Bennerman v. Commissioner of Social Secuity
Filing
19
ORDER granting 13 Motion for Judgment on the Pleadings. For the reasons set forth in the enclosed Memorandum & Order, defendant's motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) is granted and this case is dis missed pursuant to Federal Rule of Civil Procedure 12(b)(1) because this court does not have subject matter jurisdiction over this case. The clerk of court is respectfully ordered to mail a copy of this Memorandum & Order to plaintiff and to close this case. Ordered by Judge Kiyo A. Matsumoto on 12/23/2013. (Raghunathan, Abhishek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------X
TERRIE BENNERMAN,
NOT FOR PRINT OR
ELECTRONIC PUBLICATION
Plaintiff,
MEMORANDUM & ORDER
11-CV-6384
v.
COMMISIONER OF SOCIAL SECURITY,
Defendant.
------------------------------X
MATSUMOTO, United States District Judge:
Plaintiff pro se Terrie Bennerman appeals from former
commissioner of social security Michael Astrue’s (“commissioner”
or “defendant”) decision granting her 2009 application for
Social Security Disability (“SSD”) under Title II of the Social
Security Act (“the Act”) and Supplemental Security Income
(“SSI”) under Title XVI of the Act.
Plaintiff appeals,
asserting jurisdiction under 42 U.S.C. § 405(g) and/or 42 U.S.C.
§ 1383(c)(3), because she seeks to reopen a December 2002
initial determination by the Social Security Administration (the
“SSA”) denying a previous application she had filed.
For the
reasons provided below, the court grants defendant’s motion for
judgment on the pleadings under Federal Rule of Civil Procedure
12(c) and dismisses this case for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1).
BACKGROUND
Plaintiff first applied for Social Security disability
benefits under Title II of the Act on November 15, 2002,
alleging a disability onset date of April 12, 2002.
Administrative Record (“AR”) at 5, 66, 100.)
(Certified
But plaintiff’s
claim was denied at the initial level on December 26, 2002.
(Id.) 1
Plaintiff filed another application for SSI benefits on
October 20, 2009, which was given a protective filing date of
September 30, 2009.
(Id. at 59-65, 99.)
Plaintiff initially
claimed she had been disabled since October 26, 2008.
59.)
(Id. at
After a SSA claims representative determined that
plaintiff had insured status under Title II through March 31,
2007, the SSA representative changed plaintiff’s alleged
disability onset date to December 27, 2002, and deemed
plaintiff’s SSI claim to be a concurrent claim for disability
insurance benefits.
(Id.)
Plaintiff’s claims were denied at the initial level on
February 17, 2010.
(Id. at 18-25, 26, 68.)
1
Plaintiff then
The Appeals Council states that plaintiff’s initial denial was on December
24, 2002, (AR at 5), although other information in the record states the date
of plaintiff’s initial denial was December 26, 2002, (AR at 100). The court
assumes for the purposes of this opinion that the date of denial was December
26, 2002, but notes that it would make no difference to the court’s analysis
or opinion if the correct date of plaintiff’s initial denial was in fact
December 24, 2002.
2
requested a hearing before an Administrative Law Judge (“ALJ”),
and ALJ Robert E. Ward scheduled a hearing to determine if
plaintiff was disabled under section 1614(a)(3) of the Act.
(Id. at 18-25, 26, 37, 68.)
At a June 16, 2010 hearing,
plaintiff stated that she was changing the onset date of her
disability to October 26, 2008.
(Id. at 244-45.)
Plaintiff
also stated that her disability was “probably moderate, not
severe” around 2002, that she had thought that she “would be
able to return to work” at that time, and that she had done
seasonal tax work for H&R Block in 2003.
(Id. at 245, 249.)
After hearing testimony and receiving evidence, ALJ Ward stated
that he would find plaintiff disabled as of October 28, 2008.
(Id. at 256.)
Plaintiff appeared before ALJ Ward for a second
hearing on September 14, 2010, to address Title II disability
prior to March 31, 2007 and Title XVI benefits as of September
30, 2009.
