ADAMIK v. ASTRUE
Filing
12
MEMORANDUM OPINION re: Commissioner's 5 MOTION to Dismiss 4 Complaint. The Commissioner's motion to dismiss will be granted and Plaintiff's complaint will be dismissed for lack of sujbect matter jurisdiction. SEE MEMORANDUM OPINION FOR FURTHER DETAILS. Signed by Judge Gustave Diamond on 7/31/12. (gpr)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DANIEL PAUL ADAMIK,
Plaintiff,
v.
Civil Action No. 11-1429
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
MEMORANDUM OPINION
On November 8, 2011, Daniel Paul Adamik ("plaintiff") filed
a complaint in this court seeking judicial review of a decision of
the
Commissioner
of
Social
Security
("Commissioner")
denying
plaintiff's application for disability insurance benefits under
Title II of the Social Security Act ("Act").
Presently before the
court
dismiss
is
complaint
the
Commissioner's
(Document
Commissioner's reply.
jurisdiction,
the
No.5),
motion
to
plaintiff's
plaintiff's
response
and
the
Because this court lacks subject matter
Commissioner's
motion
will
be
granted
and
plaintiff's complaint will be dismissed with prejudice.
On January 29,
disability
insurance
2009,
plaintiff
benefits
which
Disapproved Claim dated May 21, 2009.
plaintiff at his address in Sarver ,
filed an application for
was
denied by Notice
of
The Notice was mailed to
Pennsylvania.
The Notice
advised plaintiff that he had 60 days from receipt of the Notice
""Aon
(Rev 8/82)
to request a hearing before an Administrative Law Judge ("ALJ")
and that SSA would presume receipt within 5 days of the date of
the notice.
Accordingly, plaintiff's deadline for requesting a
hearing before an ALJ was July 25, 2009.
On January 15,
2010,
plaintiff filed a request for an ALJ
hearing, nearly 8 months after the Notice of Disapproved claim and
almost 6 months after the deadline for filing such a request.
December 6,
2010,
On
the ALJ issued an Order of Dismissal finding
that plaintiff had not established good cause for his failure to
file a request for a hearing within the allotted time period.
On
September 8, 2011, the Appeals Council denied plaintiff's request
for review of the ALJ's December 6,
2010, Order of Dismissal.
Plaintiff subsequently initiated this pending civil action through
the filing of a complaint on November 8, 2011.
The government has filed a
complaint
U.S.C.
for
§405(g)
lack of
motion to dismiss plaintiff's
subject matter
authorizes
judicial
jurisdiction because
review
only
of
a
42
ftfinal
decision ... made after a hearing," and plaintiff never received
a final decision after a hearing because his claim was dismissed
for failure to establish good cause for not requesting a hearing
within the allotted time period.
Although plaintiff concedes that
§405(g) is the exclusive jurisdictional basis for judicial review
under the Act, he nevertheless argues that this court has subject
matter
jurisdiction
constitutional claim.
because
he
has
raised
a
colorable
Upon review of the parties' briefs and the
applicable case law, this court finds that plaintiff's complaint
must be dismissed for lack of subject matter jurisdiction.
'!l;,AOn
(Rev. 8/82)
- 2
Federal
court
jurisdiction
expressly limited by the Act.
(3d Cir. 1999).
in
social
security
cases
is
Tobak v. Apfel, 195 F.3d 183, 186
Pursuant to 42 U.S.C. §405(h), "[n]o ... decision
of the Commissioner of Social Security shall be reviewed by any
person,
tribunal
provided."
or
governmental
agency
except
as
herein
The Act limits such review exclusively to "any final
decision of
the Commissioner of Social Security made after a
hearing to which
[the claimant]
was a party
....
II
42 U.S.C.
§405 (g) .
"A 'final decision'
is a particular type of agency action,
and not all agency determinations are final decisions."
Bacon v.
Sullivan, 969 F.2d 1517, 1519 (3d Cir. 1992) (holding that appeals
council's decision not to consider untimely request for review of
ALJ's decision,
filed one day late,
was not
"final decision"
subject to judicial review)i Nicosia v. Barnhart, 160 Fed Appx.
186, 187-188
(3d. Cir. 2005)
(pre hearing dismissal of untimely
request for hearing on overpayment of benefits not final decision
subject to judicial review).
It is well-settled that \\ [a] pre-
hearing dismissal ... of an untimely request for a hearing ... is
not a
'final decision'
under
subject to judicial review.
[§405 (g)]"
DeLeon v.
and generally is not
Commissioner of Social
Security. 191 Fed. Appx. 88, 90 (3d Cir. 2006)
i
see also Lucas v.
Astrue, 2011 WL 5154106 (W.D. Pa., Oct. 21, 2011) (J. Fischer).
The sole exception to this jurisdictional bar is "where the
claimant
raises
a
colorable
constitutional
claim"
"collateral to the substantive claim of entitlement."
'
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