SMITH v. BERRYHILL
Filing
17
MEMORANDUM OPINION, ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 09/27/2018, that Defendant's Motion to Dismiss Plaintiff's Complaint (Docket Entry 11 ) be granted, and that this action be dismissed for lack of subject matter jurisdiction. ORDERED that Plaintiff's Motion for Court Permission to File Electronically (Docket Entry 10 ) is DENIED. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MICHAEL DUANE SMITH,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.
1:18CV57
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Michael Duane Smith, brought this action pro se
pursuant to the Social Security Act (the “Act”) to obtain judicial
review of
the
denial
of
his
claims
for
Disability
Insurance
Benefits (“DIB”) and Child Disability Insurance Benefits (“CIB”)
under Title II of the Act.
(Docket Entry 1.)
Defendant has filed
a Motion to Dismiss Plaintiff’s Complaint and a Brief in support
(Docket Entries 11, 12) on the grounds that Plaintiff “has not
exhausted his administrative remedies and, therefore, this Court
lacks jurisdiction of Plaintiff’s claims” (Docket Entry 12 at 1).
Plaintiff filed a Response to Defense Motion to Dismiss (Docket
Entry 14), and Defendant submitted a Reply (Docket Entry 16).
For
the reasons that follow, the Court should grant Defendant’s Motion
to Dismiss Plaintiff’s Complaint.
I.
PROCEDURAL HISTORY
Plaintiff applied for DIB, CIB, and Supplemental Security
Income (“SSI”) under Title XVI of the Act on November 29, 2005,
alleging disability since December 1, 1974. (See Docket Entry 12-1
(Decl. of Nancy Chung) at 10.)
The Social Security Administration
(“SSA”), through its state agency, denied those applications at the
initial level of review on April 14, 2006, and Plaintiff requested
a hearing de novo before an Administrative Law Judge (“ALJ”) on May
31, 2006.
(See id.)1
The ALJ held a hearing on September 4, 2008,
which Plaintiff, his attorney, and a vocational expert attended.
(See id.)
During the hearing, Plaintiff’s attorney stipulated to
the dismissal of Plaintiff’s DIB claim and requested to withdraw
the request for hearing on Plaintiff’s CIB claim “predicated on a
fully favorable decision on [Plaintiff’s] Title XVI application for
[SSI].”
decision
(Id. at 10, 23.)
1)
granting
On October 29, 2008, the ALJ issued a
Plaintiff’s
SSI
application;
2)
finding
Plaintiff disabled from November 29, 2005, the date of his SSI
application,
through
the
date
of
dismissing Plaintiff’s DIB claim.
the ALJ’s
decision;
(Id. at 5-17.)
and
3)
In a separate
order dated the same day, the ALJ dismissed Plaintiff’s CIB claim.
(Id. at 21-24).
Both the ALJ’s decision and dismissal order
1
Plaintiff filed his claims in Michigan (see Docket Entry 12-1 at 5-24), one of
10 states participating in the SSA’s Disability Redesign Prototype model, an
element of which involves elimination of the reconsideration step in the
administrative review process. See Program Operations Manual System (“POMS”)
§ DI 12015.100.
2
advised Plaintiff that he had 60 days from the date he received the
documents to file a request for review with the Appeals Council,
and that the Appeals Council would assume Plaintiff received the
documents
five days
after
the
date
of
the
documents
“unless
[Plaintiff] show[ed] [he] did not get [the documents] within the
[five]-day period.”
(Id. at 6, 21.)
No dispute exists between the
parties as to the failure of Plaintiff to file a request for review
of
the
ALJ’s
decision
and/or
dismissal
order
at
any
time.
(See Docket Entries, 1, 12, 14, 16.)
On March 1, 2017, Plaintiff filed two new claims for CIB, one
based on his father’s earnings record, and the other based on his
mother’s earnings record (see Docket Entry 16-2 (Decl. of Janay
Podraza) at 3), which the SSA denied on May 12, 2017, and July 10,
2017 (see id. at 22, 24).
