Fraker v. Commissioner, Social Security Administration
Filing
19
OPINION AND ORDER: Granting Defendant's Motion to Dismiss 13 . Signed on 10/1/2013 by Chief Judge Ann L. Aiken. (lg) Modified on 10/3/2013 to add language (lg).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
LELA M. FRAKER,
Civ. No.
Plaintiff,
6:12-CV-02349-AA
OPINION AND ORDER
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
AIKEN, Chief Judge:
Plaintiff
judicial
request
Security
brought
review
to
of
waive
Income
a
suit
decision
recovery
(SSI)
1 - OPINION AND ORDER
under
of
benefits.
42
by
U.S.C.
§
405(g)
Commissioner
overpayment
of
Defendant
moves
seeking
denying
her
Supplemental
to
dismiss
plaintiff's complaint
for
lack of subject matter
jurisdiction.
Defendant's motion is granted.
BACKGROUND
Plaintiff
continuing
was
awarded
disability
SSI
review
Security Administration
benefits
in
2002,
(the Agency)
in
2000.
however,
After
the
determined that
a
Social
plaintiff
was no longer disabled and ceased her SSI benefits due to her
non-cooperation
Plaintiff
and
appealed
failure
the
elected
to
continue
process.
As
a
plaintiff
received
during
receiving
that
the
provide
cessation
condition
agreed
to
to
she
of
her
would
of
repay
the
information.
benefits,
benefits
receiving
duration
necessary
during
the
the
continued
the
amount
appeals
and
she
appeals
benefits,
of
benefits
process
if
the
outcome of her appeal was unfavorable.
Plaintiff proceeded with her appeal by requesting a hearing
before an Administrative Law Judge
(ALJ),
her request on account of abandonment.
but the ALJ dismissed
Plaintiff requested,
and
the Appeals Council denied, review of the ALJ's decision.
As
a
consequence
of
the
unsuccessful
appeal,
the
Agency
required repayment of the SSI benefits plaintiff received during
her
appeal.
Plaintiff
requested
waiver
of
recovery
of
the
overpayment, was denied, and again requested a hearing before an
ALJ.
2 - OPINION AND ORDER
After
a
hearing,
the
ALJ
denied
plaintiff's
request
for
waiver because plaintiff was not without fault in receiving the
overpayment.
To
support
this
finding,
the
ALJ
noted
that
plaintiff stated that "she never read entire letters, or she was
not motivated to do anything." Weigel Decl., Ex. 3 at 7. The ALJ
noted that
the plaintiff "demonstrates
otherwise,
when
she
capable
of
despite any impairment mental
acting in her own interests,
or
chooses
to
do
that
she
so"
and
is
that
"she
is
knowledgeable about the benefits system." Id. at 6, 9.
Plaintiff requested review again, which the Appeals Council
granted.
The
Appeals
Council
reviewed
the
ALJ' s
decision
and
remanded the case back to the ALJ with instructions to consider
additional
found
overpayments plaintiff received.
that
plaintiff
additional
was
overpayments
not
without
for
On remand,
fault
substantially
in
the
the ALJ
receiving
same
the
reasons
explained in the first decision.
On February 25,
2011,
the ALJ declined plaintiff's request
for wavier of overpayment of SSI benefits.
Plaintiff had sixty
days to seek review of this decision with the Appeals Council.
20 C.F.R.
§
nor
attorney
her
1468(a)
Plaintiff does
decision,
but
not
in
Plaintiff claims, however, that neither she
received
a
copy
of
the
ALJ's
decision.
remember how she eventually learned of
late
unfavorable decision.
3 - OPINION AND ORDER
July
she
notified
her
attorney
of
the
the
On
request
August
for
2011,
1,
plaintiff's
attorney
review with the Appeals Council,
then
filed
a
more than ninety
days past the sixty-day deadline.
Upon receiving the request for review,
the Appeals Council
concluded that there was no good cause to extend the time for
filing.
Accordingly,
on November
8,
2012,
the Appeals
Council
issued an order dismissing plaintiff's request for review.
On December 27,
judicial
review
of
2012,
the
plaintiff filed this action seeking
denial
of
her
waiver
request
and
the
denial of an extension of time to seek review.
DISCUSSION
Defendant moves to dismiss plaintiff's claim on the ground
that this Court lacks jurisdiction under the Social Security Act
(the
Act),
42
Commissioner
u.s.c.
absent
a
§
405(g),
final
to
decision
review
made
actions
after
a
of
the
hearing.
