PAYNE v. ASTRUE
Filing
18
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 02/11/2015. ORDERED that the Commissioner's Motion to Dismiss (Doc. 8 ) is GRANTED and that this action is dismissed with prejudice. A judgment consistent with this Memorandum Opinion and Order will be entered contemporaneously herewith. Civil Case 1:12CV1127.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ARNOLD PAYNE,
Plaintiff,
v.
CAROLYN W. COLVIN,1
Acting Commissioner of Social
Security,
Defendant.
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1:12CV1127
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff Arnold Payne (“Plaintiff”) brought this action to
challenge a decision of the Social Security Administration
(“Administration” or “SSA”) to limit the amounts of Disability
Insurance Benefits (“DIB”) awarded to him under Title II of the
Social Security Act (“Act”) and Supplemental Security Income
(“SSI”) awarded to him under Title XVI of the Act.
The Commissioner of Social Security (“Commissioner”) has
filed a Motion to Dismiss, claiming that this court lacks
1
Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as the Defendant in this suit.
No further action need be taken to continue this suit by reason
of the last sentence of section 205(g) of the Social Security
Act. 42 U.S.C. § 405(g).
subject matter jurisdiction to hear Plaintiff’s claim.
8.)2
(Doc.
In his Complaint, Plaintiff alleges that this court has
jurisdiction under section 205(g) of the Act, as amended and
codified at 42 U.S.C. § 405(g), and under section 1631(c) of the
Act, as amended and codified at 42 U.S.C. § 1383(c).
(“Compl.”) (Doc. 2).)
(Complaint
Plaintiff has responded to the
Commissioner’s Motion to Dismiss (Doc. 16), and the matter is
now ripe for review.
For the reasons set forth below, the Commissioner’s motion
will be granted, and Plaintiff’s case will be dismissed.
I.
BACKGROUND
The administrative record has been certified to this court
for review.3
Plaintiff filed an application for DIB and SSI on
July 1, 2009, alleging a disability beginning on May 11, 2007.
The claims were denied initially and upon reconsideration.
A
hearing was held before an Administrative Law Judge (“ALJ”) on
2
The Commissioner filed a Memorandum in Support of the
Motion to Dismiss on January 29, 2013. (Doc. 9.) The
Commissioner subsequently filed a Motion to Amend that
Memorandum and an accompanying exhibit. On February 22, 2013,
the Motion to Amend was granted (Doc. 15), and as a result, this
court will review the Commissioner’s Amended Memorandum (Doc.
11) and the amended Exhibit E (Doc. 11-7).
3
Transcript citations refer to the Administrative
Transcript of Record filed manually with the Commissioner’s
Answer. (Doc. 8; see also Docs. 11-1, 11-2, 11-3 (providing
electronic copies of the Administrative Transcript of Record).)
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November 16, 2010, and in a decision dated December 10, 2010,
the ALJ granted Plaintiff’s application for the closed period of
May 11, 2007 to November 16, 2010 (the “closed period”).
(Tr.
at 11-20).
The ALJ found that, during the closed period, Plaintiff had
the following severe impairments: degenerative disc disease of
the lumbar and cervical spines (status post lumbar and cervical
surgeries); degenerative acromioclavicular joint disease;
osteoarthritis of the left acromioclavicular joint; adhesive
capsulitis; and bicep tendonitis (status post shoulder
surgeries). (Id. at 15.) The ALJ found that Plaintiff’s
impairments, alone or in combination, did not meet or equal a
Listing impairment.
(Id.)
Nonetheless, the ALJ determined that, through the closed
period, Plaintiff had the residual functional capacity (“RFC”)
to perform a less than full range of sedentary work.
He had the
ability to lift and/or carry less than 10 pounds, sit less than
2 hours in an 8-hour workday, and stand and/or walk less than 2
hours in an 8-hour workday.
The ALJ determined that these
impairments imposed additional limitations that significantly
interfered with Plaintiff’s ability to perform full time work
activity on a consistent and sustained basis.
As there were no
jobs that existed that Plaintiff was capable of performing, the
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ALJ found that, for the duration of the closed period, Plaintiff
was disabled.
(Id. at 15, 17, 18.)
Having found that Plaintiff was disabled during the closed
period, the ALJ considered whether the claimant was disabled
after the closed period.
The ALJ found that Plaintiff
experienced medical improvement as of November 17, 2010.
at 18.)
(Id.
Beginning at that time, the ALJ determined that
Plaintiff had the RFC to perform a full range of medium work.
(Id. at 19.)
The ALJ determined that Plaintiff was able to
perform his past relevant work as a saw operator. (Id.)
Thus,
as of November 17, 2010, the ALJ concluded that Plaintiff was
not disabled.