Each denial notice advised Plaintiff
that he had the right to appeal within 60 days of the date he
received the notice.
(Id. at 23, 24.)
Defendant maintains that
Plaintiff did not appeal the denial of his 2017 CIB claims.
(See Docket Entry 12 at 3; Docket Entry 16 at 3.)
Plaintiff filed the instant civil action seeking judicial
review of the denial of his DIB and CIB claims on January 25, 2018.
(Docket Entry 1 at 1.)2
2
Plaintiff’s Complaint and Response to Defense Motion to Dismiss do not clarify
whether he seeks judicial review of the denial of only his 2005 DIB and CIB
claims, or of both his 2005 DIB and CIB claims and his 2017 CIB claims. (See
Docket Entries 1, 14.) This Recommendation will assume the latter, and address
whether the Court possesses subject matter jurisdiction over Plaintiff’s 2005 and
(continued...)
3
II.
STANDARD OF REVIEW
Although Defendant does not cite to an applicable Federal Rule
of Civil Procedure under which she pursues dismissal (see Docket
Entries 11, 12), a motion to dismiss a complaint for lack of
subject matter jurisdiction premised upon a failure to exhaust
administrative remedies typically falls under Federal Rule of Civil
Procedure 12(b)(1), see 5B Charles Alan Wright & Arthur R. Miller,
Federal Practice
and
12(b)(1)
to
motion
Procedure,
dismiss
for
§
1350
a
(3d ed.
lack
of
2016)
(“Rule
subject
matter
jurisdiction . . . may be appropriate when the plaintiff has failed
to exhaust administrative procedures that have been established,
typically by statute, as a prerequisite to his bringing suit.”).
When a defendant moves to dismiss a complaint under Rule 12(b)(1)
on grounds of lack of subject matter jurisdiction, the burden of
proving subject matter jurisdiction ultimately rests with the
plaintiff. See Richmond, Fredericksburg & Potomac R. Co. v. United
States, 945 F.2d 765, 768 (4th Cir. 1991).
However, a district
court should grant a Rule 12(b)(1) motion to dismiss only where no
dispute exists regarding the material jurisdictional facts, and the
moving party demonstrates entitlement to prevail as a matter of
law.
1999).
See Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.
“In determining whether jurisdiction exists, the district
2
(...continued)
2017 claims.
4
court is to regard the pleadings’ allegations as mere evidence on
the issue, and may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment.”
Richmond,
Fredericksburg & Potomac R. Co., 945 F.2d at 768 (citing Adams v.
Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)).
III.
Defendant
contends
DISCUSSION
that
the
Court
lacks
subject
matter
jurisdiction over Plaintiff’s claims, “[b]ecause Plaintiff did not
file a request for review of the ALJ’s 2005 (favorable) decision or
dismissal with the Appeals Council and . . . did not file an appeal
of his initial denials dated May 12, 2017 and July 10, 2017.”
(Docket Entry 12 at 5.)
“obtained
a
Thus, Defendant argues, Plaintiff has not
judicially
reviewable
‘final
decision
after
a
hearing,’” and has failed to exhaust his administrative remedies
pursuant
to
42
U.S.C.
§
405(g)
(id.
(quoting
20
C.F.R.
§§ 404.900(a)(5), 416.1400(a)(5))).
Plaintiff’s Complaint admits that the ALJ granted Plaintiff’s
SSI claim and dismissed his CIB claim at the hearing on September
4, 2008 (see Docket Entry 1 at 6), but appears to contend that the
ALJ’s
dismissal
Plaintiff
was
lacked
mentally
legitimacy
incompetent”
because,
(id.)
“at
and
that
“was
time[,]
a
person
activ[e]ly being treated for an emotional mood disorder” and “on
several types of medications” (id. at 8).
