England v. Commissioner Social Security Administration
Filing
24
Opinion and Order: The Court GRANTS Defendants Motion 13 to Dismiss and DISMISSES Plaintiffs Complaint 1 . Accordingly, Plaintiffs Motion 17 to Compel; Stay Proceedings; or Remand Case for Further Proceedings Below is MOOT. Signed on 06/18/2014 by Judge Anna J. Brown. See attached 11 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CHRISTOPHER L. ENGLAND,
Plaintiff,
3:13-cv-01417-BR
OPINION AND ORDER
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,1
Defendant.
ALAN STUART GRAF
Alan Stuart Graf P.C.
208 Pine St.
Floyd, VA 24091
(540) 745-2519
Attorneys for Plaintiff
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
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 Defendant in this case. No
further action need be taken to continue this case by reason of
the last sentence of Section 205(g) of the Social Security Act,
42 U.S.C. § 405.
1 - OPINION AND ORDER
DAVID MORADO
Regional Chief Counsel
NANCY A. MISHALANIE
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-3858
Attorneys for Defendant
BROWN, Judge.
Plaintiff Christopher L. England seeks judicial review of a
final decision of the Commissioner of the Social Security
Administration (SSA) dismissing his application for Disability
Insurance Benefits (DIB) under Title II of the Social Security
Act.
On March 7, 2014, the Commissioner filed a Motion (#13) to
Dismiss for lack of jurisdiction.
On March 15, 2014, Plaintiff
filed a Motion (#17) to Compel; Stay Proceedings; or Remand Case
for Further Proceedings Below.
For the reasons that follow, the Court GRANTS the
Commissioner’s Motion and DISMISSES this matter.
Plaintiff’s
Motion, therefore, is MOOT.
PROCEDURAL BACKGROUND
On May 2, 2011, Plaintiff filed an application for DIB
(initial application), which the Administrative Law Judge (ALJ)
denied initially on August 23, 2011.
2 - OPINION AND ORDER
Decl. Robert Weigel,
¶ 4(a), Ex. 1.
Plaintiff did not appeal the initial
determination.
Id. at ¶ 4(a).
On February 3, 2013, Plaintiff filed another application for
DIB (second application), which was denied initially and on
reconsideration.
Id. at ¶ 4(b), Exs. 2(a), (b).
On March 12,
2013, the ALJ dismissed Plaintiff’s request for a hearing with
respect to the issue of Plaintiff’s alleged disability on the
basis of res judicata.
Id. at ¶ 4(b), Ex. 3.
The ALJ also
considered Plaintiff’s request to reopen his prior application,
but the ALJ concluded good cause did not exist for doing so.
Id.
Pursuant to 20 C.F.R. § 404.984(d), the ALJ’s decision became the
final decision of the Commissioner on June 12, 2013, when the
Appeals Council denied Plaintiff's request for review.
Id. at
¶ 4(b), Ex. 4.
On August 13, 2013, Plaintiff filed this action seeking
judicial review of the Commissioner’s “final agency decision”
denying Plaintiff’s request for review of the ALJ’s denial of
Plaintiff’s application for benefits.
Plaintiff alleges he has
exhausted his administrative remedies and that this Court has
subject-matter jurisdiction over this action pursuant to 42
U.S.C. § 405(g).
As noted, on March 7, 2014, the Commissioner filed her
Motion (#13) to Dismiss and on March 17, 2014, Plaintiff filed
his Motion (#17) to to Compel; Stay Proceedings; or Remand Case
3 - OPINION AND ORDER
for Further Proceedings Below.
On April 21, 2014, Plaintiff filed a Reply (#22) to the
Commissioner’s Motion to Dismiss and to Plaintiff’s Motion to
Compel; Stay Proceedings; or Remand Case for Further Proceedings
Below.2
THE COMMISSIONER’S MOTION (#13) TO DISMISS
I.
Standards
“Federal courts are courts of limited jurisdiction.”
Assoc.
of Am. Med. Coll. v. United States, 217 F.3d 770, 778 (9th Cir.
2000)(citation omitted).
Courts presume a case “lies outside
this limited jurisdiction, and the burden of establishing the
contrary rests upon the party asserting jurisdiction.”
Id.
A
motion to dismiss on jurisdictional grounds can be “either facial
or factual.”
White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).
“In a facial attack, the challenger asserts that the allegations
contained in a complaint are insufficient on their face to invoke
federal jurisdiction.”
(9th Cir. 2004).
