BOLEY v. COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION
Filing
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ORDER granting Defendant's 10 Motion to Dismiss. Signed by Judge Richard L. Young on 1/24/2013. (TMD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
MARILYN R. BOLEY,
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Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.
3:12-cv-27-RLY-WGH
ENTRY ON DEFENDANT’S MOTION TO DISMISS
I.
Introduction
This matter is before the court on the motion of Defendant Michael J. Astrue,
Commissioner of the Social Security Administration (“Commissioner”), to dismiss the
complaint of Plaintiff Marilyn L. Boley (“Boley”) for lack of subject matter jurisdiction.
For the reasons set forth below, the Commissioner’s motion is GRANTED.
II.
Factual and Procedural Background
Boley applied for disability benefits (“DIB”) pro se with the Social Security
Administration (“SSA”) on June 1, 2010. (Amended Complaint Facts ¶ 1). Her
application was initially denied on August 25, 2010, and Boley retained counsel on
September 21, 2010. (Id. ¶ 2). Counsel filed Boley’s Request for Reconsideration and
documentation of her appointment on October 19, 2010. (Id. ¶ 3). The Request for
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Reconsideration was denied on December 13, 2010; the denial was mailed to Boley but
not her attorney. (Id. ¶¶ 5-6; Defendant’s Ex. 2).
Boley’s counsel inquired of the Vincennes, Indiana SSA office on August 30,
2011, as to why she (counsel) had not received a copy of the denial of Boley’s Request
for Reconsideration. An SSA supervisor told counsel that there had been a “training
error” in which the employee did not enter the information about Boley’s counsel and her
claim for benefits into the system. (Id. ¶ 6). On September 2, 2011, counsel tendered a
Request for Hearing (“Request”). (Id. ¶ 7). On September 6, 2011, both Boley and her
counsel received a letter informing them that Boley’s Request was denied because it was
not timely filed. (Id. ¶ 8). On October 19, 2011, counsel received a letter from an
Administrative Law Judge (“ALJ”), requesting that Boley explain why her Request had
been untimely filed. (Id. ¶ 11). Counsel sent a letter on Boley’s behalf due to Boley’s
hospitalization and “incapacitating illness.” (Id.). On November 6, 2011, the ALJ
requested to hear from Boley personally; per the ALJ’s request, Boley sent a letter on
November 11, 2011, explaining why her Request was not timely filed. (Id. ¶ 12-13). On
November 16, 2011, the ALJ issued a notice of dismissal for failing to file the Request
within 65 days of the SSA’s reconsideration denial. (Id. ¶ 14; Defendant’s Ex. 4 at 4).
The ALJ denied Boley’s motion to vacate the dismissal on December 8, 2011 (id. ¶ 15;
Plaintiff’s Ex. C), and the Appeals Council denied Boley’s Request for Review on
February 7, 2012. (Id. ¶ 16; Plaintiff’s Ex. D).
Boley filed her complaint on March 8, 2012, alleging violations of SSA regulation
404.911 (20 C.F.R. § 404.911) and due process of law under the United States
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Constitution and Social Security Act (“the Act”). (Amended Complaint Statement of
Claims ¶¶ 21-22). Defendant moves to dismiss the complaint on the grounds that Boley
failed to obtain a final decision of the Commissioner after a hearing, and thus the court
lacks subject matter jurisdiction. Congress has explicitly stated that, in claims arising
under the Social Security Act, judicial review is permitted only in accordance with 42
U.S.C. § 405(g), which states:
[a]ny 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.
42 U.S.C. § 405(g).
III.
Legal Standard
A motion to dismiss for lack of subject matter jurisdiction pursuant to Federal
Rule of Civil Procedure 12(b)(1) raises an issue that must be examined by a court at
every stage of litigation. United Phosphorous, Ltd. v. Angus Chemical Co., 322 F.3d
942, 946 (7th Cir. 2003), overruled on other grounds by Minn-Chem, Inc. v. Agrium, Inc.,
683 F.3d 845 (7th Cir. 2012). If a court lacks subject matter jurisdiction, it must dismiss
the complaint. Arbaugh v. Y&H Corp., 546 U.S. 500, 514, 126 S. Ct. 1235, 163 L. Ed.