(Id. at 229.)
After reviewing records, including
medical records, and receiving additional evidence and
testimony, ALJ Ward found that plaintiff had been disabled since
2002.
(Id. at 235.)
ALJ Ward informed plaintiff that she would
not be able to receive Title XVI benefits prior to 2009 but that
she would be able to receive “several years of back payment”
under Title II.
(Id. at 236.)
ALJ Ward issued a written
decision on September 22, 2010, in which he found that plaintiff
3
had been disabled under sections 216(i) and 223(d) of the Act
since December 27, 2002, based on her application for disability
and disability insurance benefits protectively filed on
September 30, 2009, and that plaintiff had been disabled since
December 27, 2002, under section 1614(a)(3)(A) of the Act based
on her application for SSI protectively filed on September 30,
2009.
(Id. at 10-17.)
On October 12, 2010, plaintiff appealed ALJ Ward’s
decision to the Appeals Council, claiming she was only receiving
benefits extending back to October 2008 and asking for her 2002
case to be reopened.
(Id. at 8-9.)
On November 14, 2011, the
Appeals Council denied plaintiff’s request to reopen her 2002
case.
(Id. at 4-7.)
This appeal followed.
DISCUSSION
I.
Standard of Review
The standard of review in a motion for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure Rule 12(c)
is identical to that for a motion to dismiss brought pursuant to
Federal Rule of Civil Procedure 12(b)(6).
Irish Lesbian & Gay
Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998).
“A well-
pled complaint ‘must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its
face.’”
Nakahata v. New York-Presbyterian Healthcare Sys., 723
4
F.3d 192, 197 (2d Cir. 2013) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)).
“A case is properly dismissed for lack of subject
matter jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)
(citing Fed. R. Civ. P. 12(b)(1)).
“A plaintiff asserting
subject matter jurisdiction has the burden of proving by a
preponderance of the evidence that it exists.”
Id. (citing
Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996)).
Additionally, in a motion to dismiss for lack of subject matter
jurisdiction, “the defendant may challenge either the legal or
factual sufficiency of the plaintiff’s assertion of
jurisdiction, or both.”
Robinson v. Gov’t of Malaysia, 269 F.3d
133, 140 (2d Cir. 2001). 2
II.
Subject Matter Jurisdiction
Defendant argues that this court lacks subject matter
jurisdiction over this case because (a) ALJ Ward granted
plaintiff a fully favorable decision on her 2009 claims, and
2
“[I]n adjudicating a motion to dismiss for lack of subject-matter
jurisdiction, a district court may resolve disputed factual issues by
reference to evidence outside the pleadings, including affidavits.” State
Emps. Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 77 n.4 (2d Cir.
2007); see also Burfeindt v. Postupack, 509 F. App’x 65, 67 (2d Cir. 2013)
(summary order) (“[I]n dismissing a complaint for lack of subject-matter
jurisdiction under Rule 12(b)(1), a court ‘may refer to evidence outside the
pleadings.’”) (quoting Makarova, 201 F.3d at 113).
5
this court lacks jurisdiction over appeals of fully favorable
decisions, and (b) the denial of a request to reopen a case is
not subject to judicial review.
These arguments will be
discussed below.
a. Fully Favorable Decision
Congress prescribes the procedures, conditions, and
courts in which a claimant may seek judicial review of an
administrative order. City of Tacoma v. Taxpayers of Tacoma, 357
U.S. 320, 336 (1958).
Section 405(g) of the Act further
provides the exclusive means for obtaining judicial review of a
final decision by the commissioner.
42 U.S.C. § 405(g), (h).
Congress has authorized limited judicial review for claims
arising under Titles II and XVI of the Act.
42 U.S.C. § 405(g);
42 U.S.C. § 1383(c)(3) (stating that “[t]he final determination
of the Commissioner of Social Security after a hearing . . .
shall be subject to judicial review as provided in [42 U.S.C. §
405(g)] to the same extent as the Commissioner’s final decision
under [42 U.S.C. § 405(g)]”).