Safe Air v. Meyer, 373 F.3d 1035, 1039
In a factual challenge “a court may look beyond
2
To the extent that Plaintiff’s Reply is responsive to the
arguments raised in the Commissioner’s Motion, the Court
construes Plaintiff’s Reply as a Surreply, which is not permitted
without leave of Court and which Plaintiff did not seek. The
Court, nevertheless, has considered Plaintiff’s Reply in its
entirety and, in any event, the Court concludes the Commissioner
has not been prejudiced by the Court’s consideration of
Plaintiff’s Reply in light of the fact that the Court dismisses
this matter.
4 - OPINION AND ORDER
the complaint to matters of public record without having to
convert the motion into one for summary judgment . . . .
It also
need not presume the truthfulness of the plaintiffs'
allegations.”
White, 227 F.3d at 1242.
Under either form of
attack, “jurisdictional dismissals are warranted where the
alleged claim under the constitution or federal statutes clearly
appears to be immaterial and made solely for the purpose of
obtaining federal jurisdiction or where such claim is wholly
insubstantial and frivolous.”
II.
Safe Air, 373 F.3d at 1039.
Discussion
The Commissioner asserts the Court lacks jurisdiction over
this matter because Plaintiff failed to exhaust his
administrative appeal remedies with respect to his claim for
benefits, and, accordingly, Plaintiff has not received a “final
decision” of the Commissioner as required to obtain judicial
review under 42 U.S.C. § 405(g).
A.
Plaintiff’s Constitutional Challenge
Although Plaintiff did not allege a constitutional challenge
in his Complaint, Plaintiff argues in response to the
Commissioner’s Motion that this Court has jurisdiction because
the Commissioner has engaged in a continuous “pattern of denying
Plaintiff his due process.”
Pl.’s Resp. at 1.
“A decision not to reopen a prior, final benefits decision
is discretionary and ordinarily does not constitute a final
5 - OPINION AND ORDER
decision; therefore, it is not subject to judicial review.”
Udd
v. Massanari, 245 F.3d 1096, 1098-99 (9th Cir. 2001)(citing
Califano v. Sanders, 430 U.S. 99, 107-09 (1977)).
Accordingly,
absent a colorable constitutional claim, a ruling denying a
request to reopen a determination or decision is not subject to
judicial review.
Sanders, 430 U.S. at 107-09.
The exception set out in Sanders applies “to any colorable
constitutional claim of due process violation that implicates a
due process right either to a meaningful opportunity to be heard
or to seek reconsideration of an adverse benefits determination.”
Evans v. Chater, 110 F.3d 1480, 1483 (9th Cir. 1997).
“The mere
allegation of a substantive due process violation[, however,] is
not sufficient to raise a ‘colorable’ constitutional claim to
provide subject matter jurisdiction.”
Hoye v. Sullivan, 985 F.2d
990, 992 (9th Cir. 1992).
Plaintiff appears to contend that he has a colorable
constitutional claim and, therefore, is entitled to review of the
ALJ’s denial of Plaintiff’s request to reopen the Commissioner’s
denial of his initial application; i.e., that he was denied due
process because the ALJ did not follow SSA regulations to
determine whether Plaintiff had good cause for not appealing the
denial of his initial application.
Plaintiff contends his
failure to appeal was due to the fact that (1) he suffered from
an alleged mental impairment of “lupus fog,” (2) his appeal
6 - OPINION AND ORDER
paperwork was stolen shortly before his appeal was due, and
(3) he was not represented by counsel at the time that his appeal
was due.
Pursuant to 20 C.F.R. § 404.988(a)-(c), the Commissioner may
reopen and revise an otherwise final and binding decision
“[w]ithin 12 months of the date of the notice of the initial
determination, for any reason[,] . . . [w]ithin four years of the
date of the notice of the initial determination if [the
Commissioner] find[s] good cause, as defined in § 404.989, to
reopen the case[,] or . . . [a]t any time” under certain
specified conditions.
“[Social Security Regulation (SSR)] 91-5p
provides that if a claimant presents evidence that mental
incapacity prevented him from requesting timely review of an
administrative action, and the claimant had no one legally
responsible for prosecuting the claim on his behalf at the time
of the prior adverse action, SSA ‘will determine whether or not
good cause exists for extending the time to request review.’”
Udd, 245 F.3d at 1099 (quoting SSR 91-5p).
