ALVAREZ v. COMMISSIONER OF SOCIAL SECURITY

Filing 24

OPINION. Signed by Judge Noel L. Hillman on 5/29/2018. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ALVAREZ v. COMMISSIONER OF
SOCIAL SECURITY,
Plaintiff,

1:17-cv-07422-NLH
OPINION

v.
NANCY A. BERRYHILL,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

APPEARANCES:
ADRIENNE FREYA JARVIS
800 NORTH KINGS HIGHWAY
SUITE 304
CHERRY HILL, NJ 08034
On behalf of Plaintiff
NAOMI B. MENDELSOHN
SOCIAL SECURITY ADMINISTRATION -- OFFICE OF GENERAL COUNSEL
REGION III
300 SPRING GARDEN STREET
SIXTH FLOOR
PHILADELPHIA, PA 19123
On behalf of Defendant
HILLMAN, District Judge
Presently before the Court is the motion of Defendant to
dismiss Plaintiff’s amended complaint. 1

1

Plaintiff claims that

Plaintiff originally filed her complaint pro se and Defendant
moved to dismiss. (Docket No. 12.) Around the same time,
counsel for Plaintiff entered her appearance and filed an
amended complaint. (Docket No. 15.) Defendant’s first motion
to dismiss is now moot and Defendant has moved to dismiss
Plaintiff’s amended complaint. (Docket No. 22.) The original
basis for this Court’s jurisdiction asserted by Plaintiff was
Section 205(g) of the Social Security Act, as amended, 42

her procedural due process rights were violated when Defendant
denied her application for Supplemental Security Income (“SSI”)
under Title XVI of the Social Security Act, 42 U.S.C. § 401, et
seq., and dismissed her request for a hearing as untimely.
Plaintiff contends that she did not receive constitutionally
required notice of her right to request a hearing after the
initial denial because the initial denial is in English and
Plaintiff is illiterate in English, and because the Social
Security Administration (“SSA”) repeatedly mailed
correspondence to an incorrect, out-of-state address.
Plaintiff further contends that her procedural due process
rights were violated when the SSA Appeals Council denied
Plaintiff’s request for review without first providing her with
documents necessary for her to show that her request for
hearing was timely or that she had good reason for filing her
request for a hearing.
Defendant has requested that the Court dismiss without
prejudice Plaintiff’s amended complaint to permit an
Administrative Law Judge (“ALJ”) to determine, in the first
instance, whether Plaintiff had good cause for failing to

U.S.C. § 405(g), but, as explained below, the proper
jurisdictional basis for Plaintiff’s action is 28 U.S.C. §
1331.
2

timely file her request for hearing.

Defendant argues that

Plaintiff cannot presently allege a violation of her due
process rights because the SSA intends to vacate the Appeals
Council’s denial and remand the matter to an ALJ to consider
whether she had good cause for not timely filing her request
for a hearing. 2 (Docket No. 22 at 2.)
In opposition, Plaintiff argues that: (1) Defendant has
cited no Federal Rule of Civil Procedure or caselaw in support
of her motion; (2) the Court should reject Defendant’s
suggestion that Plaintiff cannot proceed on her due process
violation claims because Defendant will now undo the Appeals
Council’s action; and (3) Defendant fails to address
Plaintiff’s claims regarding the notices provided in English
even though Plaintiff is illiterate in English.
The Court finds that Defendant’s proposed plan is, in

2

Defendant argues that if an ALJ finds that Plaintiff had good
reasons for not timely filing her request for a hearing,
Plaintiff will be given an opportunity for a hearing on the
merits of her disability claim. (Docket No. 22 at 2.)
Plaintiff counters that such relief is speculative. The Court
agrees. This Court is not able to predict what an ALJ might do
if the SSA vacates the Appeals Council’s decision with a
direction to reopen Plaintiff’s disability hearing. That
having been said, this Court knows of no reason why the SSA
could not unilaterally vacate the decision of the Appeals
Council in order to allow Plaintiff to seek a hearing on the
initial denial of benefits. What impact such a decision would
have on this case is a matter left for another day.
3

light of the current procedural posture of the case and the
nature of Plaintiff’s claims, insufficient to warrant dismissal
of Plaintiff’s claims for two reasons. 3
First, Defendant’s motion to dismiss does not articulate a
legal basis to permit this Court to remand the action back to
the SSA.

In fact, the Court is precluded from doing so because

in this particular matter the Court does not sit as an
appellate court reviewing a final agency decision.

Sections

405(g), (h) and 1383(c)(3) provide the exclusive jurisdictional
basis for judicial review of Social Security cases.
§§ 405(g), (h) and 1383(c)(3).

42 U.S.C.

Under these provisions, a

Social Security claimant may seek a district court’s review of
the Commissioner’s decision.

That decision, however, must be

declared as “final” in order for a district court to have
jurisdiction over the claimant’s appeal.