Commissioner’s
argument
that
Plaintiff
5
In response to the
failed
to
exhaust
administrative remedies, Plaintiff maintained that he could not
have exhausted his administrative remedies for two reasons. First,
he argues that each of his claims for SSI, DIB, and CIB “were
separate and individual,” and that the SSA neither granted him a
hearing nor issued a “written decision of the finding of facts
[and] reason for dismissal” regarding his DIB and CIB claims.
(Docket Entry 14 at 2; see also id. (Aff. of Pl.) at 7 (“On
Oct[ober] 29, 2008 [sic], a hearing was held only on one claim SSI
resulting in a fully favorable decision.
NO hearing was held on
any other claim.”).) Second, Plaintiff alleges that the SSA “never
mailed” the ALJ’s decision to Plaintiff, and “Plaintiff never
received his written [d]ecision” until he refiled his CIB claim in
2017 (id. at 8) and, thus, that he “was not provided the appeal
information [or] written finding[s] of fact, in which to appeal
within 60 days as required by law” (id. at 2 (internal quotation
marks omitted)).
Section
405(g)
states,
in
relevant
part,
that
“[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 civil action commenced . . . in
the district court of the United States for the judicial district
in which the plaintiff resides.”
42 U.S.C. § 405(g) (emphasis
added); see also Matthews v. Eldridge, 424 U.S. 319, 327 (1976)
(“The only avenue for judicial review is 42 U.S.C. § 405(g), which
6
requires exhaustion of the administrative remedies provided under
the [] Act as a jurisdictional prerequisite.” (emphasis added)).
The Act does not define “final decision” and, thus, “its meaning is
left to the [Commissioner] to flesh out by regulation,” Weinberger
v. Salfi, 422 U.S. 749, 766 (1975).
In turn, the regulations provide that, in order to obtain a
judicially reviewable “final decision,” a claimant must generally
complete
a
four-step
administrative
review
process
within
a
specified time: 1) initial determination; 2) reconsideration; (3)
hearing before an ALJ; and 4) Appeals Council review.
C.F.R. §§ 404.900(a)(1)–(4), 416.1400(a)(1)-(4).
See 20
“If [a claimant
is] dissatisfied with [the SSA’s] decision in the review process,
but do[es] not take the next step within the stated time period,
[he or she] will lose [his or her] right to further administrative
review and [his or her] right to judicial review, unless [he or
she] can show [the SSA] that there was good cause for [his or her]
failure
to
make
a
timely
§§ 404.900(b), 416.1400(b).
request
for
review.”
20
C.F.R.
Regarding the final step in the
administrative review process, the Appeals Council can grant a
claimant’s request for review and issue its own final decision, or
deny the request for review, allowing the ALJ’s decision to stand
as the Commissioner’s final decision.
416.1481.
See 20 C.F.R. §§ 404.981,
In either case, the claimant can then seek judicial
review of the Commissioner’s final decision by filing an action in
7
the appropriate federal district court within sixty days after
receiving notice of the Appeals Council’s decision.
See id.
A. Mental Incompetence
Plaintiff contends that the ALJ’s dismissal of his DIB and CIB
claims lacked legitimacy because, “at that time[,] Plaintiff was
mentally incompetent” (Docket Entry 1 at 6), and “was a person
activ[e]ly being treated for an emotional mood disorder” and “on
several types of medications” (id. at 8).
because
Plaintiff
has
presented
no
This argument fails,
evidence,
beyond
his
own
unsupported allegation, that he suffered from mental incompetency
at the time of the ALJ’s hearing or that his mental health issues
resulted in any prejudice.
Although the ALJ’s decision reflects
that Plaintiff suffered from “a major depressive disorder with
psychotic features [and] a borderline personality” (Docket Entry
12-1
at
13),
that
decision
also
demonstrates
that
Plaintiff
remained represented by counsel during the hearing before the ALJ
(id. at 10, 23), and that Plaintiff’s counsel raised no objection
to disposition of Plaintiff’s claims on the grounds of Plaintiff’s
mental
incompetence
medications) (id.).
