Massey v. Commisioner of Social Security et al

Filing 29

MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 12/21/2012.Mailed notice.(jlj)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CARLOS L. MASSEY,
Plaintiff,
vs.
MICHAEL J. ASTRUE, Commissioner of Social Security,
JAMES C. BORLAND, Assistant Deputy Commissioner, in
his official and individual capacity, CHRISTOPHER L.
DILLON, Administrative Appeals Judge, in his official and
individual capacity, and ROXANNE J. KELSEY,
Administrative Law Judge, in her official and individual
capacity,
Defendants.

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12 C 5210
Judge Feinerman

MEMORANDUM OPINION AND ORDER
Plaintiff Carlos Massey brought this suit against the Commissioner of Social Security,
the Assistant Deputy Commissioner of Social Security, and an Administrative Appeals Judge
and an Administrative Law Judge (“ALJ”) with the Social Security Administration (“SSA”).
The complaint alleges that the Commissioner improperly denied Massey’s claim for Social
Security disability benefits and also that Defendants conspired together to deprive him of his
constitutional rights and to commit crimes against him in violation of the Racketeer Influenced
and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. Doc. 1. Defendants have
moved to dismiss the complaint to the extent it brings RICO and constitutional claims—that is,
except to the extent that it names the Commissioner as a defendant and challenges the denial of
disability benefits. Doc. 14. The motion is granted, but the dismissal of the RICO and
constitutional claims rests on grounds other than those advanced by Defendants.