(Id.)
On December 26, 2010, the Social Security Administration’s
Office of Central Operations issued Plaintiff a Notice of Award.
The Notice recognized that Plaintiff became disabled as of May
11, 2007, but the Notice indicated that the Administration “can
pay benefits no earlier than 12 months before the month of
filing.”
(SSA Notice of Award (Doc. 9-5) at 1.)
Because
Plaintiff filed his application for benefits on July 1, 2009, he
could only receive back payments starting on the date twelve
months before he filed his application - July 1, 2008.
(Id.)
On February 4, 2011, Plaintiff through counsel wrote a
letter to the ALJ, stating that the Notice of Award “does not
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comply with the agreement [Plaintiff] entered with the [ALJ],”
as Plaintiff and the ALJ “agreed . . . that [Plaintiff’s]
benefits would begin May 2007 not July 2008.”
(Tr. at 190.)
Plaintiff requested that the ALJ “issue an Order directing the
payment center to pay [Plaintiff] Social Security Disability
and/or Supplemental Security Benefits from May 2007 through
November 16, 2010 pursuant to the agreement [Plaintiff] made
with [the ALJ].”
(Id.)
Three days later on February 7, 2011, Plaintiff filed a
“Request for Review of Hearing Decision/Order” of the
“unfavorable decision that was issued on December 10, 2011
[sic].”
(Id. at 5-6.)
In his request for review, Plaintiff
claimed that the ALJ’s decision “was not supported by
substantial competent evidence of records” and that the ALJ
“committed error of law.”
(Id. at 6.)
The Appeals Council
disagreed and, in a Notice dated August 30, 2012, stated that it
“found no reason under [its] rules to review the Administrative
Law Judge’s decision.”
(Id. at 1.)
Based on the Appeals Council’s denial of Plaintiff’s
request for review of the ALJ’s decision, the ALJ’s decision is
the final decision of the Commissioner.
(Id.)
On October 22,
2012, Plaintiff filed the present action seeking judicial review
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of “a decision(s) of the [Commissioner] adverse to the
Plaintiff.” (Compl. (Doc. 2) at 1.)
II.
LEGAL STANDARD
Section 405(g) provides for judicial review of actions of
the Administration where (1) a “final decision” of the
Commissioner has been rendered after a hearing; (2) the claimant
has commenced a civil action within 60 days after the mailing of
notice of such decision; and (3) the civil action has been filed
in an appropriate judicial district.
42 U.S.C. § 405(g);
Weinberger v. Salfi, 422 U.S. 749, 763–64 (1975).
Section
1383(c) provides a similar type of judicial review of SSI
determinations.
See 42 U.S.C. § 1383(c).
When conducting such judicial review, this court is to
consider whether the ALJ’s factual findings as to Plaintiff’s
disability are “supported by substantial evidence and were
reached through application of the correct legal standard.”
Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal
quotation marks omitted).
The Act then goes on to indicate that
§ 405(g), in its limited form, provides the sole means of
judicial review for the Commissioner’s determination of
disability.
See 42 U.S.C. § 405(h); cf. Ezell v. Bowen, 849
F.2d 844, 845 (4th Cir. 1988); Frady v. Harris, 646 F.2d 143,
144 (4th Cir. 1981).
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Under the Act, other actions of the Administration, such as
the decision on whether to reopen a case, are not “final
decision[s] of the [Commissioner of Social Security] made after
a hearing,” and as a result, those decisions are not subject to
judicial review under § 405(g). Califano v. Sanders, 430 U.S.
99, 108 (1977) (citing 42 U.S.C. § 405(g)).
Indeed, the Supreme
Court has recognized that Congress made a “policy choice” to
“limit judicial review to the original decision denying
benefits” and did so “to forestall repetitive or belated
litigation.”
Id.
Because the Act does not provide the basis for judicial
review, “the opportunity to reopen final decisions and any
hearing convened to determine the propriety of such action are
afforded by the [Commissioner's] regulations.”
Id.
The
regulations provide a non-exhaustive list of administrative
actions that are not “initial determinations” and, as a result,
are not subject to judicial review, including the
Administration’s denial of a request to reopen a determination
or decision.
20 C.F.R. § 404.903(l) (DIB cases); 20 C.F.R.
§ 416.1403(a)(5) (SSI cases).
Therefore, courts do not have subject matter jurisdiction
to hear a plaintiff’s claim that the Administration abused its
discretion in making such a decision, absent a colorable
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constitutional claim.
Califano, 430 U.S. at 108-09 (finding
further that the Administrative Procedure Act does not provide
an independent grant of subject matter jurisdiction over such
decisions).