(or
even
any
type
of
impairment
from
In addition, the record reflects that the ALJ
expressly found that 1) Plaintiff “[wa]s fully advised of the
effects of [the ALJ’s dismissal of Plaintiff’s CIB claim], . . .
with the result that the initial determination would remain in
effect” (id. at 23); and 2) Plaintiff “underst[ood] the effects of
8
his withdrawal of the request for hearing” (id.).
Under such
circumstances, Plaintiff’s request that the Court vacate the ALJ’s
dismissal of Plaintiff’s DIB and CIB claims on grounds of mental
incompetence falls far short. See Shrader v. Harris, 631 F.2d 297,
302
(4th
possessed
Cir.
1980)
subject
(concluding
matter
that
jurisdiction
federal
district
court
over
claimant’s
case
notwithstanding lack of final decision under Section 405(g), where
claimant presented his disability claims pro se and supplied “prima
facie proof” of mental incompetency as of the filing of his initial
claim for benefits).
B. Failure to Provide Hearing and/or Decision on CIB and DIB Claims
Next, Plaintiff argues that each of his claims for SSI, DIB,
and CIB “were separate and individual,” and that he could not have
exhausted his administrative remedies, because the SSA neither
granted him a hearing nor issued a “written decision of the finding
of facts [and] reason for dismissal” regarding his DIB and CIB
claims.
(Docket Entry 14 at 2; see also id. (Aff. of Pl.) at 7
(“On Oct[ober] 29, 2008 [sic], a hearing was held only on one claim
SSI resulting in a fully favorable decision.
on any other claim.”).)
NO hearing was held
However, the ALJ’s decision and dismissal
order belie Plaintiff’s argument. Those documents reflect that the
ALJ expressly acknowledged that Plaintiff filed a request for
hearing on his SSI, DIB, and CIB claims, but that Plaintiff’s
counsel stipulated to the dismissal of Plaintiff’s DIB and CIB
9
claims “predicated on a fully favorable decision on [Plaintiff’s]
Title XVI application for [SSI].”
(Docket Entry 12-1 at 10, 23.)
Thus, contrary to Plaintiff’s argument (see Docket Entry 14 at 2;
see also id. at 7), the ALJ provided both a hearing and a written
decision stating the reason for dismissal of Plaintiff’s DIB and
CIB claims.
C. Delayed Receipt of ALJ’s Decision
Lastly, Plaintiff alleges that exhaustion of administrative
remedies for his DIB and CIB claims remained impossible, because
the SSA
“never
mailed”
the
ALJ’s
decision
to
Plaintiff,
and
“Plaintiff never received his written [d]ecision” until he refiled
his CIB claim in 2017 (Docket Entry 14 at 8) and, thus, that he
“was not provided the appeal information [or] written finding[s] of
fact, in which to appeal within 60 days as required by law” (id. at
2 (internal quotation marks omitted)).
That contention fails.
Both the ALJ’s decision and dismissal order reflect that the
ALJ mailed copies of those documents to the addresses of record for
Plaintiff and Plaintiff’s attorney.
Docket Entry 16-2 at 17, 18.)
(See Docket Entry 1 at 9, 13;
As discussed above, those documents
advised that Plaintiff had 60 days from the date he received the
documents to file a request for review with the Appeals Council,
and that the Appeals Council would assume Plaintiff received the
documents
five days
after
the
date
of
the
documents
“unless
[Plaintiff] show[ed] [he] did not get [the documents] within the
10
[five]-day period” (Docket Entry 12-1 at 6, 21).
See 20 C.F.R.
§§ 404.968, 416.1468 (permitting claimants to file a request for
review of an ALJ’s decision with the Appeal Council “[w]ithin 60
days after the date you receive notice of the hearing decision or
dismissal”); 20 C.F.R. §§ 404.901, 416.1401 (defining “[d]ate you
receive notice” as “5 days after the date on the notice, unless you
show us that you did not receive it within the 5-day period”).
