,
irrespective of the amount in controversy, may obtain a review of such decision by a civil
1

42 U.S.C. § 405(g); 20 C.F.R. §§ 422.210(c); 404.981; 416.1481; 404.901; 416.1401.
Sixty-five days from March 3, 2017, expired on Sunday, May 7, 2017, giving Petitioner
until Monday, May 8, 2017, within which to file his appeal.
2

MEMORANDUM DECISION AND ORDER - 3

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.” “This
provision clearly limits judicial review to a particular type of agency action, a ‘final
decision of the Secretary made after a hearing.”’ Califano v. Sanders, 430 U.S. 99, 108
(1977).
Here, there was no hearing or final decision by the Commissioner with regard to
Petitioner’s application for Title XVI benefits. Accordingly, Petitioner failed to exhaust
his administrative remedy upon which judicial review depends. Subia v. Comm’r of Soc.
Sec., 264 F.3d 899, 902 (9th Cir. 2001). Petitioner’s petition for review with regard to his
claim for Title XVI benefits is, therefore, subject to dismissal for lack of jurisdiction.
2.

Waiver
In his response brief, Petitioner addresses only the untimeliness issue, arguing the

time for appeal should be equitably tolled and his petition for review should be
considered timely filed. After the filing of the response brief, Respondent informed the
Court that the Appeals Council had granted Petitioner’s request for an extension.
Accordingly, the timeliness issue is moot, and the Court will consider the petition for
review as it concerns Petitioner’s Title II claim for disability insurance benefits.
Petitioner did not, however, challenge Respondent’s jurisdictional argument as it
pertained to Petitioner’s Title XVI claim. The Court, sitting in an appellate capacity, may
consider arguments raised in Petitioner’s response brief. See, e.g., Quan v. Computer
Sciences Corp., 623 F.3d 870, 878 n. 4 (9th Cir. 2010); U.S. ex. rel. Meyer v. Horizon
MEMORANDUM DECISION AND ORDER - 4

Health Corp., 565 F.3d 1195, 1199 n.1 (9th Cir. 2009) (arguments raised on appeal for
the first time in a reply brief are waived); Daulton v. Astrue, 2:10–cv–443–REB, 2011
WL 4526745 *4 n.3 (D. Idaho Sept. 28, 2011) (refusing to consider arguments not raised
in the petitioner's original briefing). Accordingly, any argument, to the extent there is
one, that Petitioner did exhaust her administrative remedies, was waived. 3
CONCLUSION
The Court lacks jurisdiction to consider Petitioner’s request for review as it relates
to his Title XVI claim for Supplemental Security Income. The Court will, however,
consider the Petition for Review of the decision of the Commissioner denying
Petitioner’s claim for Disability Insurance Benefits under Title II.

3

Petitioner addressed only the timeliness issue, arguing equitable tolling was applicable.
In his request for relief, Petitioner requested the Court “allow Plaintiff to proceed with his
Complaint in its entire[ty].”
MEMORANDUM DECISION AND ORDER - 5

ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
Respondent’s Motion to Dismiss (Dkt. 14) is GRANTED IN PART AND
DENIED IN PART.

DATED: October 31, 2017

_________________________
Honorable Candy W. Dale
United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 6