III. ANALYSIS
The Commissioner argues that this court does not have
subject matter jurisdiction to hear Plaintiff’s claim.
(Am.
Mem. in Supp. of Def.’s Mot. to Dismiss (“Commissioner’s Mem.”)
(Doc. 11) at 1).
In his Complaint, Plaintiff alleges that “this
court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and/or
1383(c).”
(Compl. (Doc. 2) ¶ 3.)
After considering the
allegations made in the Complaint and after reviewing the
record, this court agrees with the Commissioner that this court
does not have subject matter jurisdiction to consider
Plaintiff’s claim.
As an initial matter, this court notes that it is somewhat
difficult to determine which action of the Administration
Plaintiff is challenging, due to the vague nature of Plaintiff’s
Complaint and the unique procedural posture of this case.
It
does not appear that Plaintiff is objecting to the ALJ’s
disability determination.
As a basis for jurisdiction,
Plaintiff cites 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c) in
his Complaint (id.), and in his request for review to the
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Appeals Council, Plaintiff asserts that the ALJ’s decision was
“not supported by substantial competent evidence of records” and
was based on an “error of law.”
(Tr. at 6.)
These facts would
indicate that Plaintiff is challenging the ALJ’s disability
determination.
However, the ALJ’s “initial determination” was
fully favorable to Plaintiff, suggesting that Plaintiff is not
challenging the determination.
(Id. at 7.)
Additionally, Plaintiff does not state specific objections
to the ALJ’s determination in his Complaint, and in his response
to the Commissioner’s Motion to Dismiss, Plaintiff implies that
he agrees with the ALJ’s determination.
(See Ans. to Def.’s
Mot. to Dismiss (“Pl.’s Resp.”) (Doc. 16) ¶¶ 5-6.)
Therefore,
it does not appear that Plaintiff is challenging the “initial
determination” of the ALJ and therefore is not asserting a claim
under 42 U.S.C. § 405(g) or 42 U.S.C. § 1383(c).
As a result,
these provisions of the Act do not provide subject matter
jurisdiction for this court to hear Plaintiff’s claim.
Instead, it appears that Plaintiff is challenging either
the Administration’s application of its 12-month limitation on
past DIB payments, the Administration’s refusal to award
retroactive SSI payments, or the ALJ’s refusal to reopen the
case to order that payments be made for the disputed period.
The Complaint does not make these arguments explicitly, but this
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court draws these arguments from Plaintiff’s February 4, 2011
letter4 in which he argued that the Notice of Award limiting
payments to 12-months did not comply with the ALJ’s decision and
requested that the ALJ issue an order to rectify the issue.
(Tr. at 190.)
This is further corroborated by Plaintiff’s
response to the Commissioner’s Motion to Dismiss, which alleges
entitlement to “disability payments” from May 2007 or from five
months after May 2007.
(Pl.’s Resp. (Doc. 16) ¶ 6.)
This court
assesses whether it has subject matter jurisdiction over each
argument.
First, this court does not have subject matter jurisdiction
over the ALJ’s refusal to order the Administration to make
payments for the entire closed period of disability.
Based on
the nature of the request, Plaintiff’s letter requesting an
order from the ALJ is not one for an “initial determination.”
“Initial determinations” are decisions concerning a plaintiff’s
entitlement to benefits and are subject to judicial review.
See
20 C.F.R. § 404.902 (providing a non-exclusive list of “initial
determinations” in DIB cases); 20 C.F.R. § 416.1402 (providing a
4
This court recognizes it is able to consider facts
presented in the transcript for purposes of determining the
Commissioner’s Motion to Dismiss for Lack of Subject Matter
Jurisdiction and that considering such facts outside of the
pleadings does not convert the proceeding to one for summary
judgment. White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459
(4th Cir. 2005).
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similar list for SSI cases).
Administration decisions that are
“not initial determinations” pertain to ancillary issues apart
from whether a plaintiff is disabled, such as the
Administration’s decision to deny a plaintiff’s “request to
reopen a determination or a decision.”
See 20 C.F.R. § 404.903
(providing a non-exclusive list of actions that are “not initial
determinations” in DIB cases); 20 C.F.R. § 416.1403 (providing a
similar list for SSI cases).
These non-“initial determinations”
are not subject to judicial review.
In this case, Plaintiff requested that the ALJ return to
the original decision he made about the duration of Plaintiff’s
disability and issue an additional order based on that decision.
(See Tr. at 190.)
The request does not address the issue of
whether Plaintiff is disabled, and as a result, denying that
request was not the ALJ making an “initial determination.”