The Second Circuit has consistently held that, absent
certain limited exceptions related to constitutional equal
protection and due process claims, the waiver of sovereign
immunity in 42 U.S.C. § 405(g) “makes no provision for judicial
review of a determination favorable to the complainant,” thereby
generally precluding review of favorable decisions.
6
Jones v.
Califano, 576 F.2d 12, 18 (2d Cir. 1978) (emphasis in original);
see also Heller v. Comm’r, 328 F. App’x 74, 75 (2d Cir. 2009)
(summary order) (same); Louis v. Comm’r, 349 F. App’x 576, 577
(2d Cir. 2009) (summary order) (affirming district court ruling
that it lacked subject matter jurisdiction to review a fully
favorable decision); Wheeler v. Heckler, 719 F.2d 595, 600 (2d
Cir. 1983) (“judicial review of favorable decisions is generally
unavailable”).
Here, the record shows that plaintiff received a fully
favorable decision on September 22, 2010.
Ward’s “Fully Favorable” decision).).
(AR at 10-17 (ALJ
Plaintiff has made no
allegation that she was deprived of due process or equal
protection, (ECF No. 15, Plaintiff’s Opposition (“Opp.”),
7/5/12), and the record does not contain any indication that her
case involves any other “colorable constitutional claim[s].”
Jones, 576 F.2d at 18.
Thus, this court lacks subject matter
jurisdiction to review the fully favorable decision awarded to
plaintiff.
b. Request to Reopen 2002 Case
Although this court has already determined it lacks
subject matter jurisdiction to review plaintiff’s appeal because
she received a fully favorable decision, the court will also
consider defendant’s argument that it lacks jurisdiction to
review the commissioner’s decision declining to reopen
7
plaintiff’s 2002 case.
(ECF No. 14, Memorandum of Law in
Support of Motion, 6/18/12, at 9-10.)
Federal courts generally do not have subject matter
jurisdiction to review the SSA’s denial of a request to reopen a
prior determination.
See Califano v. Sanders, 430 U.S. 99, 107-
110 (1977) (“Congress’ determination so to limit judicial review
to the original decision denying benefits is a policy choice
obviously designed to forestall repetitive or belated litigation
of stale eligibility claims.”); Byam v. Barnhart, 336 F.3d 172,
179-180 (2d Cir. 2003) (“As a general rule, federal courts lack
jurisdiction to review an administrative decision not to reopen
a previous claim for benefits . . . . The Commissioner's
decision not to reopen a prior determination is not a final
decision for the purposes of § 405(g), and thus is generally
unreviewable even if there was a hearing in the case.”).
“Nevertheless, federal courts may review the
Commissioner's decision not to reopen a disability application
in two circumstances: where the Commissioner has constructively
reopened the case and where the claimant has been denied due
process.”
Id. at 180.
A constructive reopening occurs when
“the Commissioner ‘reviews the entire record and renders a
decision on the merits.’”
Id. (quoting Malave v. Sullivan, 777
F. Supp. 247, 251 (S.D.N.Y. 1991)).
In such a case, “‘the
earlier decisions will be deemed to have been reopened, and any
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claim of administrative res judicata to have been waived’ and
thus, ‘the claim is . . . subject to judicial review.’”
Id.
(quoting Malave, 777 F. Supp. at 251).
The SSA’s regulations provide that a Title II
determination or decision may be reopened (a) within twelve
months of the date of the notice of initial determination for
any reason; (b) within four years of the date of the notice of
the initial determination for good cause; and (c) at any other
time under certain narrowly defined circumstances not relevant
in this action, such as if the initial determination was
obtained by fraud.
20 C.F.R. § 404.988 (2013).
Similarly, a
Title XVI determination or decision may be reopened (a) within
twelve months of the date of the notice of the initial
determination for any reason; (b) within two years of the date
of the notice of initial determination for good cause; and (c)
at any time if the determination was obtained by fraud or
similar fault.
20 C.F.R. § 416.1488 (2013).
Consequently,
absent certain limited exceptions not at issue in this case, the
SSA’s regulations preclude the commissioner from reopening a
determination under Title II after four years and Title XVI
after two years.