See id.; see also 20

C.F.R. § 416.1400(a) (providing that a claimant must complete a
four-step administrative review process to obtain a judicially
reviewable final decision).
Here, Plaintiff’s request for a hearing was denied because

3

The Court does not suggest (to the extent the Defendant does
not act unilaterally, see supra note 2) that the parties cannot
jointly agree to dismiss this matter without prejudice in order
to allow the SSA to reexamine whether Plaintiff’s request for a
hearing was improperly denied.
4

her request was untimely, and Plaintiff therefore did not
exhaust her administrative remedies and obtain a final decision
by the Commissioner.

Without having obtained a final decision,

this Court does not have jurisdiction under 42 U.S.C. § 405(g)
to review the SSA’s finding that Plaintiff’s request for a
hearing was untimely.

See Timmons v. Commissioner of Social

Security, 719 F. App’x 162, 164 (3d Cir. 2017) (where the ALJ
dismissed the claimant’s hearing request for failure to show
good cause for having missed the hearing, and no hearing was
ever held, the court lacked jurisdiction under § 405(g) to
review the disability determination because no “final decision”
had been made) (citing Califano v. Sanders, 430 U.S. 99, 108
(1977) (section 405(g) “clearly limits judicial review to a
particular type of agency action, a ‘final decision’ of the
[Commissioner] made after a hearing”); Hoye v. Sullivan, 985
F.2d 990, 991 (9th Cir. 1992) (per curiam) (holding that the
district court lacked subject matter jurisdiction under §
405(g) where Social Security claimant, by refusing to attend
scheduled ALJ hearing, failed to exhaust administrative
remedies upon which judicial review depends)).

Concomitantly,

this Court does not have jurisdiction to remand Plaintiff’s
case to the SSA for consideration of that issue, as proposed by

5

Defendant, because the Court’s ability to do so is premised on
having jurisdiction under § 405(g) in the first place. 4

See

Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991) (explaining that
under Sentence Four of 42 U.S.C. § 405(g), the court has
authority to affirm, modify, or reverse the Commissioner's
decision “with or without remanding the cause for rehearing”).
Second, Defendant’s request to remand the case does not
account for Plaintiff’s constitutional claims. 5

Plaintiff’s due

process claims against Defendant, which confer subject matter
jurisdiction under 28 U.S.C. § 1331, are cognizable independent
of any claims arising under 42 U.S.C. § 405(g).

See Penner v.

Schweiker, 701 F.2d 256, 260 (3d Cir. 1983) (explaining that §

4

This is a double-edged sword to the extent that without a
final decision from the SSA as to Plaintiff’s claim for
benefits this Court will have no occasion to address that issue
ab initio in this proceeding.
5

The Court does not find persuasive Defendant’s argument that
Plaintiff cannot maintain her due process violation claims
because the SSA proposes to rewind the clock back to the point
where the Appeals Council will consider whether Plaintiff had
good cause for filing an untimely hearing request. That
proposal does not absolve the SSA of constitutional violations
it may have originally committed, and it does not address
Plaintiff’s claims regarding improper notice due to her
illiteracy in English. As noted above, or as suggested, in
footnotes 3 and 4 supra, both sides could benefit from a mutual
agreement to dismiss this matter without prejudice to allow the
administrative process to correct any errors that may have
occurred.
6

405(g) did not act as a bar to the resolution of constitutional
questions raised by the claimant when seeking review of the
Secretary's decision because “Constitutional questions
obviously are unsuited to resolution in administrative hearing
procedures and, therefore, access to the courts is essential to
the decision of such questions,” and finding that “judicial
review was proper where the Secretary's decision to deny or
discontinue social security benefits is challenged on
constitutional grounds notwithstanding the absence of a prior
administrative hearing”); id. (citing Parker v. Califano, 644
F.2d 1199, 1203 (6th Cir. 1981) (“It is axiomatic that Section
205(b) of the Social Security Act, 42 U.S.C. § 405(g), and due
process require that a claimant receive meaningful notice and
an opportunity to be heard before her claim for disability
benefits may be denied.”)); Timmons, 719 F. App'x at 164–65
(finding that the district court properly concluded that it
lacked subject matter jurisdiction under § 405(g) because the
denial of the plaintiff’s benefits claim for an untimely
request for a hearing was not a final decision, but finding
that the district court erred by also dismissing the
plaintiff’s due process violations claims because those claims
provided the court with subject matter jurisdiction under §

7

1331).
Consequently, the Court cannot dismiss Plaintiff’s amended
complaint and remand the matter as requested by Defendant
because the Court does not have jurisdiction to review the
SSA’s actions under 42 U.S.C. § 405(g) since the SSA did not
issue an appealable final decision.

Moreover, because

Plaintiff’s constitutional claims separately confer subject
matter jurisdiction under 28 U.S.C. § 1331, and Defendant has
not articulated a viable basis to dismiss Plaintiff’s
constitutional claims, the Court may not dismiss them.

An

appropriate Order will be entered.

Date:
May 29, 2018
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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