The factors
considered for determining whether good cause exists are (1) an
inability to read or to write, (2) the lack of facility with the
English language, (3) limited education, and (4) any mental or
physical condition that limits the claimant's ability to do
things for himself.
SSR 91-5p.
Plaintiff argues the circumstances present here are similar
7 - OPINION AND ORDER
to those in Udd.
In that case the court found it had
jurisdiction to consider the merits of the plaintiff’s dueprocess claim because the plaintiff alleged he suffered from a
mental impairment and was not represented by counsel at the time
of the denial of benefits.
245 F.3d at 1100.
The court found
the plaintiff had “presented overwhelming evidence from his
medical records indicating that he lacked the mental capacity to
understand the procedures for review.”
Id. at 1100 (emphasis
added).
Here, unlike in Udd, Plaintiff did not provide any medical
evidence that his alleged impairment of “lupus fog” prevented him
from timely filing his appeal or from understanding or knowing
about the need to do so.
The Court notes the ALJ considered all
of Plaintiff’s assertions as to why Plaintiff has “good cause”
for reopening the prior determination.
The ALJ, neverthless,
concluded “the previous determination remains final and binding”
on the grounds that “there is no evidence suggesting the claimant
lacked the mental ability to timely appeal the prior
determinations” and “none of the conditions for reopening set
forth in 20 CFR 404.988 are present.”
Weigel Decl., Ex. 3.
The
Court agrees.
On this record the Court finds the ALJ properly concluded
good cause does not exist to reopen the prior determination, and,
accordingly, the Court concludes Plaintiff does not allege a
8 - OPINION AND ORDER
colorable constitutional claim.
B.
The ALJ’s Dismissal Based on Res Judicata
“The Social Security Act limits judicial review of the
Commissioner's decisions to ‘any final decision . . . made after
a hearing.’”
Udd, 245 F.3d at 1098 (citing 42 U.S.C. § 405(g)).
“If administrative res judicata has been applied in bar of
a subsequent claim which, properly assessed, is not the same for
res judicata purposes, jurisdiction to engage in judicial review
exists.
In that situation the subsequent claim is necessarily,
in legal contemplation, a different one whose merits have never
been addressed administratively.”
60, 65 (4th Cir. 1981).
McGowen v. Harris, 666 F.2d
Two claims are considered the same if
they present the same parties, the same facts, and the same
issues.
See Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995).
Here the ALJ found Plaintiff’s second application presented
the same facts and the same issues as his first application.
Weigel Decl., Ex. 3.
Plaintiff and the Commissioner were also
the only parties to both claims.
Thus, the ALJ found the
doctrine of res judicata applied, and, accordingly, the ALJ
dismissed Plaintiff’s request for a hearing.
3.
Weigel Decl., Ex.
The Court, therefore, concludes on this record that it does
not have jurisdiction to review the ALJ’s decision because the
ALJ properly dismissed Plaintiff’s application on res judicata
grounds.
See McGowen, 666 F.2d at 65.
9 - OPINION AND ORDER
Because this Court has concluded Plaintiff has not alleged a
colorable constitutional claim and that the ALJ properly
dismissed Plaintiff’s application on res judicata grounds,
Plaintiff has not established he is entitled to judicial review
of the Commissioner’s decision under 42 U.S.C. § 405(g).
Accordingly, the Court GRANTS the Commissioner’s Motion to
Dismiss for lack of jurisdiction.
PLAINTIFF’S MOTION (#17) TO COMPEL; STAY PROCEEDINGS;
OR REMAND CASE FOR FURTHER PROCEEDINGS BELOW
In his Motion to Compel; Stay Proceedings; or Remand case
for Further Proceedings Below, Plaintiff requests this Court to
“compel production of the entire [S]ocial [S]ecurity record, stay
briefing until such record is produced, or in the alternative,
direct the Commissioner to remand this case for further
proceedings.”
Pl.’s Mot. at 1.
In light of the Court’s dismissal of this matter for lack of
jurisdiction, however, Plaintiff’s Motion to Compel; Stay
Proceedings; or Remand Case for Further Proceedings Below is
MOOT.
CONCLUSION
For these reasons, the Court GRANTS Defendant’s Motion (#13)
10- OPINION AND ORDER
to Dismiss and DISMISSES Plaintiff’s Complaint (#1).
Accordingly, Plaintiff’s Motion (#17) to Compel; Stay
Proceedings; or Remand Case for Further Proceedings Below is
MOOT.
IT IS SO ORDERED.
DATED this 18th day of June, 2014.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
11- OPINION AND ORDER
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