Compare Coup v. Heckler, 834 F.2d 313, 317-18
(3d Cir. 1987) (constructive reopening for good cause found
where new application was made within four years of initial
determination), with Kasey v. Sullivan, 3 F.3d 75, 79 (4th Cir.
9
1993) (no constructive reopening possible where plaintiff’s
claim “was filed more than four years after the determinations
of his previous applications”).
In this case, the initial determination denying
plaintiff’s 2002 claims was made on December 26, 2002, but
plaintiff did not file another application until October 20,
2009, which was given a protective filing date of September 30,
2009, more than six years after the initial determination.
at 99-100.)
(AR
The Appeals Council denied plaintiff’s request to
reopen the 2002 claim on November 14, 2011, (AR at 4-7), because
the commissioner could not reopen plaintiff’s claim under the
applicable SSA regulations.
C.F.R. § 416.1488 (2013).
20 C.F.R. § 404.988(a) (2013), 20
Therefore, because more than four
years had elapsed between the 2002 determination and plaintiff’s
2009 application, the court finds that the commissioner could
not and did not constructively reopen plaintiff’s 2002 claim. 3
3
Plaintiff cursorily asserts in her opposition that she received incorrect
information from the SSA “in 2005 and/or 2008.” (Opp. at 6.) A claim based
on misinformation “must contain information that will enable [the SSA] to
determine” if it did provide misinformation regarding eligibility for
benefits. 20 C.F.R. § 404.633(f) (2013). But previous lack of knowledge
about the rules concerning the receipt of benefits is not sufficient to
establish an earlier filing date. §§ 20 C.F.R. 416.340, 416.345, 416.350
(2013); see Binder v. Barnhart, 307 F. Supp. 2d 471, 473 (E.D.N.Y. 2004).
Plaintiff’s allegations, which have no documentary or other factual support,
fail to satisfy the requirements for a misinformation claim because they are
based solely on plaintiff’s statements. 20 C.F.R. § 404.633(d)(2) (2013);
see Henry v. Comm’r, 456 F. App’x 13, 15-16 (2d Cir. 2011) (summary order)
(plaintiff failed to present a properly supported misinformation claim
because his allegations were made for the first time in a letter to the
Appeals Council, offered no “preferred evidence” or “other evidence” as
required by 20 C.F.R. § 404.633(d), and relied on general allegations
conveyed by his lawyer); Grubart v. Shalala, 913 F. Supp. 243, 246-47
10
Finally, there is no indication in the record that ALJ
Ward considered any evidence or facts in plaintiff’s 2002
application, (AR at 10-17, 229-257), because he only found
plaintiff disabled as of December 27, 2002, or a day after an
initial determination had been made on plaintiff’s application
on December 26, 2002, (id. at 10-17, 100).
Accordingly, because
ALJ Ward considered and “discussed only the evidence arising
after the rejection of plaintiff's previous claim . . . . this
[c]ourt does not have jurisdiction to review the decision not to
reopen plaintiff’s previous” application.
Trice v. Astrue, No.
6:02-CV-450, 2008 U.S. Dist. LEXIS 23129, at *16 (N.D.N.Y Mar.
24, 2008).
(S.D.N.Y. 1996) (adopting report & recommendation holding that claimant’s
testimony and contemporaneous notes about a phone call with the SSA failed to
satisfy the requirements for a misinformation claim in part because “there
was no objective evidence supporting [the claimant’s] position.”).
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CONCLUSION
For the reasons set forth above, defendant’s motion
for judgment on the pleadings under Federal Rule of Civil
Procedure 12(c) is granted and this case is dismissed pursuant
to Federal Rule of Civil Procedure 12(b)(1) because this court
does not have subject matter jurisdiction over this case.
The
clerk of court is respectfully ordered to mail a copy of this
Memorandum & Order to plaintiff and to close this case.
SO ORDERED.
Dated: December 23, 2013
Brooklyn, New York
______________/s/
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
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