Here, Plaintiff has not presented any evidence that the
addresses
to
which
the
ALJ
mailed
those
documents
did
not
constitute the correct addresses for either Plaintiff or his
attorney.
(See Docket Entries 1, 14.)
Nor has the SSA indicated
that the United States Postal Service returned the documents as
undeliverable.
(See Docket Entries 16-1, 16-2.)
Additionally,
Plaintiff attended the ALJ’s hearing with his counsel (see Docket
Entry 12-1 at 10) and thus certainly possessed awareness at that
time that the ALJ would dismiss his DIB and CIB claims.
Even
assuming, arguendo, that Plaintiff received neither his own copies
of the ALJ’s decision and dismissal order, nor copies from his
attorney, Plaintiff has not indicated that he made any inquiries of
his attorney or the SSA regarding the status of the ALJ’s decision
and has not explained why he failed to make any such efforts in the
more than eight years that elapsed between the ALJ’s decision on
October 29, 2008, and March 1, 2017, when Plaintiff filed his new
11
claims for CIB and allegedly first learned of the ALJ’s dismissal
of his 2005 claims for DIB and CIB.
Under such circumstances, Plaintiff has neither overcome the
regulatory presumption that he received the ALJ’s decision and
dismissal order five days after the date of the documents, nor
provided the Court with any other reason to excuse his failure to
exhaust
administrative
remedies.
See
Matlock
v.
Bowen,
No.
C-85-6072-MHP, 1988 WL 252440, at *4 (N.D. Cal. Dec. 19, 1988)
(unpublished) (“The claimant stated in his declaration that he did
not receive notice of the ALJ’s decision of August 10, 1983 finding
him not disabled until August 9, 1984, because he was incarcerated.
Thus, he contends that he received no notice of his administrative
appeal rights until almost a year after the ALJ’s decision was
issued.
The record shows, however, that the claimant’s attorney
was mailed a notice of the ALJ’s decision and was notified of his
client’s right to ask the Appeals Council for review within 60
days.
There is no evidence that [the claimant’s] attorney did not
receive the notice or was incapable of representing his client for
purposes of an appeal.
Even assuming arguendo that [the claimant]
was incarcerated for the entire period and did not receive the
notice mailed to his residence, the court finds that the notice
sent
to
the
claimant’s
attorney
satisfied
due
process
requirements.”); see also Kinash v. Callahan, 129 F.3d 736, 738
(5th
Cir.
1997)
(explaining,
in
12
analogous
context,
that
the
plaintiff’s “sworn word that he did not receive th[e] notice is not
sufficient, by itself, to rebut the statutory presumption that the
notice was received five days after it was sent”); Woods v. Colvin,
No. 1:15CV763, 2016 WL 1328951, at *3 (M.D.N.C. Apr. 5, 2016)
(unpublished) (observing, in analogous context, that “[c]ourts have
routinely held that a claimant’s affidavit asserting in conclusory
fashion that she did not receive the Commissioner’s notice within
the
five-day
presumptive
period,
without
more,
does
not
[suffice]”), recommendation adopted, slip op. (M.D.N.C. Aug. 9,
2016) (Tilley, S.J.).
In sum, because Plaintiff did not file a request for review of
the ALJ’s decision and/or dismissal order with the Appeals Council,
he failed to obtain a “final decision” of the Commissioner under
Section 405(g), and the Court lacks subject matter jurisdiction
over his 2005 DIB and CIB claims.
See Lee v. Commissioner, Soc.
Sec. Admin., No. CV JKB-17-912, 2017 WL 2981853, at *2 (D. Md. July
13, 2017) (unpublished) (“[T]he law as determined by Congress and
the Commissioner requires Appeals Council review before a ‘final
decision’ can be obtained.
Since [the claimant] sought no such
review, he did not exhaust his administrative remedies and this
[c]ourt lacks
jurisdiction
over
his
appeal.”),
recommendation
adopted, slip op. (D. Md. Aug. 1, 2017).