Def.'s Mem. to Dismiss at 2.
In response to the defendant's motion to dismiss, plaintiff
does not contend that there has been a
hearing;
rather,
plaintiff
alleges
final decision after a
that
the
Commissioner
violated her due process rights by failing to send her or her
attorney a copy of the ALJ's unfavorable decision or to consider
whether
her
mental
or
physical
taking action on her own behalf.
at
5-6.
Plaintiff
submits
4 - OPINION AND ORDER
that
capacity
prevented
Pl.'s Resp.
this
Court
her
from
to Mot. to Dismiss
has
jurisdiction
because
these
process
due
violations
constitutional claim. See Califano v.
(1977)
final
(holding
decision
that
a
made
court
after
a
has
raise
Sanders,
430 U.S.
jurisdiction
hearing
if
a
colorable
a
99,
109
even without
plaintiff
raises
a
a
colorable constitutional claim).
Judicial
review
of
claims
authorized and limited by 42 U.S.C.
Soc.
has
Se.c.,
264 F. 3d 899,
stated that
particular
type
Secretary
made
(emphasis
added)
decisions,
902
405 (g)
§
of
a
(9th Cir.
action,
(quoting
42
'final
§
decision
430
405(g)).
U.S.
of
the
at
108
Discretionary
do not constitute final decisions after a
hearing subject to judicial review under
U.S.
is
such as a decision by the Appeals Council dismissing
a request for review,
430
Act
judicial review to a
Sanders,
U.S.C.
the
2001). The Supreme Court
a
hearing.'"
under
405(g). Subia v. Comm'r of
§
"clearly limits
agency
after
arising
at
107-09;
see also Evans v.
§
405(g).
Chater,
See Sanders,
110
F.3d 1480,
1482 (9th Cir. 1997).
The
exception
Sanders
where
constitutional
Court
the
recognized
Commissioner's
grounds.
430
u.s.
that
there
decision
at
109.
is,
is
however,
an
challenged
on
"[T]he
Sanders
exception applies to any colorable constitutional claim of due
process violation that implicates a due process right
Evans,
110 F.3d at 1483
omitted) .
(citation and internal quotation marks
A colorable constitutional claim is
5 - OPINION AND ORDER
II
one that
is
not
"made solely for the purpose of obtaining jurisdiction or .
is wholly insubstantial,
Sec'y
of
19 8 5 )
( quoting Be 11 v .
mere
Health
allegation
sufficient
to
immaterial, or frivolous." Boettcher v.
Human
&
of
Servs.,
Hood,
a
due
raise
759
F.2d
719,
3 2 7 U. S .
67 8 ,
68 2 - 8 3
process
violation,
(9th
however,
"is
claim
provide subject matter jurisdiction." Hoye v. Sullivan,
990,
992
allege
(9th Cir.
"facts
process."
Id.
1992)
(per curiam).
sufficient
Here,
to
state
plaintiff's
a
Rather,
The
not
to
985 F.2d
a plaintiff must
violation
allegations
Cir.
( 19 4 6 ) ) .
constitutional
'colorable'
a
722
due
of
do
not
raise
a
colorable constitutional claim which would allow this Court to
review the Appeals Council's or the ALJ's decision.
Upon
receiving
claimant
may
C.F.R.
416.1468(a).
to
§
have
request
an
unfavorable
review
by
decision
filing
a
from
written
the
ALJ,
request.
a
20
"Any documents or other evidence you wish
considered by the Appeals
Council
should be
submitted
with your request for review." Id. The request for review is due
within sixty days after the date the claimant receives notice of
the
hearing
receipt
of
decision
or
such notice
dismissal.
is
Id.
presumed to be
Further,
five
the
days
date
after
of
the
date of such notice, unless a reasonable showing to the contrary
is made. Id.
§
416.1401.
In addition, a claimant may ask for an extension of time to
file a request for review.
6 - OPINION AND ORDER
Id.
§
416.1468(b). The request for an
extension
of
time
must
be
filed
with
the
Appeals
Council
in
writing, and it must give the reasons why the request for review
was not filed within the stated time period. Id. If the claimant
shows good cause for missing the deadline,
the time period will
be extended. Id.
On February 25, 2011, the Agency sent the ALJ's unfavorable
decision to the plaintiff and her counsel.
at 1-2. The decision was,
id.