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Section 405(g) of Title 42 allows disappointed applicants for Social Security benefits to
seek judicial review of the Commissioner’s decision:
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 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. … The court shall have
power to enter, upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for rehearing. … The
judgment of the court shall be final except that it shall be subject to review
in the same manner as a judgment in other civil actions. …
42 U.S.C. § 405(g). Defendants contend that judicial review as provided for by § 405(g) is the
sole avenue by which a plaintiff may bring a lawsuit arising out of the denial of Social Security
benefits. They premise their argument on § 405(h), which provides in part:
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. No action against the United States, the Commissioner of
Social Security, or any officer or employee thereof shall be brought under
section 1331 or 1346 of Title 28 to recover on any claim arising under this
subchapter.
42 U.S.C. § 405(h). Defendants assert that § 405(h) deprives this court of subject matter
jurisdiction over Massey’s claims except to the extent that they come under § 405(g), and that
the court accordingly must dismiss Massey’s RICO and constitutional claims for lack of
jurisdiction.
The court has subject matter jurisdiction over the entire complaint, including the RICO
and constitutional claims. True, Massey challenges under § 405(g) the Commissioner’s denial of
his application for benefits, and he also brings other claims that go beyond the scope of judicial
review provided for by § 405(g). But § 405(h) prevents this court from exercising jurisdiction
over those other claims only to the extent that they request “review[]” of “findings of fact or
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decision[s] of the Commissioner of Social Security,” or amount to an “action … to recover on
any claim arising under this subchapter,” meaning the subchapter on “Federal Old-Age,
Survivors, and Disability Insurance Benefits.” Ibid. Construed in favor of Massey, who is the
non-movant, the complaint’s RICO and constitutional claims are not challenges to the
Commissioner’s denial of benefits or attempts to recover on Massey’s claim for benefits.
Rather, those claims allege that the SSA officials who participated in the denial of benefits also
conspired to deprive him of his federal constitutional rights and to commit crimes against him.
Massey explains this in responding to the motion to dismiss: “The Plaintiff hereby makes known
that the Complaint before this court is not merely to seek relief from an [sic] decision by the
Commissioner of Social Security.” Doc. 17 at 2. And the relief Massey seeks is not limited to
payment of the benefits he claims to be owed for his alleged disability; for instance, he also
seeks “punitive damages … of at least $120,000.” Doc. 1 at 6. Whatever the merits of Massey’s
RICO and constitutional claims, § 405(h) does not oust the court’s jurisdiction to consider them.
The case upon which Defendants principally rely, Shalala v. Illinois Council on Long
Term Care, Inc., 529 U.S. 1 (1999), does not advance their cause. The plaintiff in that case
brought suit against the Secretary of Health and Human Services (“HHS”), invoking the federal
question jurisdiction under 28 U.S.C. § 1331 and alleging that certain HHS Medicare regulations
violated federal statutes and the Constitution. 529 U.S. at 5. The Supreme Court held that
§ 405(h)’s statement that “‘[n]o action … to recover on any claim’ arising under the Medicare
laws shall be ‘brought under section 1331 … of title 28’” foreclosed federal question
jurisdiction, see 529 U.S. at 5 (quoting 42 U.S.C. § 405(h)), and required constitutional
challenges to the agency’s regulations to be brought through the same special channel for HHS
proceedings in general: through an administrative hearing before the agency, followed by
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judicial review in federal court, see id. at 7-9. By the same token, Defendants argue that
§ 405(h) precludes Massey from bringing his claims except pursuant to the judicial review
process set out by § 405(g). But Massey is not challenging any SSA regulation, and nor do his
RICO and constitutional claims challenge the merits of the Commissioner’s denial of benefits.
Rather, Massey alleges that Defendants conspired to violate RICO and his constitutional rights,
and Defendants do not suggest that § 405(g) gives SSA officials immunity from suit under RICO
or other federal laws.
Although Defendants’ jurisdictional argument is rejected, Massey is proceeding in forma
pauperis, Docs. 4, 7, and the Judicial Code provides with respect to such lawsuits that “the court
shall dismiss the case at any time if the court determines that … the action or appeal … fails to
state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2). In considering whether
to dismiss Massey’s complaint in part for failure to state a claim, the court assumes the truth of
the complaint’s factual allegations, though not its legal conclusions. See Munson v. Gaetz, 673
F.3d 630, 632 (7th Cir. 2012); Reger Dev., LLC v. Nat’l City Bank, 592 F.3d 759, 763 (7th Cir.
2010). The court has determined that the complaint fails to state RICO and constitutional claims
on which relief could be granted.
Massey applied for disability benefits because of his various health problems, including
seizures, arthritis, and severe facial pain caused by facial reconstructive surgery. Doc. 1 at 1.
Defendant Kelsey was the ALJ presided over Massey’s disability hearing. Kelsey asked
Massey’s wife how she and Massey met; Kelsey’s opinion said the following to support her
conclusion that Massey is not disabled:
I also note that the claimant was able to meet his wife through Facebook,
establish a relationship with her, and get married, all after the alleged onset
date. Furthermore, his wife testified that she leaves her two very young
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children with him while she goes out for short periods. This evidence
shows that the claimant has no more than moderate problems getting along
with others and would be able to function within the limitations that I have
assigned in the residual functional capacity.
Id. at 2. Massey alleges that Kelsey is not licensed to practice psychiatry. He also alleges that
Kelsey’s statement “that the evidence in records reflects that Carlos Massey did not have any
physical impairments which causes significant exertion limitations in the claimant’s ability to
perform basic work activities” was “in violation of U.S.C. Title 18 Section 1001,” which
criminalizes the making of materially false statements in federal proceedings, and that the
records available to Kelsey in fact revealed that Massey had medical problems with his hand.
Doc. 1 at 2. Kelsey also concluded that Massey “had mental impairments which have been
shown to cause moderate difficulties in maintaining social functioning and moderate difficulties