2d 1097 (2006). If the movant asserts that despite the complaint’s facial sufficiency,
subject matter jurisdiction does not exist, “[t]he court may look beyond the jurisdictional
allegations of the complaint and view whatever evidence has been submitted on the issue
to determine whether in fact subject matter jurisdiction exists.” Alicea-Hernandez v.
Catholic Bishop of Chicago, 320 F.3d 698, 702 (7th Cir. 2003). The burden of proof is on
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the party asserting jurisdiction to prove subject matter jurisdiction exists. United
Phosphorous, Ltd., 322 F.3d at 946.
IV.
Analysis
Given the Commissioner’s claim that this court lacks subject matter jurisdiction,
the court must first examine whether there is an outright jurisdictional bar to this court
hearing the claim. If there is a jurisdictional bar, the court then evaluates whether
Plaintiff has a colorable constitutional claim. See Califano v. Sanders, 430 U.S. 99, 97 S.
Ct. 980, 51 L. Ed. 2d 192 (1977).
A.
Boley has failed to obtain a final decision that would allow her judicial
review under 42 U.S.C. § 405(g)
Section 405(g) is the only means by which a DIB claimant may seek judicial
review of the Commissioner’s decision, and thus a district court only has subject matter
jurisdiction to review a final decision. The Act allows the Commissioner to define “final
decision” through its regulations. 42 U.S.C. § 405(l); Weinberger v. Salfi, 422 U.S. 749,
766, 95 S. Ct. 2457, 45 L. Ed.2d 522 (1975). The regulations provide that the dismissal
of a request for hearing is not subject to judicial review. And, the only way to overturn
the dismissal of a request for a hearing before an ALJ is either by an ALJ or the Appeals
Council vacating the dismissal. (20 C.F.R. §§ 404.959, 416.1459). Since there is no
mechanism for judicial review in the regulation, Defendant argues there could be no final
Commissioner decision when the ALJ dismissed Boley’s request for a hearing, and thus
the court lacks jurisdiction to hear Boley’s claim.
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Boley also fails to cite, and the court cannot find, any case law that suggests the
court can otherwise maintain subject matter jurisdiction over her claim. Therefore, the
court lacks subject matter jurisdiction and must dismiss Boley’s claim pursuant to Rule
12(b)(1) unless it finds the ALJ’s denial of Boley’s Request violated due process.
B.
Defendant’s notice to Boley and consideration of her reasons for failing
to timely file satisfied Constitutional due process
Constitutional claims, such as alleged violations of the Fifth Amendment due
process clause,1 are uniquely suited to judicial review. Sanders, 430 U.S. at 109; Shrader
v. Harris, 631 F.2d 297, 300 (4th Cir. 1980). Due process requires that a person faced
with government deprivation of a protected property interest, such as DIB, receive notice
and an opportunity to be heard. Mathews v. Eldridge, 424 U.S. 319, 333-34, 96 S. Ct.
893, 47 L.Ed.2d 18 (1976) (citations omitted). It further requires that “procedures be
tailored, in light of the decision to be made, to the capacities and circumstances of those
who are to be heard, to insure that they are given a meaningful opportunity to present
their case.” Id. at 349 (internal quotation omitted). The procedures afforded Boley by
the Commissioner met this threshold, despite SSA’s clerical error.
In declining Boley’s request for a hearing, the ALJ stated that the relevant SSA
regulation requires a hearing request to be filed within 65 days2 of receiving notice of the
Denial of Request for Reconsideration. (Defendant’s Ex. 4 at 4 (citing 20 CFR §
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“No person . . . shall be deprived of life, liberty, or property without due process of law.” U.S.
CONST. amend. V.
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Receipt is presumed within five (5) days of mailing, so the 60-day deadline (20 CFR §
404.933(b)(1)) for filing a claim is extended to 65 days, absent proof by a claimant that she did
not receive the notice of denial within five (5) days. (Defendant’s Ex. 4 at 4).