Because the ALJ’s decision was not an “initial determination,”
it is not subject to judicial review, either under Title II, see
20 C.F.R. § 404.903(a), or Title XVI, see 20 C.F.R.
§ 416.1403(a).
Such a decision is subject to review by the
Administration itself, but this court cannot insert itself into
the decision the Administration makes during the review, unless
Plaintiff makes a colorable constitutional claim.
U.S. at 109.
Califano, 430
Because Plaintiff has not made a constitutional
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claim, this court does not have subject matter jurisdiction to
review the ALJ’s decision not to order payment as Plaintiff
requested.5
Second, this court finds it does not have subject matter
jurisdiction to hear Plaintiff’s challenge of the
Administration’s application of its 12-month limitation on past
Title II DIB payments.
Generally, “[w]here the controlling
statute indicates that particular agency action is committed to
agency discretion, a court may review the action if there is a
claim that the agency has violated constitutional, statutory,
regulatory or other restrictions.”
983, 988 (4th Cir. 1981).
Garcia v. Neagle, 660 F.2d
However, courts “may not review
agency action where the challenge is only to the decision
itself.”
Id.
Under the Act, the Commissioner has the authority to
“prescribe such rules and regulations as the Commissioner
determines necessary or appropriate to carry out the functions
of the Administration.”
42 U.S.C. § 902(a)(5).
5
Using this
Because this court does not have subject matter
jurisdiction over Plaintiff’s claim, it does not reach the
arguments presented by the Commissioner that (1) Plaintiff does
not have Article III standing as Commissioner has tendered all
that Plaintiff could recover if his claim was fully litigated;
(2) the ALJ does not have the authority to make such an order;
and (3) the ALJ’s determination of a closed period does not make
a binding agreement between the Commissioner and the Plaintiff.
(Commissioner’s Mem. (Doc. 11) at 4-7.)
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authority, the Administration promulgated regulations providing
that plaintiffs can receive benefits “for up to 12 months
immediately before the month in which [the plaintiff’s]
application is filed.”
20 C.F.R. § 404.621(a)(1); see also
Social Security Ruling 83-20, Titles II and XVI: Onset of
Disability, 1983 WL 31249 (“SSR 83-20).
These regulations
comport with provisions of the Act that create a 12-month window
for plaintiffs to recover benefits retroactively.
See 42 U.S.C.
§§ 416(i)(2)(E); 423(b).
Other courts have found that the 12-month limitation is
valid and have enforced this limitation against plaintiffs.
See, e.g., Bivines v. Bowen, 833 F.2d 293, 294 n.1 (11th Cir.
1987) (noting that “although a period of disability may be found
to have begun years before a claimant submits an application for
disability benefits, retroactive benefits are statutorily
restricted to twelve months prior to the date on which an
application was filed” (citing 20 C.F.R. § 404.621(a)));
McClenahan v. Comm’r of Soc. Sec., No. 6:12-CV-919-Orl-18GJK,
2013 WL 2151747, at *2-3 (M.D. Fla. May 16, 2013) (“[A] claimant
who files an application for disability benefits after the first
month he is entitled to such benefits may only receive benefits
for up to twelve (12) months before the application was
filed.”).
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Here, the Administration determined that, although the ALJ
found that Plaintiff’s disability began on May 11, 2007,
Plaintiff could only recover for the period 12 months before the
date his application was filed.
Plaintiff does not appear to be
arguing that this decision violates the Administration’s
regulations or the Act itself, nor does Plaintiff claim that
this decision violated his constitutional rights.
Additionally,
even if Plaintiff had made such a claim, those arguments would
not be colorable based on the law as stated above.
As a result,
this court does not have jurisdiction to review the
Administration’s decision to apply the 12-month limitation to
Plaintiff’s DIB award.
For the same reasons, this court does not have subject
matter jurisdiction to consider Plaintiff’s argument to the
extent he challenges the decision not to award retroactive SSI
payments under Title XVI.
The regulations implementing Title
XVI make it clear that the Administration cannot provide
retroactive SSI payments.
See 20 C.F.R. § 416.335.
This court
does not have authority to review this decision, as Plaintiff
has not made an argument that this regulation goes against some
statutory or constitutional mandate.
Therefore, without subject matter jurisdiction over any
argument made by Plaintiff or any apparent argument gleaned from
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this court’s review of the Administrative Transcript of Record,
this court does not have the authority to review Plaintiff’s
claims.
III. CONCLUSION
IT IS THEREFORE ORDERED that the Commissioner’s Motion to
Dismiss (Doc. 8) is GRANTED and that this action is dismissed
with prejudice.
A judgment consistent with this Memorandum
Opinion and Order will be entered contemporaneously herewith.
This the 11th day of February, 2015.
_______________________________________
United States District Judge
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