Ex.
7
thus, presumed to be received by both
parties no later than March 2,
416.1401.
Weigel Decl. ,
five days later.
See 20 C.F.R.
§
the request for review was due May 2. 1 See
Therefore,
416.1468(a)
§
Plaintiff's attorney,
review
until
deadline.
August
Weigel
1,
Decl. ,
however,
more
than
Ex.
9.
did not file a
ninety
days
In the request
past
for
request
the
for
May
review,
2
the
sole reason given for filing late was that plaintiff's attorney
had
just
learned
decision,
and
that
decision.
Id.
Ex.
that
he
8.
the
did
ALJ
not
The request
had
issued
receive
for
a
copy
an
of
unfavorable
the
review did not,
mailed
however,
state that plaintiff did not receive the ALJ's decision or that
some
impairment
interfered with plaintiff's ability to
respond
to the decision. Id.
1
Sixty days from March 2 is actually May 1, which was a Sunday,
and the next business day was May 2.
7 - OPINION AND ORDER
As
no
a
result,
good cause to
the Appeals Council
extend the
filing because
the ALJ' s
decision]
to the representative at the same address of record."
Office
sent
a
copy
of
[the
9.
Similar
to
complaint makes
the ALJ' s
fact,
Hearings
was
notes
ability
the
for
there
"decision
Id. Ex.
that
time
concluded that
plaintiff's
no mention
request
that
decision or that her
to
respond
to
the
for
she
review,
did not
impairments
ALJ' s
plaintiff's
receive
notice
interfered with
decision.
Compl.
at
1-2.
of
her
In
plaintiff's complaint is entirely devoid of a due process
violation allegation.
Id.
violation
responded
until
she
dismiss.
Pl.'s
Resp.
plaintiff
were
allowed
Plaintiff did not allege a due process
to
to
to
to
Mot.
amend
alleged due process violation,
because
the
due
process
the
defendant's
Dismiss
her
at
complaint
it would not
allegations
were
motion
to
Even
if
4-7.
to
include
change the
not
the
outcome
presented
to
the
Appeals Council.
The essence of due process
at
a
meaningful
Eldridger
424
time
U.S.
and
319,
in
333
is the opportunity to be heard
a
meaningful
(1976)
The
manner.
Mathews
procedures
v.
provided
under the Act afforded plaintiff exactly that.
When the Appeals Council made the determination that there
was no good cause to extend the time for filing,
all
of
the
evidence
8 - OPINION AND ORDER
presented to
it;
namely,
it considered
that
plaintiff's
attorney
did
Appeals
not
Council
plaintiff
or
receive
and
the
her
a
copy
Agency's
attorney
evidence or affidavits.
of
the
ALJ's
regulations
from
decision.
did
presenting
not
any
The
prevent
additional
Plaintiff and her attorney were free to
present evidence to the Appeals Council to show that neither of
them received notice of the ALJ's decision and that plaintiff's
impairments
notice;
interfered
yet,
they
arguments
in
obtaining
jurisdiction,
759
at
F.2d
the
did
with
not
eleventh
722.
her
do
ability
so.
hour
which
Therefore,
respond
Plaintiff
solely
plaintiff
the
to
for
plaintiff
produced
the
cannot
to
these
purpose
do.
does
the
of
Boettcher,
not
raise
a
colorable constitutional claim.
Similarly, plaintiff's argument regarding equitable tolling
provides no relief. Plaintiff did not use all due diligence. See
Santa Maria v. Pacific Bell, 202 F.3d 1170, 1178
(9th Cir. 2000)
(stating that equitable tolling may be applied if,
due
diligence,
a
plaintiff
is
unable
to
despite all
obtain
vital
information). Plaintiff and her attorney could have submitted to
the Appeals Council the same materials submitted to this Court
in response to the motion to dismiss; again, they did not do so.
As a result,
rights.
the plaintiff was not prevented from asserting her
See Burnett v. New York Cent. R. Co.,
( 1965) .
9 - OPINION AND ORDER
380 U.S.
424,
429
Consequently, the defendant's motion to dismiss for lack of
subject matter jurisdiction is granted.
CONCLUSION
Defendant's motion to dismiss
IT IS SO ORDERED.
Dated this
L
day of
(doc. 13) is GRANTED.
~
~beL,"
2013.
Ann Aiken
United States District Judge
10 - OPINION AND ORDER
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