To the extent Plaintiff seeks judicial review of the SSA’s
denial of his 2017 CIB claims, the Court should find that it also
13
lacks subject matter jurisdiction with respect to those claims.
The SSA denied Plaintiff’s 2017 CIB claims on May 12, 2017, and
July 10, 2017 (see Docket Entry 16-2 at 22, 24), and each denial
notice advised Plaintiff that he had the right to appeal within 60
days of the date he received the notice (id. at 23, 24).
Defendant
maintains that Plaintiff did not appeal the denial of his 2017 CIB
claims.
(See Docket Entry 12 at 3, Docket Entry 16 at 3.)
Although Plaintiff attached a Request for Reconsideration form to
his Complaint, which bears his signature, his Michigan address, and
the date of May 22, 2017, the document contains no date stamp or
other reliable indicia that the SSA actually received the document.
(See Docket Entry 1 at 22.)3
Moreover, such document could not
serve to appeal Plaintiff’s second CIB claim, as the SSA denied
that claim on July 10, 2017 (see Docket Entry 16-2 at 22, 24).
As Plaintiff failed to appeal the denial of his 2017 CIB
claims, he has not obtained a “final decision” of those claims
under
Section
405(g),
and
the
Court
lacks
subject
matter
jurisdiction over those claims. See 20 C.F.R. §§ 404.900(b),
416.1400(b) (“If [a claimant is] dissatisfied with [the SSA’s]
decision in the review process, but do[es] not take the next step
within the stated time period, [he or she] will lose [his or her]
3
The handwritten entries of “6-22-17” in the box purportedly reflecting the date
the SSA received Plaintiff’s request for reconsideration appear in the same black
ink and handwriting as the remainder of the form (see Docket Entry 1 at 22) and,
thus, the Court should not find that sufficient evidence that the SSA actually
received that document from Plaintiff.
14
right to further administrative review and [his or her] right to
judicial review, unless [he or she] can show [the SSA] that there
was good cause for [his or her] failure to make a timely request
for review.”).4
IV.
CONCLUSION
The Court lacks subject matter jurisdiction over Plaintiff’s
2005 claims for DIB and CIB and his 2017 claims for CIB.
IT IS THEREFORE RECOMMENDED that Defendant’s Motion to Dismiss
Plaintiff’s Complaint (Docket Entry 11) be granted, and that this
action be dismissed for lack of subject matter jurisdiction.
4
Plaintiff has also filed a Motion for Court Permission to File Electronically,
seeking permission from the Court to file his pleadings in this case
electronically because he “is a pro se litigant whos[e] filing fees and other
cost[s] were waived by this Court.” (Docket Entry 10 at 1.) Under Local Rule
5.3(c)(2), a pro se litigant may seek the approval of the judge assigned to his
or
her
case
to
register
as
a
filing
user
of
the
Court’s
Case
Management/Electronic Case Files (“CM/ECF”) system. See LR5.3(c)(2). In order
to receive a user name and password, a pro se litigant must either have already
qualified as an electronic filer in another federal court or attend a CM/ECF
training class offered at the Court. See CM/ECF User’s Manual, Middle District
of North Carolina, at 3; see also www.ncmd.uscourts.gov/cmecf-training (last
visited Sept. 27, 2018) (“[C]ourt-approved pro se filers, who have not attended
training in another federal district or bankruptcy court, are required to attend
training before being issued a login ID and password.”).
In light of the
undersigned’s recommendation of dismissal of this action, the brief, 14-day
period in which Plaintiff must file any objections to this Recommendation, see
Fed. R. Civ. P. 72(b)(2) (providing that parties must file objections “[w]ithin
14 days after being served with a copy” of a magistrate judge’s recommendation),
and the requirement that Plaintiff attend a Court-led CM/ECF training class
before he can file electronically, the undersigned will deny Plaintiff’s Motion
for Court Permission to File Electronically.
15
IT IS ORDERED that Plaintiff’s Motion for Court Permission to
File Electronically (Docket Entry 10) is DENIED.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 27, 2018
16
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