in concentration, persistence or pace”; Massey says this conclusion is false, though he does not
say whether his mental impairments are more or less severe than “moderate.” Id. at 3. Massey
further alleges that Kelsey stated, falsely, that the record did not contain any opinions of
physicians that stated that Massey was disabled, and that she failed to consider the effects on
Massey of the prescription medications he takes, though she was aware of the medications. Ibid.
Massey alleges that Kelsey’s statements in her opinion amounted to “Fraud Upon the Court” and
a deprivation of Massey’s constitutional rights. Ibid.
With regard to Defendant Dillon, an Administrative Appeals Judge, Massey alleges that
he conspired against Massey’s rights, as shown by the Notice of Appeals Council Action that
Dillon sent Massey, which notified him that the Appeals Council had denied Massey’s request
for review of Kelsey’s decision. Id. at 4; see also id. at 17-20 (Dillon’s letter). Massey further
alleges that Dillon ignored a letter that Massey sent to a member of the Illinois Senate, in which
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Massey explained why the denial of benefits was unlawful. Id. at 4. With respect to Defendant
Borland, an Assistant Deputy Commissioner of the SSA, Massey alleges only that he “made the
perjured statement that they [presumably referring to the SSA] had completed the evaluation of
the case [presumably Massey’s application for disability benefits] including the additional
information not previously considered and sent it to the Honorable Bobby L. Rush,” a member
of Congress. Ibid.; see also id. at 14 (Borland’s letter, which Borland apparently sent to Rush in
response to Rush’s inquiries on behalf of Massey, and which informs Rush that the SSA Appeals
Council had decided not to overturn the ALJ’s decision to deny Massey benefits).
Massey does not allege that the Commissioner himself did anything wrong, so the court
assumes that he is named as a defendant solely for purposes of Massey’s challenge under
§ 405(g) to the denial of disability benefits. If Massey were seeking to bring any other claim
against the Commissioner, that claim would have to be dismissed because the complaint contains
no other allegations that pertain to him.
In addressing the standard applicable to motions to dismiss for failure to state a claim, the
Supreme Court has stated as follows:
To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.
… [O]nly a complaint that states a plausible claim for relief survives a
motion to dismiss. Determining whether a complaint states a plausible
claim for relief will … be a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense. But where the
well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not
“show[n]” [as required by Federal Rule of Civil Procedure 8]—“that the
pleader is entitled to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 678-69 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). Moreover, “the
tenet that a court must accept as true all of the allegations contained in a complaint is
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inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. at 678. These principles make
clear that Massey has not stated a viable claim for violations of RICO or the Constitution.
Massey’s allegations against Dillon and Borland boil down to this: Massey thought he
should have been awarded benefits, and Dillon and Borland participated in some way in the
decision to deny him benefits and then sent notice of that decision. At worst, this implies that
Dillon and Borland may have contributed to an incorrect decision to deny disability benefits, but
in that case, § 405(h) makes clear that Massey’s exclusive remedy is the judicial review process
established by § 405(g). Although Massey claims that Dillon, Borland, and Kelsey conspired
together to harm him—a claim distinct from the claim that the Commissioner made a mistake in
denying him benefits—no factual allegation in the complaint could give rise to the inference that
those three individuals ever discussed Massey together, much less agreed to form a conspiracy to
deprive him of his legal rights. See Redd v. Nolan, 663 F.3d 287, 292 (7th Cir. 2011) (“[The
plaintiff’s] assertion of a conspiracy is an unsupported legal conclusion that we are not bound to
accept as true. The complaint includes not a whiff of a conspiratorial agreement or any improper
complicity between [defendants] Weber and Dougherty to support the conclusory allegation.
Taking [the plaintiff’s] allegations as a whole, we cannot reasonably infer that Detective
Dougherty was involved in ASA Weber’s complaint or that he otherwise intentionally interfered
with [the plaintiff’s] employment.”) (citation omitted); Cooney v. Rossiter, 583 F.3d 967, 970-71
(7th Cir. 2009). Nor do the complaint’s factual allegations plausibly suggest that Dillon or
Borland violated RICO or the Constitution in any other respect.
As for Kelsey, Massey’s factual allegations, taken as true, establish not only that she
rendered a decision denying Massey disability benefits that contains numerous errors, but also
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that the errors were intentional and that Kelsey meant to deprive Massey of his legal rights. But
the fact remains that all of Kelsey’s alleged wrongdoing occurred in the context of the hearing
she conducted and the decision she rendered denying Massey disability benefits. In other words,
Massey is suing Kelsey solely for actions she took in her judicial capacity as an ALJ. The
Supreme Court has held that ALJs are “entitled to absolute immunity from damages liability for
their judicial acts.” Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 757 (2002)
(quoting Butz v. Economou, 438 U.S. 478, 514 (1978)). As the Court said in Butz, “[t]hose who
complain of error in such proceedings [before ALJs] must seek agency or judicial review,” rather
than bringing a damages suit against the ALJ. 438 U.S. at 514. Another Supreme Court
decision precludes Massey from suing Kelsey and the other defendants for money damages for
allegedly violating his due process rights by denying him Social Security benefits. See
Schweiker v. Chilicky, 487 U.S. 412, 414 (1988) (holding that a Bivens action is unavailable for
such a claim).
Massey’s complaint is dismissed under 28 U.S.C. § 1915(e)(2) except to the extent that it
seeks judicial review under § 405(g) of the Commissioner’s denial of disability benefits, and is
dismissed as to all Defendants except for the Commissioner. The dismissal is without prejudice;
although the court doubts that Massey could plausibly allege his RICO and constitutional claims,
he will be given one more chance. If Massey wishes to replead those claims, he must do so by
January 18, 2013. Nothing herein should be taken to indicate a view of the merits of Massey’s
challenge under § 405(g) to the denial of his application for Social Security benefits.

December 21, 2012
United States District Judge
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