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404.933(b)(1))). The ALJ conceded that the SSA office erred in not communicating the
denial to Boley’s attorney. However, Boley failed to timely file a request for a hearing
despite receiving notice of the denial. (Defendant’s Ex. 4 at 4-5). Boley never asserted
that she lacked the ability to understand her procedural responsibilities to further pursue
her claim—that is, requesting a hearing in front of an ALJ and thus being afforded the
opportunity to be heard.
Boley cites Shrader, in which the Fourth Circuit reversed the summary dismissal
of the plaintiff’s DIB claim without hearing, since the plaintiff was “so mentally ill that
he [could not] understand the administrative procedure.” 631 F.2d at 301. The Court
refused to “attribute to Congress an intent to apply the doctrine of res judicata to deprive
such a person of a hearing.” Id. at 302. Boley asserts her medical condition—she had
been diagnosed with breast cancer, was preparing to undergo a double mastectomy, and
had other disabling conditions—made her just as unable to respond in 60 days as the
Shrader claimant.
Boley’s comparison is flawed in two respects. First, unlike the Shrader claimant,
Boley was capable of understanding the nature of the administrative process; she properly
completed the initial filing pro se. (Amended Complaint Facts ¶ 1). Boley also never
asserted that her subsequent neuropsychological issues (Plaintiff’s Ex. A at 3) rendered
her mentally incompetent, incapable of communicating with her attorney about the denial
notice she received, or otherwise prevented her from understanding the administrative
process going forward. Second, she offers no proof that the Shrader Court intended to
create a broader exception to the final decision requirement, one that would extend
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beyond the Shrader claimant’s severe mental impairment to cover someone in Boley’s
condition. Indeed, the Shrader Court explicitly limited its opinion to cover only mentally
ill claimants. 631 F.2d at 302.
Boley also claims that the regulation allowing an ALJ or the Appeals Council to
excuse missing a filing deadline for good cause (20 C.F.R. § 404.911) dictates that her
claim be allowed to proceed, and that the ALJ’s denial contravened the regulation.3
(Amended Complaint Statement of Claims ¶ 21). She asserts that because she, as
opposed to her attorney, received the Denial of Reconsideration, SSA’s action was a
misleading one that must be accounted for in determining whether to excuse a tardy
filing. 20 CFR § 404.911(a)(2). SSA’s error is not dispositive; it is merely a factor in the
ALJ’s consideration as to whether, given the totality of circumstances, good cause existed
for failing to make a timely filing. 20 CFR § 404.911(a).
It was not, as Boley argues, SSA’s training errors that prevented her from timely
filing her request. The ALJ acknowledged SSA erred in not sending notice to counsel but
stated that Boley’s “failure to do anything at all after receiving the notice herself does not
constitute good cause.” (Defendant’s Ex. 4 at 4). This suggests that the ALJ properly
considered SSA’s error against other considerations and found good cause did not exist,
thus satisfying due process. Finally, Boley’s situation does not fit squarely into SSA’s
examples of good cause. 20 CFR § 404.911(b). While not an exclusive list, it bolsters
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The criteria listed in 20 C.F.R. § 404.911 are to be used in determining whether good cause
exists for failing to timely file the request. 20 C.F.R. § 404.933(c).
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the court’s conclusion that the ALJ’s decisions to deny Boley’s request for hearing and to
vacate the denial were well-grounded and did not violate due process.
V.
Conclusion
For the foregoing reasons, Defendant’s Motion to Dismiss (Docket # 10) is
GRANTED. Boley’s complaint is hereby DISMISSED with prejudice. Judgment
consistent with this Entry shall now ensue.
SO ORDERED the 24th day of January 2013.
___________________________________
__________________________________
RICHARD L. YOUNG, CHIEF JUDGE
RICHARD L. YOUNG, CHIEF
United States District Court JUDGE
United District of Indiana
SouthernStates District Court
Southern District of Indiana
Distributed Electronically to Registered Counsel of Record.
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